BOC_2016_MERCANTILE.pdf

2016

University of the Philippines College of Law Bar Reviewer

Academics Committee Heads Evert Callueng Paulo Faustino Carlos Hernandez Audrey Ng Desiree Sokoken

3RD WEEK

MERCANTILE LAW

UP Law Bar Operations Commission 2016

UP Law Bar Operations Commission 2016

UP LAW BAR OPS 2016

Table of Contents CREDIT TRANSACTIONS

1

I. LETTERS OF CREDIT (L/C)

2

A. Definition and Nature of Letter of Credit A.1 Definition A.2 Purpose A.3. Essential Requisites of Letters of Credit A.4. Nature A.5. Duration of Letters of Credit A.6. Types of letters of credit B. Parties to a Letter of Credit B.1. Rights and Obligations of the Parties C. Basic Principles of Letter of Credit C.1. Doctrine of Independence C.2. Fraud Exception Principle C.3. Doctrine of Strict Compliance

2 2 2

II. TRUST RECEIPTS LAW [PD 115 (1973)]

5

A. Definition/Concept of a Trust Receipt Transaction A.1. Loan/Security Feature A.2. Ownership of the Goods, Documents and Instruments Under a Trust Receipt B. Rights of the Entruster B.1. Validity of the Security Interest As Against the Creditors of the Entrustee/Innocent Purchasers For Value C. Obligation and Liability of the Entrustee C.1. Payment/Delivery of Proceeds of Sale or Disposition of Goods, Documents or Instruments C.2. Return of Goods, Documents or Instruments In Case of Non-Sale C.3. Liability For Loss of Goods, Documents or Instruments C.4. Penal Sanction If Offender is a Corporation D. Remedies Available D.1. Upon default or failure of the entrustee to comply with the terms and conditions D.2. In case of failure to turn over the proceeds of the sale, or failure to return in case of non-sale E. Warehouseman’s Lien E.1. Claims included in the warehouseman’s lien E.2. Against what property the lien may be enforced

2 2 2 3 3 3 4 4 4 5

5 6 6 6 6 7 7 7 7 7 7 7 8 8 8 8

E.3. Satisfaction of lien by sale E.4. At any time before the goods are so sold E.5. Effect of sale E.6. Other methods of enforcing lien E.7. How lien may be lost E.8. Lien does not preclude other remedies

8 9 9 9 9 9

NEGOTIABLE INSTRUMENTS LAW

10

I. DEFINITION

11

A. Definition and Purpose

11

II. FORMS AND INTERPRETATION

12

A. Requisites of Negotiability A.1. In writing and signed by the maker or drawer A.2. Containing an unconditional promise to pay or order to pay a sum certain in money A.3. Payable on demand, or at a fixed or determinable future time A.4. Payable to order or to bearer A.5. Drawee must be named or designated with reasonable certainty B. Determination of Negotiability

12

III. KINDS OF NEGOTIABLE INSTRUMENTS

17

A. Promissory Note A.1. Kinds of Promissory Notes B. Bill of Exchange B.1. Kinds of bills of exchange B.2. Instances when a bill of exchange may be treated as a promissory note

17 17 17 18

IV. COMPLETION AND DELIVERY

19

A. Steps in the Execution Of Negotiable Instruments B. Insertion of Date C. Effect of Ante-Dating and Post-Dating D. Completion of Blanks E. Incomplete and Undelivered Instruments F. Complete and Undelivered Instruments G. Incomplete and Delivered Instruments H. Complete And Delivered Instruments

12 12 14 15 16 16

18

19 19 19 19 19 20 20 20

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V. SIGNATURE

22

A. Signing in Trade Name B. Signature of Agent B.1. Liability of an agent C. Signature Per Procuration D. Indorsement by Minor or Corporation F. Forgery F.1 Persons precluded from setting up defense of forgery F.2 Rules on forgery G. Acceptance and Payment under Mistake

22 22 22 22 23 23

VI. CONSIDERATION

28

A. Who is a Holder for Value (HFV)? B. Burden of Proof - Presumption of Consideration C. Effect Of Want Of Consideration

28

VII. ACCOMMODATION PARTY A. Liability of an Accommodation Party B. Accommodation Party as Surety

29 29 29

VIII. NEGOTIATION

30

A. Negotiation Distinguished from Assignment B. Modes of Negotiation B.1. By delivery – if payable to bearer B.2. by indorsement completed by delivery – if payable to order C. Kinds of Indorsement C.1. As to manner of future method of negotiation C.2. As to title transferred C.3. As to kind of liability assumed by indorser C.4. As to presence/absence of express limitations C.5. Other kinds of indorsement

23 23 26

28 28

30 30 30 31 31 32 32 33 33 34

IX. RIGHTS OF THE HOLDER

34

A. Definition of a Holder A.1. Rights of a holder B. Holder in Due Course [HDC] B.1. Who are holders in due course B.2. The significance of due course holding B.3. Rights of a holder in due course B.4. Requisites of a holder in due course B.5. Presumption in favor of due course holding

34 34 35 35 35 36 36 39 ii

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B.6. Holder not in due course C. Defenses Against the Holder

39 39

X. LIABILITIES OF PARTIES

40

A. Parties Primarily Liable A.1. Maker A.2. Acceptor B. Parties Secondarily Liable B.1. Drawer B.2. Indorsers B.3. Order of liability among Indorsers

40 40 40 40 41 41 42

XI. WARRANTIES A. Maker’s Warranties B. Drawer’s Warranties C. Acceptor’s Warranties D. General Indorser’s Warranties E. Qualified Indorser’s Warranties

42 42 42 42 43 43

XII. PRESENTMENT FOR PAYMENT

43

A. Presentment; Meaning B. Date and Time of Presentment C. Necessity of Presentment for Payment D. Parties to Whom Presentment for Payment Should Be Made E. Dispensation with Presentment for Payment F. Dishonor By Non-Payment

43 43 44

XIII. NOTICE OF DISHONOR

45

A. Parties to Be Notified A.1. To whom in general A.2. If given by agent A.3. If party is dead A.4. To partners A.5. To joint parties A.6. To bankrupt B. When Given C. When Not Necessary to Give to Drawer D. When Not Necessary to Give to Indorser E. Who Will Benefit F. Parties Who May Give Notice of Dishonor F.1. Who should give G. Effect of Notice H. Form of Notice I. Waiver J. Dispensation with Notice K. Effect of Failure to Give Notice

45 45 45 45 45 45 45 45 45 46 46 46 46 46 46 47 47 47

XIV. DISCHARGE OF NEGOTIABLE INSTRUMENT

47

44 44 44

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MERCANTILE LAW

A. Discharge of Negotiable Instrument B. By Payment in Due Course C. By Intentional Cancellation D. By Other Acts That Discharge a Simple Contract E. By Reacquisition of Principal Debtor in His Own Right F. By Material Alteration G. Discharge of Parties Secondarily Liable H. Right of Party Who Discharged Instrument I. Renunciation By Holder

47 47 48

C. Effects D. Presentment for Payment D.1. Time E. Effect Of Delay

56 57 57 57

48

INSURANCE

58

49 49 49

I. CONCEPT OF INSURANCE

59 59 59 59

XV. MATERIAL ALTERATION

51

A. Concept B. Changes in the Following Constitute Material Alterations C. Effect of Material Alteration

51

A. Contract of Insurance A.1. Definition A.2. Form A.3. Insurance and gambling distinguished B. Doing or Transacting Insurance Business C. Governing law D. Parties to an Insurance Contract E. Bancassurance F. Pre-need plans

XVI. ACCEPTANCE

52

A. Definition B. Requisites C. Kinds of Acceptance D. Proof of acceptance E. Manner E.1. Express acceptance E.2. Implied acceptance F. Time for Acceptance G. Rules Governing Acceptance

50 50

51 51

59 60 60 60 61 61

II. ELEMENTS OF AN INSURANCE CONTRACT

62

52 52 52 52 52 52 52 52 52

A. In General B. Subject Matter C. Cause and Risk of Loss or Damage D. Consideration E. Risk-Distributing Scheme F. Meeting of the Minds

62 62 62 62 62 62

III. CHARACTERISTICS OF AN INSURANCE CONTRACT

63

XVII. PRESENTMENT FOR ACCEPTANCE

53

A. Requisites B. When Presentment for Acceptance Necessary C. When Presentment for Acceptance Excused D. Time/Place/Manner of Presentment D.1. When Made E. What Constitutes Sufficient Presentment? F. How Made G. Effect of Failure to Make Presentment H. Dishonor by Non-Acceptance

53

A. In General B. Consensual C. Voluntary D. Aleatory E. Executory and Unilateral But Synallagmatic F. Conditional G. Contract of Indemnity (For Non-Life Insurance) H. Contract of Adhesion (Fine Print Rule) I. Personal Contract J. Property (For Life Insurance) K. Uberrimae Fides Contract

63 63 63 63

IV. CLASSES OF INSURANCE

65

XVIII. PROMISSORY NOTES

55

XIX. CHECKS

56

65 65 65

A. Definition B. Kinds

56 56

A. Marine Insurance A.1. Definition A.2. Divisions A.3. Bottomry and respondentia distinguished

53 53 54 54 54 54 54 54

iii

63 63 64 64 64 64 64

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A.4. Risks A.4.A. Perils of the sea A.4.B. Perils of the ship A.5. Loss A.6. Abandonment A.7. Average B. Fire insurance B.1. Definition B.2. Risks B.3. Alterations in use or condition B.4. Measure of indemnity C. Casualty Insurance C.1. Definition C.2. Intentional and accidental injury distinguished C.3. Divisions D. Suretyship E. Life Insurance E.1. Definition E.2. Types E.3. Examples of life insurance policies E.4. Risks F. Compulsory Motor Vehicle Liability Insurance

66 66 66 66 67 68 69 69 70 70 70 71 71

V. INSURABLE INTEREST

76

A. In General A.1. When insurable interest should exist A.2. Change of interest B. In Life/Health insurance B.1. In life insurance B.2. Interest in health insurance B.3. Transfer of policy C. In Property Insurance C. 1. Time of existence C.2. Transfer of policy C.3. Measure of indemnity C.4. Interest in property and life distinguished D. Double and Over Insurance; Reinsurance D.1. Double insurance D.2. Rules for payment D.3. Double and over insurance distinguished D.4. Reinsurance D.5. Double insurance and reinsurance distinguished E. Multiple or Several Interests on Same Property E.1. Open loss payable mortgage clause E.2. Union mortgage or standard mortgage clause

76 77 77 77 78 79 79 79 80 80 80

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VI. PERFECTION OF THE INSURANCE CONTRACT A. Offer and Acceptance/Consensual B. Premium payment B.1. Authority of agent to receive premium B.2. Payment by post-dated check B.3. Non-payment of premium B.4. Excuses for non-payment C. Cover-Notes D. Non-Default Options in Life Insurance D.1. Cash surrender value (CSV) D.2. Alternative to CSV E. Reinstatement of a Lapsed Life Insurance Policy F. Refund of premiums

71 71 72 72 72 73 74 74

VII. RESCISSION OF INSURANCE CONTRACTS A.1. Proof of fraud in concealment A.2. Test of materiality A.3. Effects A.4. Concealment in marine and ordinary private insurance distinguished A.5. Concealment in non-medical insurance A.6. Matters which must be disclosed even in the absence of inquiry A.7. Matters which need not be disclosed B. Misrepresentation/omissions B.1. Kinds of representations B.2. Test of materiality B.3. Effects C. Breach of Warranties C.1. Warranties, riders, and endorsements C.2. Kinds of warranties C.3. Effect

75

80 81 81 81 82 82 82 82 83

84 84 84 85 85 85 86 86 86 86 87 87 87 88 88 88 89 89 89 90 90 90 90 91 91 92 92 93 93

VIII. CLAIMS SETTLEMENT AND SUBROGATION

94

A. Concept of Loss A.1. Causes of loss A.2. Liability for loss B. Notice and Proof of Loss B.1. Notice of loss B.2. Proof of Loss C. Guidelines on Claims Settlement C.1. Unfair claims settlement; sanctions C.2. Prescription of action

94 94 94 94 94 95 96 97 97

IX. INSURANCE COMMISSIONER

98

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MERCANTILE LAW

A. Jurisdiction and Adjudicatory Powers B. Revocation of Certificate of Authority C. Liquidation of Insurance Company

98 99 99

B. Limitation of Liability C. Willful misconduct D. Jurisdiction

132 133 134

TRANSPORTATION LAW

58

CORPORATION CODE

135

I. CORPORATION

136

I. COMMON CARRIERS

101

A. Concept B. Diligence Required C. Liabilities

101 103 104

A. Definition B. Attributes of the Corporation

136 136

II. CLASSES OF CORPORATIONS

137

II. VIGILANCE OVER GOODS

104

A. Liability, in General B. Exempting Causes C. Contributory Negligence D. Duration of Extraordinary Responsibility for Goods E. Stipulation for Limitation of Liability F. Liability for baggage of passengers

104 104 107

A. Stock Corporation B. Non-Stock Corporation C. Other Corporations

137 137 137

III. NATIONALITY OF CORPORATIONS

140

A. Place of Incorporation Test B. Control Test C. Grandfather Rule

140 140 141

IV. CORPORATE JURIDICAL PERSONALITY A. Doctrine of Separate Juridical Personality B. Doctrine of Piercing the Corporate Veil

143 143 144

V. INCORPORATION AND ORGANIZATION

145

A. Promoter B. Number and Qualifications of Incorporators C. Corporate Name — Limitations on Use of Corporate Name D. Corporate Term E. Minimum Capital Stock and Subscription Requirements F. Articles of Incorporation G. Registration and Issuance of Certificate of Incorporation H. Adoption of By-Laws

145

VI. CORPORATE POWERS

156

III. SAFETY OF PASSENGERS

107 108 110 110 112

A. Liability, in General B. Void Stipulations C. Duration of Liability D. Liability for Acts of Others E. Contributory Negligence F. Extent of Liability for Damages

112 112 112 114 115 115

IV. BILL OF LADING

117

A. Three-Fold Character B. Refusal to Transport C. Delivery of Goods D. Period for Filing Claims E. Period for Filing Actions

117 118 118 119 120

V. ADMIRALTY AND MARITIME COMMERCE

147 147 148 148 148 153 154

121

A. Charter Parties B. Liability of Ship Owners and Shipping Agents C. Accidents and Damages in Maritime Commerce D. Carriage of Goods by Sea Act (COGSA)

121

VI. INTERNATIONAL AIR TRANSPORT (The Warsaw Convention)

132 132

A. Applicability

132

A. General Powers, Theory of General Capacity B. Specific Powers, Theory of Specific Capacity C. How (Corporate Powers) Exercised D. Trust Fund Doctrine

122 125 129

v

156 156 161 164

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VII. BOARD OF DIRECTORS AND TRUSTEES

MERCANTILE LAW

BANKING

227

165 I. THE NEW CENTRAL BANK ACT [RA 7653] 228

A. Doctrine of Centralized Management B. Business Judgment Rule C. Tenure, Qualifications and Disqualifications of Directors or Trustees D. Elections E. Removal F. Filling of Vacancies G. Compensation [Sec. 30] H. Fiduciary Duties and Liability Rules I. Responsibility for Crimes J. Inside Information K. Contracts L. Executive Committee M. Meetings of BoD

165 166

VIII. STOCKHOLDERS AND MEMBERS A. Rights of a Stockholder and Members B. Participation in Management C. Proprietary Rights D. Remedial Rights E. Obligation of a Stockholder F. Meetings

176 176 177 182 187 188 190

A. State Policies B. Salient Features C. Creation of the BSP C.1. Nature of the BSP C.2. Capitalization D. Responsibility and Primary Objective D.1. Primary Objectives D.2. Other Responsibilities D.3. BSP as transferee of Philippine Central Bank powers E. Monetary Board F. How the BSP Handles Banks in Distress F.1. Conservatorship F.2. Closure F.3. Receivership F.4. Liquidation G. How the BSP Handles Exchange Crisis G.1. Legal Tender Power G.2. Retirement of Old Notes and Coins G.3. Rate of Exchange

167 168 169 169 169 170 172 172 173 174 174

IX. CAPITAL STRUCTURE A. Subscription Agreements B. Consideration for Stocks C. Shares of Stock D. Payment of Balance of Subscription E. Certificate of Stock F. Stock and Transfer Book G. Disposition and Encumbrance of Shares

192 192 193 194 200 201 204 204

X. DISSOLUTION AND LIQUIDATION A. Modes of Dissolution B. Methods of Liquidation

206 206 209

XI. OTHER CORPORATIONS A. Close Corporations B. Non-Stock Corporations C. Religious Corporations D. Foreign Corporations

211 211 217 219 220

XVII. MERGERS AND CONSOLIDATIONS A. Definition and Concept B. Constituent vs. Consolidated Corporation C. Plan of Merger or Consolidation D. Articles of Merger or Consolidation E. Procedure F. Effectivity G. Limitations

224 224 224 225 225 225 226 226

II. LAW ON SECRECY OF BANK DEPOSITS [RA NO. 1405, AS AMENDED] A. Policy B. Purpose C. Prohibited Acts D. Deposits Covered E. Exceptions F. Power of the Ombudsman to Examine Accounts G. Garnishment of Deposits H. Confidentiality of Foreign Currency Deposits I. Penalties III. GENERAL BANKING LAW OF 2000 [RA 8791] A. Introduction A.1. Definition of Banks A.2. Classification of banks A.3. Quasi-Banks and Trust Entities A.4. Deposit Substitutes A.5. Trust Entities A.6 Core Banking Functions B. Powers of a Commercial Bank C. Distinction of Banks from Quasi-Banks and Trust Entities vi

228 228 228 228 228 228 228 229 229 229 230 231 232 233 234 237 237 237 238 238 238 238 238 239 239 240 241 241 241

242 242 242 242 243 243 243 243 243 244

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D. Bank Powers and Liabilities E. Diligence Required of Banks F. Fiduciary Duty G. Nature of Bank Funds and Bank Deposits H. Stipulation on Interests I. Grant of Loans and Security Requirements (Prudential Measures) I.1. Ratio of Net Worth to Total Risk Assets I.2. Purpose I.3. Effect of Non-compliance I.4. Single Borrower’s Limit I.5. Restrictions on Bank Exposure to DOSRI (Directors, Officers, Stockholders, and their Related Interests) I.6. Loan-Loss Provisioning I.7. Reserves I.8. PDIC Insurance I.9.Equity Investment Limits

245 248 249 250 251

INTELLECTUAL PROPERTY LAW

256

I. INTELLECTUAL PROPERTY RIGHTS IN GENERAL

257

251 251 251 251 251 253 253 254 254 255

A. State Policies B. International Conventions Governing Intellectual Property Rights C. Intellectual Property Rights D. Differences Between Copyrights, Trademarks and Patents D.1. Patentable Inventions D.2. Trademark D.3. Trade Name D.4. Copyright D.5. Other Forms of Intellectual Property E. Technology Transfer Arrangements

257

II. PATENTS

260

A. What Are Patentable? A.1. Inventions A.2. Utility model A.3. Industrial designs A.4. Lay-out designs (topographies of integrated circuits) B. Non-Patentable Inventions C. Ownership of a Patent C.1. Right to a patent C.2. First-to-file rule C.3. Inventions created pursuant to a commission C.4. Right of priority D. Term of Patent

260 260 261 261

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E. Cancellation of Patent E.1. Grounds for cancellation of a patent E.2. Requirement of the petition E.3. Notice of hearing E.4. Effect of cancellation of patent or claim F. Remedy of the True and Actual Inventor G. Rights Conferred by a Patent H. Limitations of Patent Rights H.1. Prior user H.2. Use by the government I. Patent Infringement I.1. Contributory infringer I.2. Doctrine of patent exhaustion I.3. Tests in patent infringement I.4. Criminal action for repetition of infringement I.5. Infringement action by foreign national I.6. Defenses in action for infringement J. Licensing J.1. Voluntary J.2. Compulsory

264 264 264 264

III. TRADEMARKS

272

A. Definition of Marks, Collective Marks, Trade Names B. Acquisition of Ownership of Mark C. Acquisition of Ownership of Trade Name D. Non-Registrable Marks D.1. Doctrine of secondary meaning E. Prior Use of Mark as a Requirement E.1. Use of mark as a requirement E.2. Non-use of mark when excused F. Well-Known Marks F.1. Determinants F.2. Protection extended to well-known marks F.3. Rights conferred by a well-known mark G. Rights Conferred by Registration G.1. Limitations on such rights G.2. Assignment and transfer of application and registration G.3. Protection limited to goods specified in registration certificate H. Use by Third Parties of Names, Etc. Similar to Registered Mark I. Infringement and Remedies I.1. Trademark infringement I.2. Tests to determine infringement I.3. False designations of origin; false description or representation

257 258 258 258 258 258 258 259 259

261 262 262 262 262 263 263 263 vii

264 264 265 265 266 266 267 267 267 267 268 268 268 269 269 270

272 273 273 274 275 275 275 275 275 276 276 276 277 277 277 278 278 278 278 279 280

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I.4. Infringement of name and marks of ownership stamp on containers I.5. Damages I.6. Requirement of notice I.7. Other remedies available: I.8. Limitations to actions for infringement J. Unfair Competition K. Trade Names or Business Names L. Collective Marks

H. Common Rules on Admissibility of Evidence I. Evidence in Patent Cases J. Evidence in Trademark Infringement and Unfair Competition Cases K. Evidence in Copyright Cases L. Order of Destruction

280 280 281 281 281 282 284 284

IV. COPYRIGHTS

285

A. Definition B. Basic Principles C. Copyrightable Works C.1. Original literary and artistic works C.2. Derivative works D. Non-Copyrightable Works E. Rights of Copyright Owner E.1. Copyright or economic rights E.2. When copyright vests E.3. Moral rights E.4. Rights to proceeds in subsequent transfers (droit de suite or follow up rights) E.5. Neighboring rights F. Rules On Ownership Of Copyright F.1. Ownership of copyright F.2. Duration of copyright F.3. Presumption of authorship F.4. Transfer or assignment of copyright G. Limitations on Copyright H. Copyright Infringement

285 285 286 286 287 288 289 289 290 290 291 291 294 294 295 296 296 296 297

IV. RULES OF PROCEDURE FOR INTELLECTUAL PROPERTY RIGHTS CASES 301 A. In What Courts Applicable B. Applicability of Regular Rules C. Commencement of Civil Action C.1. Pleadings C.2. Who may file C.3. Form and contents of the petition C.4. Prohibited pleadings C.5. Failure to file complaint where a writ of search and seizure is issued C.6. Summons C.7. Answer D. Modes of Discovery E. Pre-Trial F. Clarificatory Hearings and Trial G. Commencement of Criminal Action

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301 301 301 301 301 301 302 302 302 302 302 303 303 303 viii

303 303 304 305 305

SPECIAL LAWS

306

I. THE CHATTEL MORTGAGE LAW AND REAL ESTATE MORTGAGE LAW

307

II. ANTI-MONEY LAUNDERING ACT

307

A. Policy of the Law B. Covered Institutions C. Obligations of Covered Institutions D. Covered Transactions E. Suspicious Transactions F. When is Money Laundering Committed G. Unlawful Activities or Predicate Crimes H. Anti-Money Laundering Council (AMLC) I. Freezing of Monetary Instrument or Property J. Authority to Inquire into Bank Deposits

307 307 308 310 310 311 312 314

III. FOREIGN INVESTMENTS ACT

317

A. Policy of the Law B. Definition of Terms B.1. Foreign Investment B.2. “Doing Business” in the Philippines B.3. Export Enterprise B.4. Domestic Market Enterprise C. Registration of Investments on NonPhilippine Nationals D. Foreign Investments in Export Enterprise E. Foreign Investment in Domestic Market Enterprise F. Foreign Investment Negative List

317 317 317 318 318 318

315 316

318 319 319 319

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CREDIT TRANSACTIONS

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CREDIT TRANSACTIONS

PAGE 1 OF 320

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I. Letters (L/C)

CREDIT TRANSACTIONS

Of

A. DEFINITION AND LETTER OF CREDIT

Credit NATURE

OF

A.1 DEFINITION Letters of credit (L/C) are those issued by one merchant to another, or for the purpose of attending to a commercial transaction. [Art. 567, Code of Commerce] A written instrument whereby the writer requests or authorizes the addressee to pay money or deliver goods to a third person and assumes responsibility for payment of debt therefor to the addressee [Transfield Philippines v. Luzon Hydro, G.R. No. 146717 (2004)]. An engagement by a bank or other person made at the request of a customer that the issuer shall honor drafts or other demands of payment upon compliance with the conditions specified in the credit [Prudential Bank v. Intermediate Appellate Court, G.R. No. 74886 (1992)]

Those which do not have one of these conditions shall be mere letters of recom m endation. [Art. 568, Code of Commerce] A.4. NATURE (1) Financial device – L/Cs are developed by merchants as a convenient and relatively safe mode of dealing with sales of goods to satisfy the seemingly irreconcilable interests of a seller, who refuses to part with his goods before he is paid, and a buyer, who wants to have control of the goods before paying [Bank of America, NT&SA v. Court of Appeals, G.R. No. L-105395 (1993)] A letter of credit is one of the modes of payment, set out in Sec. 8, Central Bank Circular No. 1389, "Consolidated Foreign Exchange Rules and Regulations," dated 13 April 1993, by which commercial banks sell foreign exchange to service payments for, e.g., commodity imports [Reliance Commodities v. Daewoo, G.R. No. L100831 (1993)] (2) Composite of three distinct contracts – An L/C transaction involves three distinct but intertwined relationships: (a) First Contract between the party applying for the L/C (buyer/importer/account party) and the party for whose benefit the L/C is issued (seller/exporter/beneficiary).

A.2 PURPOSE Its purpose is to substitute for, and support, the agreement of the buyer-importer to pay money under a contract or other arrangement, but does not necessarily constitute as a condition for the perfection of such arrangement [Reliance Commodities, Inc. v. Daewoo Industrial Co., Ltd., G.R. No. L100831 (1993)]

(b) Second Contract between the buyer and the issuing bank. This contract is sometimes called the "Application and Agreement" or the "Reimbursement Agreement." (c) Third Contract between the issuing bank and the seller, in order to support the contract, under (a) above [Reliance Commodities v. Daewoo, G.R. No. L-100831 (1993)]

A.3. ESSENTIAL REQUISITES OF LETTERS OF CREDIT: (1) Issued in favor of a definite person and not to order. (2) Limited to a fixed and specified amount, or to one or more undetermined amounts, but within a maximum the limits of which has to be stated exactly.

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A.5. DURATION OF LETTERS OF CREDIT (1) Period stipulated by the parties; or (2) If no period is fixed; PAGE 2 OF 320

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(a) 6 months from date if used in the Philippines

the beneficiary that the confirming bank will undertake the issuing bank's obligation as its own according to the terms and conditions of the credit [Feati Bank and Trust Co. v. CA, G.R. No. 94209 (1991)]

(b) 12 months if abroad A.6. TYPES OF LETTERS OF CREDIT I. AS TO THE TYPE OF TH E MAIN CONTRACT Commercial Letter of Credit Method of payment in a contract of sale Reduce the risk of non-payment of purchase price under a contract of sale The seller can obtain payment from the issuer of L/C upon the presentation of documents that show he has taken affirmative steps to comply with the sale agreement Beneficiary must demonstrate that he has performed the contract

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B. PARTIES TO A LETTER OF CREDIT

Standby Letter of Credit Used to guarantee or secure an obligation in a non-sale transaction Reduce the risk of non-performance of a contractual obligation The credit is payable upon certification of a party’s nonperformance of the agreement

B.1. RIGHTS AND OBLIGATIONS OF THE PARTIES There would be at least three parties to a letter of credit: (1) Buyer/Exporter/Account Party – one who procures the letter of credit and obliges himself to reimburse the issuing bank upon receipt of documents of title. (2) Issuing Bank – the bank which undertakes: (1) to pay the seller upon receipt of the draft and proper documents of title; and (2) to surrender the documents to the buyer upon reimbursement. The obligation of the issuing bank to pay the seller is direct, primary, absolute, definite and solidary with the buyer, in the absence of stipulation in the letter of credit [Metropolitan Waterworks and Sewerage System v. Daway, G.R. No. 160732 (2004)]

Beneficiary must certify that his obligor has not performed the contract

II. AS TO REVOCABILITY (a) Revocable L/C - One which can be revoked by the issuing bank without the consent of the buyer and seller (b) Irrevocable L/C - One which the issuing bank cannot revoke without the consent of the buyer and seller [Feati Bank and Trust Co. v. CA, G.R. No. 94209 (1991)]

(3) Seller/Im porter/Beneficiary – one who ships the goods to the buyer in compliance with a contract of sale and delivers the documents of title and draft to the issuing bank to recover payment. Depending on the transaction, the number of parties to the letter of credit may be increased. Thus, the different types of correspondent banks: (1) Advising/Notifying Bank – the bank which conveys to the seller the existence of the credit.

III. AS TO THE OBLIGATION ASSUMED BY CORRESPONDENT BANK (a) Unconfirm ed L/C - One which continues to be the obligation of the issuing bank (b) Confirmed L/C - One which is supported by the absolute assurance to

PAGE 3 OF 320

The bank assumes no liability except to notify and/or transmit to the seller the existence of the letter of credit. A notifying bank is not a privy to the contract of sale between the buyer and

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the seller, its relationship is only with that of the issuing bank and not with the beneficiary to whom he assumes no liability. The bank may suggest to the seller its willingness to negotiate, but this fact alone does not imply that the notifying bank promises to accept the draft drawn under the documentary credit [Feati Bank and Trust Co. v. CA, G.R. No. 94209 (1991)] (2) Confirming Bank – the bank which lends credence to the letter of credit issued by a lesser known issuing bank. The bank assumes a direct obligation to the seller and its liability is a primary one as if the bank itself had issued the letter of credit [Feati Bank and Trust Co. v. CA, G.R. No. 94209 (1991)] (3) Negotiating Bank – the bank which discounts the draft presented by the seller. The bank buys or discounts a draft under the letter of credit. Its liability is dependent upon the stage of the negotiation. If before negotiation, it has no liability with respect to the seller but after negotiation, a contractual relationship will then prevail between the negotiating bank and the seller [Feati Bank and Trust Co. v. CA, G.R. No. 94209 (1991)] (4) Paying Bank – the bank which undertakes to encash the drafts drawn by the seller.

C. BASIC PRINCIPLES OF LETTER OF CREDIT C.1. DOCTRINE OF INDEPENDENCE The principle of independence assures the seller or the beneficiary of prompt payment independent of any breach of the main contract and precludes the issuing bank from determining whether the main contract is actually accomplished or not. Under this principle, banks assume no liability or responsibility for the form, sufficiency, accuracy, genuineness,

MERCANTILE LAW

falsification or legal effect of any documents, or for the general and/or particular conditions stipulated in the documents or superimposed thereon, nor do they assume any liability or responsibility for the description, quantity, weight, quality, condition, packing, delivery, value or existence of the goods represented by any documents, or for the good faith or acts and/or omissions, solvency, performance or standing of the consignor, the carriers, or the insurers of the goods, or any other person whomsoever [Transfield Philippines v. Luzon Hydro, G.R. No. 146717 (2004] The independent nature of the letter of credit may be— (a) Independent in toto - the credit is independent from the justification aspect and is a separate obligation from the underlying agreement; (b) Only as to the justification aspect like in a commercial letter of credit or repayment standby, which is identical with the same obligations under the underlying agreement. [Transfield Philippines v. Luzon Hydro, G.R. No. 146717 (2004] C.2. FRAUD EXCEPTION PRINCIPLE The principle that limits the application of the independence principle only to instances where it would serve the commercial function of the credit and not when fraud attends the transaction. In the case of Transfield Philippines v. Luzon Hydro [G.R. No. 146717 (2004)], the petitioner alleged misrepresentation as constituting fraud. The Court, however, made no ruling as to whether the same indeed constitutes fraud. Petitioner asserts that the "fraud exception" exists when the beneficiary, for the purpose of drawing on the credit, fraudulently presents to the confirming bank, documents that contain, expressly or by implication, material representations of fact that to his knowledge are untrue. In such a situation, petitioner insists, injunction is recognized as a remedy available to it. Citing Dolan's treatise on letters of credit, petitioner argues that the independence

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principle is not without limits and it is important to fashion those limits in light of the principle's purpose, which is to serve the commercial function of the credit. If it does not serve those functions, application of the principle is not warranted, and the common law principles of contract should apply [Transfield Philippines v. Luzon Hydro, G.R. No. 146717 (2004)] The untruthfulness of a certificate accompanying a demand for payment under a standby credit may qualify as fraud sufficient to support an injunction against payment. The remedy of injunction is available when the following are present: (1) Clear proof of fraud; (2) Fraudulent abuse of the independent purpose of the letter of credit and only fraud under the main agreement and (3) Irreparable injury might follow if injunction is not granted or the recovery of damages would be seriously damaged C.3. DOCTRINE OF STRICT COMPLIANCE The settled rule in commercial transactions involving letters of credit requires that the documents tendered by the seller must strictly conform to the terms of the letter of credit. Otherwise, the issuing bank or the concerned correspondent bank is not obliged to perform its undertaking under the contract. The tender of documents by the beneficiary (seller) must include all documents required by the letter. A correspondent bank which departs from what has been stipulated under the letter of credit, as when it accepts a faulty tender, acts on its own risks and it may not thereafter be able to recover from the buyer or the issuing bank, as the case may be, the money thus paid to the beneficiary. (Feati v. Court of Appeals, 1991)

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II. Trust Receipts Law [PD 115 (1973)] A. DEFINITION/CONCEPT OF A TRUST RECEIPT TRANSACTION A trust receipt is a written or printed document whereby the entrustee binds himself: (1) to hold the designated goods, documents or instruments in trust for the entruster, and (2) to sell or otherwise dispose of the goods, documents or instruments with the obligation to turn over to the entruster the proceeds thereof to the extent of the amount owing to the entruster or as appears in the trust receipt or the goods, documents or instruments themselves if they are unsold or not otherwise disposed of, in accordance with the terms and conditions specified in the trust receipt. [PD 115, Sec. 4] A trust receipt transaction is any transaction by and between an entruster and the entrustee, whereby the entruster (who owns or holds absolute title or security interests over certain specified goods, documents or instruments) releases the same to the possession of the entrustee upon the latter's execution and delivery to the entruster of a signed document called a “trust receipt.” [PD 115, Sec. 4] A trust receipt is a security transaction intended to aid in financing importers and retail dealers who do not have sufficient funds or resources to finance the importation or purchase of merchandise, and who may not be able to acquire credit except through utilization, as collateral, of the merchandise imported or purchased. It is a security agreement that secures an indebtedness and there can be no such thing as security interest that secures no obligation [Spouses Dela Cruz v. Planters Products Inc., G.R. No. 180677 (2013)]

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A.1. LOAN/SECURITY FEATURE In a letter of credit-trust receipt arrangement, a bank extends a loan covered by the letter of credit, and the trust receipt acts as the security for the loan. In other words, the transaction involves a loan feature represented by the letter of credit, and a security feature which is in the covering trust receipt [Vintola v. Insular Bank of Asia and America, G.R. No. 73271 (1987) A.2. OWNERSHIP OF THE GOODS, DOCUMENTS AND INSTRUMENTS UNDER A TRUST RECEIPT To secure that the banker (entrustee) shall be repaid at the critical point — that is, when the imported goods finally reach the hands of the intended vendee — the banker takes the full title to the goods at the very beginning, and he continues to hold that title as his indispensable security until the goods are sold. The importer (entruster) becomes absolute owner of the imported merchandise as soon as he has paid its price. The ownership of the merchandise continues to be vested in the owner thereof or in the person who has advanced payment (entrustee), until he has been paid in full, or if the merchandise has already been sold, the proceeds of the sale should be turned over to him by the importer or by his representative or successor in interest. [Prudential Bank v. National Labor Relations Commission, G.R. No. 112592 (1995), citing National Bank v. Viuda e Hijos de Angel Jose, G.R. No. L-43117 (1936)] However, in the case of goods delivered under trust receipt for the purpose of manufacturing or processing before its ultimate sale, the entruster shall retain its title over the goods whether in its original or processed form until the entrustee has complied fully with his obligation under the trust receipt. [PD 115, Sec. 4 (1)]

B. RIGHTS OF THE ENTRUSTER The entruster shall have the following rights: (1) In case of sale: Right to the proceeds from the sale of the goods, documents or instruments released under a trust

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receipt to the entrustee to the extent of the amount owing to the entruster or as appears in the trust receipt (2) In case of non-sale: Right to the return of the goods, documents or instruments (3) Right to the enforcement of all other rights conferred on him in the trust receipt (which are not contrary to the provisions of PD 115) (4) Right to cancel the trust and take possession of the goods, documents or instruments subject of the trust or of the proceeds realized therefrom at any time upon default or failure of the entrustee to comply with any of the terms and conditions of the trust receipt or any other agreement between the entruster and the entrustee (5) Right to sell the goods, documents or instruments at public or private sale, not less than five days after serving or sending of notice to the entrustee of the intention to sell (6) Right to purchase at a public sale the goods, documents, or instruments (7) Right to recover deficiency from the entrustee should the proceeds be insufficient [PD 115, Sec. 7] The entruster holding a security interest shall not, merely by virtue of such interest or having given the entrustee liberty of sale or other disposition of the goods, documents or instruments under the terms of the trust receipt transaction be responsible as principal or as vendor under any sale or contract to sell m ade by the entrustee. [PD 115, Sec. 8] B.1. VALIDITY OF THE SECURITY INTEREST AS AGAINST THE CREDITORS OF THE ENTRUSTEE/INNOCENT PURCHASERS FOR VALUE The entruster's security interest in goods, documents, or instruments pursuant to the terms of a trust receipt shall be valid as against all creditors of the entrustee for the duration of the trust receipt agreement. [PD 115, Sec. 12]

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A purchaser of goods from an entrustee with right to sell, or of documents or instruments through their customary form of transfer, who buys the goods, documents, or instruments for value and in good faith from the entrustee, acquires said goods, documents or instruments free from the entruster's security interest. [PD 115, Sec. 11]

C.2. RETURN OF GOODS, DOCUMENTS OR INSTRUMENTS IN CASE OF NON-SALE The failure to return the goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute estafa, punishable under RPC 315, par. 1 (b). [PD 115, Sec. 13]

C. OBLIGATION AND LIABILITY OF THE ENTRUSTEE

C.3. LIABILITY FOR LOSS OF GOODS, DOCUMENTS OR INSTRUMENTS The risk of loss shall be borne by the entrustee. Loss of goods, documents or instruments which are the subject of a trust receipt, pending their disposition, irrespective of whether or not it was due to the fault or negligence of the entrustee, shall not extinguish his obligation to the entruster for the value thereof. [PD 115, Sec. 10]

The entrustee shall have the following obligations: (1) Hold the goods, documents or instruments in trust for the entruster and shall dispose of them strictly in accordance with the terms and conditions of the trust receipt; (2) Receive the proceeds in trust for the entruster and turn over the same to the entruster to the extent of the amount owing to the entruster or as appears on the trust receipt;

C.4. PENAL SANCTION IF OFFENDER IS A CORPORATION If the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty shall be im posed upon the directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense. [PD 115, Sec. 13]

(3) Insure the goods for their total value against loss from fire, theft, pilferage or other casualties; (4) Keep said goods or proceeds thereof whether in money or whatever form, separate and capable of identification as property of the entruster; (5) Return the goods, documents or instruments in the event of non-sale or upon demand of the entruster; and

D. REMEDIES AVAILABLE

(6) Observe terms and conditions of the trust receipt not contrary to PD 115. [PD 115, Sec. 9]

D.1. UPON DEFAULT OR FAILURE OF THE ENTRUSTEE TO COMPLY WITH THE TERMS AND CONDITIONS (a) The entruster may cancel the trust and take possession of the goods, documents or instruments subject of the trust or of the proceeds realized therefrom.

C.1. PAYMENT/DELIVERY OF PROCEEDS OF SALE OR DISPOSITION OF GOODS, DOCUMENTS OR INSTRUMENTS The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt shall constitute the crime of estafa, punishable under RPC 315, par. 1 (b). [PD 115, Sec. 13]

(b) The entruster may sell the goods, documents or instruments not less than five days after serving or sending of the requisite notice, and the entruster may become a purchaser at a public sale.

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(c) The proceeds shall be applied (a) to the payment of the expenses thereof; (b) to the payment of the expenses of re-taking, keeping and storing the goods, documents or instruments; (c) to the satisfaction of the entrustee's indebtedness to the entruster. [PD 115, Sec. 7] D.2. IN CASE OF FAILURE TO TURN OVER THE PROCEEDS OF THE SALE, OR FAILURE TO RETURN IN CASE OF NON-SALE File a criminal case for estafa under RPC 315, par. 1 (b). [PD 115, Sec. 13]

E. WAREHOUSEMAN’S LIEN The warehouseman’s lien under the Warehouse Receipts Law is the warehouseman’s legal right or interest in the depositor’s property. It is similar to the depositary’s right of retention, which is a means or device by which the depositary is able to obtain payment of what may be due because of the deposit [Gomez-Somera] E.1. CLAIMS INCLUDED IN THE WAREHOUSEMAN’S LIEN A warehouseman shall have a lien on the goods deposited or the proceeds thereof in his hands: (1) All lawful charges for storage and preservation of the goods (2) All lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering, and other charges and expenses in relation to other goods (3) All reasonable charges and expenses for notice and advertisements of sale (4) Sale of the goods where default had been made in satisfying the warehouseman’s lien [Act No. 2137, Sec. 27] However, if a negotiable receipt is issued for the goods, the warehouseman shall have no lien thereon except for charges for storage of goods subsequent to the date of the receipt unless the receipt expressly enumerated other charges for which a lien is claimed. In such case, there shall be a lien for the

MERCANTILE LAW

charges enumerated so far as they are within Sec. 27 although the amount of the charges is not stated in the receipt. [Act No. 2137, Sec. 30] E.2. AGAINST WHAT PROPERTY THE LIEN MAY BE ENFORCED (a) Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims in regard to which the lien is asserted, and (b) Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted if such person had been so entrusted with the possession of goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid. [Act No. 2137, Sec. 28] E.3. SATISFACTION OF LIEN BY SALE A warehouseman's lien for a claim, which has become due, may be satisfied as follows: (1) An itemized statement of the warehouseman's claim, showing the sum due at the time of the notice and the date or dates when it becomes due, (2) A brief description of the goods against which the lien exists, (3) A demand that the amount of the claim as stated in the notice of such further claim as shall accrue, shall be paid on or before a day mentioned, not less than ten days from the delivery of the notice if it is personally delivered, or from the time when the notice shall reach its destination, according to the due course of post, if the notice is sent by mail, (4) A statement that unless the claim is paid within the time specified, the goods will be advertised for sale and sold by auction at a specified time and place. [Act No. 2137, Sec. 33] In accordance with the terms of a notice so given, a sale of the goods by auction may be had to satisfy any valid claim of the

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warehouseman for which he has a lien on the goods. [Act No. 2137, Sec. 33]

E.7. HOW LIEN MAY BE LOST (1) By surrendering possession of the goods

From the proceeds of such sale, the warehouseman shall satisfy his lien including the reasonable charges of notice, advertisement and sale. The balance, if any, shall be held by the warehouseman and delivered on demand to the person to whom he would have been bound to deliver or justified in delivering goods. [Act No. 2137, Sec. 33]

(2) By refusing to deliver the goods when a demand is made with which he is bound to comply [Act No. 2137, Sec. 29]

E.4. AT ANY TIME BEFORE THE GOODS ARE SO SOLD General rule: The warehouseman shall retain the possession of the goods according to the terms of the original contract of deposit

E.8. LIEN DOES NOT PRECLUDE OTHER REMEDIES Whether or not a warehouseman has a lien upon the goods, he is entitled to all remedies allowed by law to a creditor against a debtor for the collection of all charges and advances which the depositor has contracted to pay. [Act No. 2137, Sec. 32]

Exception: At any time before the goods are so sold, any person claiming a right of property or possession may pay the warehouseman the amount necessary to satisfy his lien and to pay the reasonable expenses and liabilities incurred. The warehouseman shall deliver the goods to the person making payment. [Act No. 2137, Sec. 33] E.5. EFFECT OF SALE The warehouseman shall not be liable for failure to deliver the goods to the depositor or owner of the goods or to a holder of the receipt given for the goods when they were deposited, even if such receipt be negotiable. [Act No. 2137, Sec. 36] E.6. OTHER METHODS OF ENFORCING LIEN Other remedies allowed by law for the enforcement of a lien against personal property are not precluded. The right to recover so much of the warehouseman's claim as shall not be paid by the proceeds of the sale is not barred as well. [Act No. 2137, Sec. 35]

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NEGOTIABLE INSTRUMENTS LAW

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I. Definition

shall be legal tender in amounts not exceeding Fifty pesos (P50.00) for denominations of Twenty-five centavos and above, and in amounts not exceeding Twenty pesos (P20.00) for denominations of Ten centavos or less.

A. DEFINITION AND PURPOSE •

Written contract for the payment of money, by its form and on its face, intended as substitute for money and intended to pass from hand to hand to give the holder in due course (HDC) the right to hold the same and collect the sum due.

•

Instruments are negotiable when they conform to all the requirements prescribed by the Negotiable Instruments Law (NIL; Act 2031, 03 February 1911).

•

However, the fact that an instrument does not meet the foregoing requisites will not affect its validity, the only consequence being that it will be governed not by the NIL but by the general law on contracts. (Campos)

Negotiable tender

Instrum ents

Not

MERCANTILE LAW

•

Although considered as medium for payment of obligations, negotiable instruments are not legal tender.

•

Negotiable instruments shall produce the effect of payment only when they have been encashed or when through the fault of the creditor they have been impaired. [Art. 1249, Civil Code]

•

BUT a CHECK which has been cleared and credited to the account of the creditor shall be equivalent to a delivery to the creditor of cash.

•

Settled is the rule that payment must be made in legal tender. A check is not legal tender and, therefore, cannot constitute a valid tender of payment. Since a negotiable instrument is only a substitute for money and not money, the delivery of such an instrument does not, by itself, operate as payment. Mere delivery of checks does not discharge the obligation under a judgment. The obligation is not extinguished and remains suspended until the payment by commercial document is actually realized. [BPI vs. Royeca, G.R. No. 176664 (2008)]

Legal

Art. 1249, Civil Code. The payment of debts in money shall be made in the currency stipulated, and if it is not possible to deliver such currency, then in the currency which is legal tender in the Philippines. The delivery of promissory notes payable to order, or bills of exchange or other mercantile documents shall produce the effect of payment only when they have been cashed, or when through the fault of the creditor they have been impaired. In the meantime, the action derived from the original obligation shall be held in the abeyance. (1170)

Sec. 52, New Central Bank Act. Legal Tender Power. - All notes and coins issued by the Bangko Sentral shall be fully guaranteed by the Government of the Republic of the Philippines and shall be legal tender in the Philippines for all debts, both public and private: Provided, however, That, unless otherwise fixed by the Monetary Board, coins PAGE 11 OF 320

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and

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something in written form that can be transferred from person to person. (Abad) SIGNED

A. REQUISITES OF NEGOTIABILITY (Most Frequently Asked since 1992; Last appeared in 2013) Sec. 1, Negotiable Instruments Law (NIL). Form of negotiable instruments. - An instrument to be negotiable must conform to the following requirements: (a) It must be in writing and signed by the maker or drawer; (b) Must contain an unconditional promise or order to pay a sum certain in money; (c) Must be payable on demand, or at a fixed or determinable future time; (d) Must be payable to order or to bearer; and (e) Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.

General Rule: No person is liable on the instrument whose signature does not appear thereon. Note: •

One who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name. [Sec. 18, NIL]

•

Signature of any party may be made by duly authorized agent; no particular form of appointment necessary. [Sec. 19, NIL]

•

Signature is binding and may be in one’s handwriting, printed, engraved, lithographed or photographed so long as it is intended or adopted as the signature of the signer or made with his authority. (Campos)

•

Signature may appear on any part of the instrument. However, if the signature is so placed upon the instrument that it is not clear in what capacity the person intended to sign, he is deemed an indorser. [Sec. 17 (f), NIL]

Note: Sections 184 and 126 define a promissory note and a bill of exchange using the requisites listed in Section 1. A.1. IN WRITING AND SIGNED BY THE MAKER OR DRAWER Sec. 18, NIL. Liability of person signing in trade or assumed name. - No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.

A.2. CONTAINING AN UNCONDITIONAL PROMISE TO PAY OR ORDER TO PAY A SUM CERTAIN IN MONEY

IN W RITING What is considered "In writing" - includes print; written or typed. Section 191 of the NIL provides that the word “’written’ includes printed, and ‘writing’ includes print.” Rationale for requirem ent: Since an instrument is a document, there must be PAGE 12 OF 320

Sec. 3, NIL. When promise is unconditional. An unqualified order or promise to pay is unconditional within the meaning of this Act though coupled with: (a) An indication of a particular fund out of which reimbursement is to be made or a particular account to be debited with the amount; or (b) A statement of the transaction which gives rise to the instrument. But an order or promise to pay out of a particular fund is not unconditional.

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UNCONDITIONAL •

•

The promise or order to pay, to be unconditional, must be unqualified. (Campos)

•

Must not be dependent upon a contingent event that is not certain to happen. (Abad)

•

The fact that the condition appearing on the instrument has been fulfilled will not convert it into a negotiable one. [Sec. 4, NIL]

•

An instrument which contains an order or promise to do an act in addition to the payment of money (with the exception of certain acts enumerated in Sec. 5 of the NIL) is not negotiable.

•

An instrument where the maker or the person primarily liable has the option to require something to be done in lieu of payment of money is not negotiable. But it is negotiable if the option to require something to be done in lieu of payment of money is with the holder.[Campos]

Fund for Reimbursement (unconditional)

•

Particular Fund (conditional)

The drawee pays the payee from his own funds. Afterwards, the drawee pays himself from the indicated fund.

The drawee pays directly from the particular fund indicated.

Indicated fund is not the direct source of payment.

Particular fund indicated is the direct source of payment. (Sundiang and Aquino)

MERCANTILE LAW

As to promissory note: Promise to pay should be express on the face of the instrument. (Campos) o

The word "promise" is not absolutely necessary. Any expression equivalent to a promise is sufficient. (Campos)

o

Mere acknowledgment of a debt is insufficient. (Campos)

As to bill of exchange: Order – command made by the drawer addressed to the drawee ordering the latter to pay the payee or the holder a sum certain in money; the instrument is, by its nature, demanding a right. o

Words which are equivalent to an order are sufficient.

o

A mere request or authority to pay does not constitute an order. Although the mere use of polite words like "please" does not of itself deprive the instrument of its characteristics as an order, its language must clearly indicate a demand upon the drawee to pay.

SUM PAYABLE MUST BE CERTAIN Sec. 2, NIL. What constitutes certainty as to sum. - The sum payable is a sum certain within the meaning of this Act, although it is to be paid:

When conditional: A negotiable instrument is conditional when reference to the fund clearly indicates an intention that such fund alone should be the source of payment. [Metropolitan Bank vs. CA, G.R. No. 88866 (1991)] ORDER OR PROMISE TO PAY PAGE 13 OF 320

(a) with interest; or (b) by stated installments; or (c) by stated installments, with a provision that, upon default in payment of any installment or of interest, the whole shall become due; or (d) with exchange, whether at a fixed rate or at the current rate; or (e) with costs of collection or an attorney's fee, in case payment shall not be made at maturity.

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Note: A sum is certain if from the face of the instrument it can be determined even if it requires mathematical computation. (Sundiang and Aquino)

interest, if any, but the obligation to pay the note remains.

PAYABLE IN MONEY

•

Only on the stipulated date, and not before, may the holder demand its payment.

•

Should he fail to demand payment, the instrument becomes overdue but remains valid and negotiable. It is merely converted to a demand instrument with respect to the person who issued, accepted, or indorsed it when overdue. [Sec. 7, NIL]

•

The instrument must be capable of being transformed into money, since negotiable instruments are intended to be substitutes for money

AT A FIXED TIME

•

“Money” as used in the law is not necessarily limited to “legal tender” as defined by law but includes any particular kind of current money. [Sec. 6(e), NIL and PNB v. Zulueta, G.R. No. L-7271 (1957)]

•

An agreement to pay in foreign currency is valid. (RA 8183)

AT A DETERMINABLE FUTURE TIME

•

An instrument payable in personal property like merchandise, shares of stock or gold is non-negotiable.

Sec. 4, NIL. Determinable future time; what constitutes. - An instrument is payable at a determinable future time, within the meaning of this Act, which is expressed to be payable: (a) At a fixed period after date or sight; or

A.3. PAYABLE ON DEMAND, OR AT A FIXED OR DETERMINABLE FUTURE TIME

(b) On or before a fixed or determinable future time specified therein; or

Rationale: to inform the holder of the instrument of the date when he may enforce payment thereof.

(c) On or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening be uncertain.

ON DEMAND

An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect.

Sec. 7, NIL. When payable on demand. - An instrument is payable on demand: (a) When it is so expressed to be payable on demand, or at sight, or on presentation; or (b) In which no time for payment is expressed. Where an instrument is issued, accepted, or indorsed when overdue, it is, as regards the person so issuing, accepting, or indorsing it, payable on demand.

Note: The holder may call for payment any time; and the maker has an option to pay at any time. The refusal of the holder to accept payment will terminate the running of

Note: It is required that the maturity of the instrument can be absolutely determined with certainty. (Abad) Examples: •

At a fixed period after date or sight, e.g., “30 days after date.”

•

On or before a fixed or determinable future time specified therein, e.g., “payable on or before December 1, 2000”

•

On or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening be uncertain, e.g., “payable within 60 days after the death of Jose”

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Effect of Acceleration Provisions

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A.4. PAYABLE TO ORDER OR TO BEARER

•

If option (absolute or conditional) to accelerate maturity is on the maker, the instrum ent is still negotiable. (Campos)

•

If option to accelerate is on the holder and can be exercised only after the happening of a specified event/act over which he has no control (conditional), the instrument is still negotiable. (Campos)

•

The negotiability or non-negotiability of an instrument is determined from the face of the instrument itself. [Caltex vs. CA, G.R. No. 97753 (1992)]

•

Therefore, the instrument must contain words of negotiability. (2012 Bar Question) For example:

Note: If option on the part of the holder is absolute, the instrument is non-negotiable. Insecurity Clauses Provisions in the contract which allow the holder to accelerate payment “if he deems himself insecure.” The instrument is rendered non-negotiable. (Sundiang and Aquino) Provisions extending tim e of paym ent General rule: Negotiability not affected. Effect is similar with that of an acceleration clause at the option of the maker. (Campos)

•

If the instrument states that the amount shall be paid in two equal installments, the second being payable pm a fixed date, the instrument can be considered negotiable since the first installment would then be payable on demand. (Vitug)

o

“Pay to Juan Cruz or bearer”, or “I promise to pay Juan Cruz or bearer”

Instrument need not follow the language of the law, but any term which clearly indicates an intention to conform to the legal requirements is sufficient.

Sec. 8, NIL. When payable to order. - The instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order. It may be drawn payable to the order of: (a) A payee who is not maker, drawer, or drawee; or (b) The drawer or maker; or (c) The drawee; or (d) Two or more payees jointly; or (e) One or some of several payees; or (f) The holder of an office for the time being. Where the instrument is payable to order, the payee must be named or otherwise indicated therein with reasonable certainty.

Extension Clauses

Paym ent on Installm ents

“Pay to the order of Juan Cruz”, or “I promise to pay to the order of Juan Cruz”

PAYABLE TO ORDER

Exception: Where a note with a fixed maturity provides that the maker has the option to extend time of payment until the happening of contingency, the instrument is NOT negotiable. The time for payment may never come at all.

An instrument is payable at a definite time if by its terms, it is payable at a definite time subject to extension at the option of the holder, ot to an extension to a further definite time at the option of the maker or acceptor or automatically upon or after a specified event or act. (Sundiang and Aquino)

o

Note: Without the words "to order" or "to the order of" the instrument is payable only to the person designated therein and is therefore non-negotiable. [Consolidated Plywood Industries vs. IFC Leasing, G.R. No. 72593 (1987)]

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PAYABLE TO BEARER

presenting it for payment without the drawer's indorsement. [Ang Tek Lian vs. CA, G.R. No. L-2516 (1950)]

Sec. 9, NIL. When payable to bearer. - The instrument is payable to bearer: (a) When it is expressed to be so payable; or (b) When it is payable to a person named therein or bearer; or (c) When it is payable to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable; or (d) When the name of the payee does not purport to be the name of any person; or (e) When the only or last indorsement is an indorsement in blank.

Exam ples: (1) Expressed to be so payable - "I promise to pay the bearer the sum"

W here the Maker is the Payee •

In effect making himself liable to himself. Thus, the instrument produces no legal effect.

•

It will produce legal effects only once the payee-maker indorses the instrument to another person because such indorsement will then give rise to rights and obligations. (Abad)

A.5. DRAWEE MUST BE NAMED OR DESIGNATED WITH REASONABLE CERTAINTY •

Applies only to a bill of exchange.

•

A bill may be addressed to two or more drawees jointly whether they are partners or not, but not to two or more drawees in the alternative or in succession. [Sec. 128, NIL]

•

Examples:

(2) Payable to a person named therein or bearer -"Pay to A or bearer" (3) Payable to the order of a fictitious person or non-existing person, and such fact was known to the person making it so payable - “Pay to John Doe or order" (4) Name of payee does not purport to be the name of any person – "Pay to cash"; "Pay to sundries." (5) Only or last indorsement indorsement in blank.

is

an

•

o

“To Juan Cruz and Jose Reyes” – negotiable

o

“To Juan Cruz or Jose Reyes” – not negotiable; no certainty as to drawee

B. DETERMINATION NEGOTIABILITY

Fictitious Payee Rule •

MERCANTILE LAW

It is not necessary that the person referred to in the instrument is really nonexistent or fictitious to make the instrument payable to bearer. The person to whose order the instrument is made payable may in fact be existing but he is still fictitious or non-existent under Sec. 9(c) of the NIL if the person making it so payable does not intend to pay the specified persons. [PNB v. Rodriguez, G.R. No. 170325 (2008)]

OF

•

In determining the negotiability of an instrument, the instrument in its entirety and by what appears on its face must be considered. It must comply with the requirements of Sec. 1 of the Negotiable Instruments Law. [Caltex Phils. v. CA, G.R. No. 97753 (1992)]

•

The acceptance of a bill of exchange is not important in the determination of its negotiability. The nature of acceptance is important only on the determination of the kind of liabilities of the parties

A check drawn payable to the order of "CASH" is a check payable to bearer, and the bank may pay it to the person PAGE 16 OF 320

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involved. [PBCOM vs. Aruego, G.R. Nos. L-25836-37 (1993)] Omissions and Provisions That Do Not Affect Negotiability

Additional Provisions That Do Not Affect Negotiability

(1) Non-dating of the (1) Authorizes the instrument sale of collateral securities on (2) Non-specification default; of value given, or that any value (2) Authorizes had been given confession of judgment on (3) Non-specification default; of place where it is drawn or place (3) Waives the benefit where it is of law intended to payable protect the debtor; or (4) Bears a seal (4) Allows the (5) Designation of creditor the particular kind of option to require currency in which something in lieu payment is to be of money. (Sec. 5) made. (Sec. 6) Note: Negotiability is affected when instrument contains a promise or order to do any act in addition to the payment of money.

Note: •

A confession of judgment is provision given by the maker authorizing the plaintiff's attorney to sign judgment and issue execution for the value of the instrument, costs, and attorney's fees. This is also called a judgment cognivit actionem. If accompanied by withdrawal of plea, it is called judgment relicta verificatione.

•

A confession of judgment is not recognized in our country, as it is against public policy. It denies due process, and deprives the right of appeal. [PNB v. PAGE 17 OF 320

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Manila Oil Refining, G.R. No. L-18103 (1922)]

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III. Kinds of Negotiable Instruments A. PROMISSORY NOTE Sec. 184, NIL. Promissory note, defined. - A negotiable promissory note within the meaning of this Act is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or to bearer. Where a note is drawn to the maker's own order, it is not complete until indorsed by him.

A.1. KINDS OF PROMISSORY NOTES (1) Certificate of deposit – a form of promissory note which is a written acknowledgment of a bank of its receipt of a certain sum with a promise to repay the same. (2) Bonds – a certificate or evidence of a debt on which the issuing company or governmental body promises to pay the bondholders a specified amount of interest for a specified length of time, and to repay the loan on the expiration date. (3) Debenture – a promissory note or bond backed by the general credit of a corporation and usually not secured by a mortgage or lien on any specific property. (Sundiang and Aquino)

MERCANTILE LAW

B.1. KINDS OF BILLS OF EXCHANGE (1) Draft – used synonymously with bill of exchange although it normally refers to a bill of exchange used in documentary exchange like letters of credit transactions. (2) Inland and foreign bill – an Inland bill is a bill which is, or on its face purports to be, both drawn and payable within the Philippines. Any other bill is a foreign bill. (3) Time draft – draft that is payable at a fixed date. (4) Sight or dem and draft – payable when the holder presents it for payment. (5) Trade acceptance – used in contracts of sale where the seller as drawer orders the buyer (as drawee) to pay a sum certain to the same seller (payee). (6) Banker’s acceptance – a time draft across the face which the drawee has written the word accepted. (Sundiang and Aquino) (7) Check - A bill of exchange drawn on a bank payable on demand (Sec. 185). It is the most common form of bill of exchange. B.2. INSTANCES WHEN A BILL OF EXCHANGE MAY BE TREATED AS A PROMISSORY NOTE (2011 and 2015 Bar Question)

B. BILL OF EXCHANGE Sec. 126, NIL. Bill of exchange, defined. - A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. (Sec. 126)

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Sec. 130, NIL. When bill may be treated as promissory note. - Where in a bill the drawer and drawee are the same person or where the drawee is a fictitious person or a person not having capacity to contract, the holder may treat the instrument at his option either as a bill of exchange or as a promissory note. Sec. 17, NIL. Construction where instrument is ambiguous. - Where the language of the instrument is ambiguous or there are omissions therein, the following rules of construction apply: x---x (e) Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election;

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x---x

(1) The drawer and the drawee are the same person; (2) Drawee is a fictitious person; (3) Drawee does NOT have the capacity to contract (Sec. 130, NIL) (4) Where the bill is drawn on a person who is legally absent; (5) Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election (Sec. 17[e], NIL)

Promissory Note

IV. Completion Delivery

and

A. STEPS IN THE EXECUTION OF NEGOTIABLE INSTRUMENTS (1) Writing of the instrument completely in accordance with the requisites of negotiability under Sec. 1. (2) Delivery of the instrument by the maker or the drawer to the payee in order to give legal effect thereto. (Abad) Note: It may sometimes be difficult to locate the boundary line between a complete and an incomplete instrument... It would seem that if an instrument contains all the requisites for making it a negotiable one, it should be considered as complete though it in fact may have blanks as to non-essentials... (Campos)

Bill of Exchange

Unconditional promise

Unconditional order

Involves two parties

Involves three parties

Maker is primarily liable

Drawer is only secondarily liable

Only one presentment: for payment

Two presentments: for acceptance and for payment

Bill of Exchange

MERCANTILE LAW

B. INSERTION OF DATE (2012 Bar Question) Sec. 13, NIL. When date may be inserted. Where an instrument expressed to be payable at a fixed period after date is issued undated, or where the acceptance of an instrument payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the instrument shall be payable accordingly. The insertion of a wrong date does not avoid the instrument in the hands of a subsequent holder in due course; but as to him, the date so inserted is to be regarded as the true date.

Check

Not necessarily drawn on a deposit. The drawee need not be a bank

It is necessary that a check be drawn on a bank deposit. Otherwise, there would be fraud.

Death of a drawer of a BOE, with the knowledge of the bank, does not revoke the authority of the drawee to pay.

Death of the drawer of a check, with the knowledge of the bank, revokes the authority of the banker to pay.

May be presented for payment within reasonable time after its last negotiation.

Must be presented for payment within a reasonable time after its issue.

May be payable on demand or at a fixed or determinable future time

Always payable demand

Any holder may insert the true date of issue or acceptance of an instrument where:

on

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(1) The instrument is expressed to be payable at a fixed period after date is issued undated; or (2) The acceptance of an instrument payable at a fixed period after sight is undated.

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C. EFFECT OF ANTE-DATING AND POST-DATING Sec. 12, NIL. Ante-dated and post-dated. - The instrument is not invalid for the reason only that it is ante-dated or post-dated, provided this is not done for an illegal or fraudulent purpose. The person to whom an instrument so dated is delivered acquires the title thereto as of the date of delivery.

In this case a real defense exists and not even a holder in due course can recover on the instrument, for the law is specific that it is not a valid contract in the hands of any holder. (Campos) Note: A drawee bank whose negligent custody of the checks, after partial execution, contributed to its escape, is estopped from raising the real defense under Sec. 15 of the NIL. (Campos)

F. COMPLETE INSTRUMENTS

D. COMPLETION OF BLANKS Sec. 14, NIL. Blanks; when may be filled. Where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time.

E. INCOMPLETE AND UNDELIVERED INSTRUMENTS Sec. 15, NIL. Incomplete instrument not delivered. - Where an incomplete instrument has not been delivered, it will not, if completed and negotiated without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery.

MERCANTILE LAW

AND

UNDELIVERED

Sec. 16, NIL. Delivery; when effectual; when presumed. - Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting, or indorsing, as the case may be; and, in such case, the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.

•

Non-delivery of a complete instrument is a personal defense. (Campos)

•

Delivery of an instrument is a prerequisite for liability. If the instrument is complete in all its particulars, but is not delivered, there is no contract. However if the instrument is no longer in the possession of a party who has signed it, a delivery is presumed until the contrary is proved. (Campos)

•

If the holder of the instrument is a holder in due course, the instrument is not merely prima facie deemed delivered, but

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this fact (Campos)

the

Thus, evidence that there was no authority or that the authority granted has been exceeded may be presented by the maker in order to avoid liability under the instrument. [Patrimonio v. Gutierrez and Marasigan, G.R. No. 187769 (2014)]

G. INCOMPLETE AND DELIVERED INSTRUMENTS (SEC. 14, NIL)

(2) The instrument must be filled up strictly in accordance with the authority given and within reasonable time

(1) Holder has prima facie authority to fill up the instrument, but he must first prove that he has the authority to fill up. For such presumption to apply, issuance is necessary.

(3) HDC may enforce the instrument as if filled up according to (2) above.

•

is

conclusively

presumed.

MERCANTILE LAW

Until the same is delivered, instrument remains revocable.

This provision merely raises a personal defense. (Campos)

Note: Prima facie authority to complete the check does not extend to its use (i.e., subsequent transfer or negotiation) once the check is completed. Only the authority to complete the check is presumed. The law’s use of the term "prima facie" underscores the fact that the authority which the law accords to a holder is a presumption juris tantum only; hence, subject to subject to contrary proof. Section 14

H. COMPLETE INSTRUMENTS

AND

DELIVERED

In a complete and delivered instrument, rights and liabilities under the negotiable instruments law attach.

Section 15

Section 16

Delivery Delivered

Undelivered

Undelivered

Completeness (1) Wanting in any material particular;

Mechanically incomplete

Mechanically incomplete

(2) Blank paper with signature Authority of Person in Possession (1) Prima facie authority to complete it by filling up the blanks;

No authority to complete and/or (2) Signature operates as a prima negotiate facie authority to fill it up for any amount

May negotiate if delivered to him by or under the authority of the party making, indorsing, drawing, or accepting

When Enforceable Filled up strictly in accordance with authority given and within a reasonable time

Not enforceable

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Delivery is made by or under authority of the party making, indorsing, drawing, or accepting, as the case may be

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Kind of Defense Personal

Real

Personal Rights of Holder

(1) If HDC, he can enforce the instrument as completed as against parties prior or subsequent to the completion; None in the hands of any holder. (2) If not a HDC, he can enforce the instrument as completed only against parties subsequent to the completion but not against those prior thereto.

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Can enforce the instrument. Here, the instrument is in the hands of a HDC, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. Where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery to him is presumed until the contrary is proved.

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V. Signature Sec. 18, NIL. Liability of person signing in trade or assumed name. - No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.

General rule: One whose signature does not appear on the instrument shall not be liable thereon. Exceptions: (1) The principal who signs through an agent (2) The forger (3) One who indorses in a separate instrument (allonge) OR where an acceptance is written on a separate paper

MERCANTILE LAW

signature words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.

Signature of any party may be made by duly authorized agent, established as in ordinary agency. B.1. LIABILITY OF AN AGENT General rule: Where a person adds to his signature words indicating that he signs on behalf of a principal, then he is not liable if he was duly authorized. Exceptions: (1) Mere addition of words describing him as an agent WITHOUT disclosing his principal [Sec. 20, NIL]

(4) One who signs his assumed or trade name

(2) Where a broker or agent negotiates an instrument without indorsement, he incurs all liabilities in Sec. 65 of the NIL, unless he discloses name of principal and the fact that he is only acting as an agent. [Sec. 69, NIL]

(5) A person negotiating by delivery (as in the case of a bearer instrument) is liable only to his immediate indorsee.

A. SIGNING IN TRADE NAME One who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name [Sec. 18, NIL]

Requisites to negative liablity of agent:

B. SIGNATURE OF AGENT

(2) He must act within the scope of his authority

Sec. 19, NIL. Signature by agent; authority; how shown. - The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.

personal

(1) He must be duly authorized;

(3) He must indicate in the instrument that he is signing merely as agent; and (4) He must disclose his principal.

C. SIGNATURE PER PROCURATION (2011 Bar Question) •

Sec. 20, NIL. Liability of person signing as agent, and so forth. - Where the instrument contains or a person adds to his PAGE 23 OF 320

A signature per procuration operates as notice to the holder that the agent has a limited authority to sign, and the principal is bound only in case the agent

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in so signing acted within the actual limits of his authority [Sec. 21, NIL]

the forgery or want of authority.

According to the majority rule, the words “per proc” or “procuration” must appear on the note for this rule in Section 21 to be applicable (Campos)

Counterfeit making or fraudulent alteration of any writing, which may consist of:

D. INDORSEMENT BY MINOR OR CORPORATION

(2) Alteration of an instrument in the name, amount, name of payee, etc. with intent to defraud.

•

•

•

•

•

The indorsement or assignment of the instrument by a corporation or by an infant (minor) passes the property therein, notwithstanding that from want of capacity, the corporation or infant may incur no liability thereon. [Sec. 22, NIL] The provision does not change the rule in civil law on minor's contracts, which provides that a contract enetered into by a minor is voidable, and the minor cannot be held liable thereon unless he ratifies it upon reaching majority. However, under Section 22 of the NIL, should the minor indorse a negotiable instrument, although he cannot be held liable on his contract of indorsement, title to the instrument passes to his indorsee and the latter can rightfully recover from the maker, free from the defense of minority. (Campos) REAL defense but available only to the incapacitated party (i.e. the minor or the corporation).

(1) Signing of another’s name with intent to defraud; or

General rule: When a signature is forged or made without the authority of the person, only the forged signature (not the instrument itself and the other genuine signatures) is wholly inoperative Effects: (1) No right to retain the instrument (2) No right to give a discharge therefor (3) No right to enforce payment thereof against any party thereto can be acquired through or under such signature Exception: The party against whom it is sought to be enforced is precluded from setting up the forgery or want of authority as a defense. [Sec. 23, NIL] F.1 PERSONS PRECLUDED FROM SETTING UP DEFENSE OF FORGERY (CAMPOS) (1) Those who warrant or admit the genuineness of the signature in question. This includes indorsers, persons negotiating by delivery and acceptors.

(3rd Most Frequently Asked Since 1992)

(2) Those who, by their acts, silence, or negligence, are estopped from setting up the defense of forgery.

(2006, 2008, 2010, 2011 2015 Bar Question)

(3) Those who are negligent.

F. FORGERY

Sec. 23, NIL. Forged signature; effect of. When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up

F.2 RULES ON FORGERY F.2.A. PROMISSORY NOTE Maker’s signature forged (1) Maker is not liable because he never became a party to the instrument. (2) Indorsers subsequent to forgery are liable because of their warranties. (3) Party who made the forgery is liable.

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[Associated Bank vs. CA, G.R. No. 107382 (1996)]

Payee’s signature forged

(4) Indorsers subsequent to forgery are liable (such as collecting bank or last endorser)

(1) Payee is not liable. (2) Maker is still liable. (REASON: Indorsement is not necessary to title and the maker engages to pay holder) (3) Indorsers subsequent to forgery are liable. (4) Party who made the forgery is liable.

(5) Party who made the forgery is liable Payee’s signature forged (1) Payee is not liable (2) Drawer is still secondarily liable

Indorser’s signature forged

(3) Drawee is liable if it paid or accepted the instrument [Sec. 62, NIL; Price v. Neal, 3 Burr. 1354 (1762)], but it may pass liability back through the collection chain

(1) Maker, payee, indorser whose signature/s was/were forged, and all indorsers preceding the forgery are not liable. (2) Indorsers subsequent to forgery are liable. (3) Party who made the forgery is liable.

(4) Indorsers subsequent to forgery are liable (such as collecting bank)

F.2.B. BILL OF EXCHANGE

(5) Party who made the forgery is liable

Drawer’s signature forged

Indorser’s signature forged

(1) Drawer is not liable because he was never a party to the instrument.

(1) Drawer, payee, indorser whose signature/s was/were forged and all indorsers preceding the forgery are not liable.

(2) Drawee is liable if it paid or accepted the instrument (no recourse to drawer) because he admitted the genuineness of the drawer’s signature [Sec. 62, NIL; Price v. Neal, 3 Burr. 1354 (1762)]

(2) Drawee is liable if it paid or accepted the instrument [Sec. 62, NIL; Price v. Neal, 3 Burr. 1354 (1762)]

(3) Drawee cannot recover from the collecting bank because there is no privity between the collecting bank and the drawer. The collecting bank does not give any warranty re: the drawer’s signature.

(3) Indorsers subsequent to forgery are liable. (such as collecting bank) (4) Party who made the forgery is liable.

SUMMARY OF RULES ON FORGERY AS TO PROMISSORY NOTES Order Instrument

Bearer Instrument Maker’s Signature Forged

Maker is not liable because he never became a party Same to the instrument. Indorsers subsequent to forgery are liable because of their warranties.

Indorsers may be made liable to those persons who obtain title through their indorsements.

Payee’s Signature Forged Maker and payee not liable.

Maker is liable.

Indorsers subsequent to forgery are liable because of their warranties.

Indorsers may be made liable to those persons who obtain title through their indorsements.

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Order Instrument

MERCANTILE LAW

Bearer Instrument Indorser’s Signature Forged

Maker, payee and indorser whose signature was forged are not liable.

Maker is liable. Indorsement is not necessary to pass title and the maker engages to pay any bearer of the instrument.

Indorsers subsequent to forgery are liable because of their warranties.

Only the indorser whose signature was forged can raise the defense of forgery against a HDC.

SUMMARY OF RULES ON FORGERY AS TO BILLS OF EXCHANGE Order Instrument Bearer Instrument Drawer’s Signature Forged Drawer is not liable because he was never a party to Same the instrument. Drawee-acceptor is liable, without recourse to Drawee-acceptor is liable if it paid. It cannot recover drawer, if it paid because he admitted the genuiness from the collecting bank because it is bound to of the drawer’s signature. know the drawer’s signature since the latter is its depositor. Drawee also cannot recover from the collecting bank because there is no privity of contract between The drawee may recover from the drawer when the the collecting bank and the drawer. The collecting latter’s negligence is the proximate cause of the loss bank does not give any warranty regarding the or contributed thereto. signature of the drawer. Indorsers subsequent to forgery (such as collecting bank or last endorser) are liable.

Indorsers may be made liable to those persons who obtain title through their indorsements.

Payee’s Signature Forged Drawer, drawee and payee not liable.

Drawer is liable (his indorsement is not necessary to pass title).

Cut-off rule applies. Indorsers subsequent to forgery (such as collecting bank) are liable without prejudice to their right to proceed against the forger.

Drawee is liable (no privity between drawer and payee because indorsement of payee is not necessary). Payee is not liable. Collecting bank is liable because of warranty. However, it may recover from the person who forged the indorsement on the check and deposited or encashed the same.

Indorser’s Signature Forged Drawer, payee and indroser whose signatures were forged are not liable.

Drawer is liable even if special indorsement was forged because indorsement is not necessary to title.

Cut-off rule does not apply. Drawee is liable if it paid.

Drawee is liable.

Indorsers subsequent to forgery (such as collecting bank) are liable.

Indorser whose signature was forged is liable because indorsement is not necessary to title.

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G. ACCEPTANCE UNDER MISTAKE

NEGOTIABLE INSTRUMENTS LAW

AND

PAYMENT

MERCANTILE LAW

Rule: The drawee who pays the holder of the bill cannot recover from the holder what he paid under mistake. (Campos)

Sec. 62, NIL. Liability of acceptor. - The acceptor, by accepting the instrument, engages that he will pay it according to the tenor of his acceptance and admits:

b) Stop Paym ent Order is one issued by the drawer of a check countermanding his first order to the drawee bank to pay the check.

(1) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument; and

Rule: The drawee bank is bound to follow the order, provided it is received prior to its certification or payment of the check. (Campos)

(2) The existence of the payee and his then capacity to indorse.

(3) Effects of Negligence of Depositor •

If such negligence of the depositor was the proximate cause of the loss, the drawee-bank would NOT be liable.

(1) W hen the drawee accepts or pays a forged instrum ent •

Price v. Neal doctrine: As between equally innocent persons, the drawee who pays money on, or accepts, a check or draft the signature on which was forged CANNOT recover the money from the one who received it. The drawee is bound to know the signature of its depositor.

•

The negligence of the depositor/drawer would consist of the failure to to carefully examine bank statements, cancelled checks, his check stubs, and other pertinent records within a reasonable time and to report any errors without unreasonable delay to the drawee bank.

•

A bank is bound to know the signatures of its depositors. If a bank pays a forged check it must be considered as making the payment out of its own funds and cannot charge the account of the depositor whose signature was forged. [PNB vs. Quimpo, G.R. No. L-53194 (1988)]

•

If a drawer/depositor’s negligence and delay should cause a bank to honor a forged check, the drawer cannot later complain should bank refuse to recredit his account. (Campos)

•

A bank is liable, irrespective of its good faith, in paying a forged check. [Samsung vs. Far East Bank, G.R. No. 129015 (2004)]

(4) Effect of Paym ent under Forged Indorsements •

(2) Extensions of Price v. Neal doctrine The bar to recovery on the part of a drawee who pays money on, or accepts, a check or draft, is extended to overdrafts and stop payment orders. a) Overdraft occurs when a check is issued for an amount more than what the drawer has in deposit with the drawee bank.

In the case of a drawee's acceptance or payment of a bill on which only an INDORSEMENT has been forged, the drawee can recover the amount paid out by him. RATIONALE: The drawee makes no warranty as to the genuineness of any indorsement. (Campos)

(5) Effect of negligence of drawee in inform ing recipient of forgery •

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The rule is that a drawee's acceptance or payment of a bill on which only an INDORSEMENT has been forged is not a bar to his right to recover the amount paid out by him; however, there is an exception to this rule.

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•

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If it is shown that the drawee on learning of the forgery did not give prompt notice of it to the holder and that damage resulted to said holder, recovery by the drawee is barred [Clearfield Trust Co. vs. US, 318 U.S. 363 (1943)]

(6) Effect of negligence of drawer in case of forged indorsem ent on checks •

The drawer, as soon as he comes to know of a forged indorsement should promptly notify the drawee bank. Otherwise, should his negligent delay be the proximate cause of any subsequent loss to the bank, the latter may properly charge it to the drawer's account.

(7) Com paring the liability of collecting bank and a drawee bank •

a

A collecting bank is only liable for forged indorsements and not forgeries of the drawer or maker’s signature. [PNB vs. CA, G.R. No. L-26001 (1968)] o

Rationale: In presenting the checks for clearing, the collecting agent made an express guarantee on the validity of “all the prior endorsements.”

•

The collecting bank or last indorser generally suffers the loss because it has the duty to ascertain the genuineness of all prior indorsements considering that the act of presenting the check for payment to the drawee is an assertion that the party making the presentment had done its duty to ascertain the genuineness of the indorsements. [BPI vs. CA, G.R. No. 102383 (1992)]

•

A drawee bank is not liable for forged indorsements. o

Rationale: The drawee bank is not similarly situated as the collecting bank because the former makes no warranty as to the genuineness of any indorsement. The drawee bank’s duty is but to verify the genuineness of the drawer’s signature and not of the indorsement because only the drawer is its client. PAGE 28 OF 320

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o

However, it should be noted that as an exception to the rule that a drawee bank is not liable for a forged indorsement, when the negligence of the drawee bank is the proximate cause of the collecting bank’s payment of a check with a forged indorsement, the drawee bank may be held liable to the collecting bank.

o

Furthermore, when both the collecting bank and the drawee bank are guilty of negligence, the degree of negligence of each will be weighed in considering the amount of loss which each should bear. [BPI vs. CA, G.R. No. 102383 (1992)]

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VI. Consideration Sec. 25, NIL. Value, what constitutes. — Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time. Sec. 191, NIL. Definition and meaning of terms. - In this Act, unless the contract otherwise requires: x---x "Value" means valuable consideration; x---x “Value” and “consideration” are generally convertible terms. However, they may have different implications. “Consideration” is the proper term when the payee of a note sues the maker, or the payee of a bill sues the drawer, or an indorsee sues his immediate indorser. “Value” is the proper term when a holder sues any party to the instrument with whom he himself has not dealt, the term “value” is more appropriate.

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B. BURDEN OF PROOF PRESUMPTION OF CONSIDERATION Sec. 24, NIL. Presumption of consideration. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value. Because of the presumption, it is immaterial whether or not “for value received” appears in the instrument.

C. EFFECT OF CONSIDERATION

WANT

OF

Sec. 28, NIL. Effect of want of consideration. Absence or failure of consideration is a matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.

An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time. [Sec. 25, NIL]

Absence or failure of consideration is a matter of defense as against any person not a holder in due course, hence, it is a personal defense.

Value need not be full and a holder will be one for value even if he gave less than the face value of the instrument, provided the intention of the transferor is to transfer the full amount represented by the instrument.

Partial failure of consideration is a defense pro tanto, meaning a defense to the extent of the failure. (Abad)

A. WHO IS A HOLDER FOR VALUE (HFV)? 1. A holder of an instrument for which value, which need not be in full, has been given at any given time but only with respect to all parties who have become parties to the instrument prior to the time at which value has been given. [Sec 26, NIL]

Effect of an illicit or unlawful consideration: Illicit or illegal consideration does not affect the negotiability of the instrument as validity of consideration is not one of the requisites of a negotiable instrument. It is merely constitutes a defect of title hence such illegality of consideration is merely a personal defense which cannot be raised against a holder in due course. [Sec. 55 and 57, NIL] [2009 bar question]

2. A holder who has a lien on the instrument but only to the extent of his lien. [Sec 27, NIL] (2011 Bar Question) PAGE 29 OF 320

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VII. Accommodation Party Sec. 29, NIL. Liability of accommodation party. - An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder, at the time of taking the instrument, knew him to be only an accommodation party. Accom m odation Party

accommodation party. [Stelco Marketing Corp. v. CA, G.R. No, 96160 (1992)]

B. ACCOMMODATION SURETY

•

•

•

hether the liability is primary or secondary will depend on whether he signs as a maker, acceptor, drawer or indorser. W

The holder for value to whom the instrument thus executed is subsequently negotiated has a right of recourse against the accommodation party in spite of the former’s knowledge that no consideration passed between the accommodation and accommodated parties. [Sec. 28, NIL] Does this mean that the accommodation party is liable to a holder even if he is not a holder in due course, provided he is a holder for value? The Supreme Court has ruled that an accommodation party is liable ONLY to a HOLDER IN DUE COURSE. However, the mere fact that the holder knew of the accommodation does not prevent him from being a holder in due course in order to recover from the

AS

An accommodation party is generally regarded as a surety for the party accommodated.

•

When the accommodation party makes payment to holder of the note, he has the right to sue the accommodated party for reimbursement. [Cañeda v. CA, G.R. No. 81322 (1990)]

•

Note: A corporation cannot act as an accommodation party. The issue or endorsement of negotiable instruments by a corporation without consideration and for the accommodation of another is ultra vires [Crisologo v. CA, G.R. No. 80599 (1989)]

(2) Must not have receieved value therefor; and

A. LIABILITY OF AN ACCOMMODATION PARTY

PARTY

•

(1) Must be a party to the instrument, signing as maker, drawer, acceptor, or indorser;

(3) Signed for the purpose of lending his name to some other person.

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Accom modation Party

Party

Accommodation Party

v.

Regular

Regular Party

Purpose Signs instrument for the purpose of lending his name or credit to some other person

Does not sign the instrument for the same purpose

Value Received Signs the intrument without receiving value therefor

Signs the instrument for value

Absence or Failure of Consideration as Defense Cannot avail of the defense of absence or failure of consideration against a holder not in due course

Can avail of said defense against a person not a holder in due course

Right to Sue After paying the May not sue any holder, may sue the subsequent party for accommodated party reimbursement for reimbursement

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and completed by delivery.

VIII. Negotiation

B.1. BY DELIVERY – IF PAYABLE TO BEARER

Sec. 30, NIL. What constitutes negotiation. An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer, it is negotiated by delivery; if payable to order, it is negotiated by the indorsement of the holder and completed by delivery.

A. NEGOTIATION FROM ASSIGNMENT

Sec. 191, NIL. Definition and meaning of terms. - In this Act, unless the contract otherwise requires: x---x "Delivery" means transfer of possession, actual or constructive, from one person to another; x---x "Issue" means the first delivery of the instrument, complete in form, to a person who takes it as a holder; x---x

DISTINGUISHED

Transfer is a broader term than negotiation. If an instrument is transferred without negotiation, the transfer is a mere assignment which constitutes the transferee as a mere assignee, not a holder, subject to all defenses existing among prior parties. Transfer thus includes both an ordinary assignment and a negotiation. (Campos)

Delivery means transfer of possession of instrument by the maker or drawer, with intent to transfer title to the payee and recognize him as holder thereof Issuance is the FIRST delivery of the instrument complete in form to a person who takes it as a holder. Requisites

Negotiation

Assignment

The transfer of the instrument from one person to another so as to constitute the transferee the holder thereof. [Sec.30, NIL]

The transferee does not become a holder, nor can he become a holder in due course; and he merely steps into the shoes of the transferor. As such, any defense available against the transferor is available against the transferee.

(1) Mechanical act of writing the instrument completely and in accordance with the requirements of Section 1 of the NIL; and (2) The delivery of the complete instrument by the maker or drawer, with the intention of giving effect to it, to the payee or holder. Presumption of delivery •

Where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved [Sec. 16, NIL]

•

If it is in the hands of a holder in due course, the presumption of a valid delivery is conclusive [Sec. 16, NIL]

B. MODES OF NEGOTIATION Sec. 30, NIL. What constitutes negotiation. An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer, it is negotiated by delivery; if payable to order, it is negotiated by the indorsement of the holder

Presumption as to date •

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Date is not an essential element of negotiability; it is not included in the

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requirements for an instrument to be negotiable under Sec. 1 of the NIL. •

•

CANNOT indorse a part only of the amount payable; BUT if the instrument has been paid in part, then the instrument may be indorsed as to the residue [Sec. 32, NIL] (2012 Bar Question)

•

CANNOT transfer the instrument to two or more indorsees severally [Sec. 32, NIL]

•

If not an indorsement of the entire instrument, the transfer remains valid, but as a mere assignment which subjects the holder to all defenses on the instrument (Campos)

An undated instrument is considered to be dated as of the time it was issued [Sec. 17 (c), NIL]

B.2. BY INDORSEMENT COMPLETED BY DELIVERY – IF PAYABLE TO ORDER Sec. 191, NIL. Definition and meaning of terms. - In this Act, unless the contract otherwise requires: x---x "Indorsement" means an indorsement completed by delivery; x---x B.2.A. INDORSEM ENT; HOW DONE Sec. 31, NIL. Indorsement; how made. - The indorsement must be written on the instrument itself or upon a paper attached thereto. The signature of the indorser, without additional words, is a sufficient indorsement.

(1) W here placed – The indorsement must be written [Sec. 31, NIL]:

(4) If name misspelled indorsement, indorsement will prim a facie deemed not valid.

•

(b) On a separate piece of paper attached to the instrument called “allonge”[Sec. 31, NIL]

The indorsement should be made by the holder in the manner he was designated, otherwise the signature will prima facie not be a valid indorsement of the instrument [Sec 43, NIL]

(5) Indorsem ent where there are joint payees •

Where the instrument is payable or indorsed to “A and B,” they are joint payees and an indorsement by either A or B only will not constitute a valid negotiation, UNLESS the one indorsing is authorized by the other. (Campos)

•

But where the instrument is payable to “A or B”, they payees are merely in the alternative, and either one may valdily negotiate the same. (Campos)

(3) Must be of the ENTIRE instrum ent Sec. 32, NIL. Indorsement must be of entire instrument. - The indorsement must be an indorsement of the entire instrument. An indorsement which purports to transfer to the indorsee a part only of the amount payable, or which purports to transfer the instrument to two or more indorsees severally, does not operate as a negotiation of the instrument. But where the instrument has been paid in part, it may be indorsed as to the residue.

in be

Sec. 43, NIL. Indorsement where name is misspelled, and so forth. - Where the name of a payee or indorsee is wrongly designated or misspelled, he may indorse the instrument as therein described adding, if he thinks fit, his proper signature.

(a) On the instrument itself [Sec. 31, NIL] , or

(2) Signature of the indorser, without additional words, is a sufficient indorsement [Sec. 31, NIL]

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C. KINDS OF INDORSEMENT Sec. 33, NIL. Kinds of indorsement. - An indorsement may be either special or in blank;

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and it may also be either restrictive or qualified or conditional.

•

Specifies the person to whom/to whose order the instrument is to be payable; and the indorsement of such indorsee is necessary to further negotiation.

Four bases of classification indorsem ents under the NIL:

•

A special indorser is liable to all subsequent holders, unless the instrument is an originally bearer instrument, in which case he is liable only to those who take title through his indorsement. [Sec. 40, NIL]

•

An instrument, payable to bearer, and indorsed specially, may nevertheless be further negotiated by delivery. [Sec 40, NIL]

•

Originally bearer instrument always remains a bearer instrument. (Sundiang and Aquino)

of

(1) Special or in blank (2) Restrictive or Non-Restrictive (3) Qualified or unqualified (4) Conditional or unconditional All of the four bases of classification coexist with each other; thus, an indorsement may be special and qualified at the same time. It may also be special and unqualified, special and restrictive, special, unrestrictive and unqualified and so on. (Campos) C.1. AS TO MANNER OF FUTURE METHOD OF NEGOTIATION Sec. 34, NIL. Special indorsement; indorsement in blank. - A special indorsement specifies the person to whom, or to whose order, the instrument is to be payable, and the indorsement of such indorsee is necessary to the further negotiation of the instrument. An indorsement in blank specifies no indorsee, and an instrument so indorsed is payable to bearer, and may be negotiated by delivery.

Sec. 40, NIL. Indorsement of instrument payable to bearer. - Where an instrument, payable to bearer, is indorsed specially, it may nevertheless be further negotiated by delivery; but the person indorsing specially is liable as indorser to only such holders as make title through his indorsement.

Blank •

Specifies no indorsee, instrument so indorsed is payable to bearer, and may be negotiated by delivery

•

The holder may convert a blank indorsement into a special indorsement by writing over the signature of the indorser in blank any contract consistent with the character of the indorsement. [Sec 35, NIL]

•

An order instrument may be converted into a bearer instrument by means of a blank indorsement, and may be later reconverted into an order instrument by a subsequent special indorsement

C.2. AS TO TITLE TRANSFERRED

Sec. 35, NIL. Blank indorsement; how changed to special indorsement. - The holder may convert a blank indorsement into a special indorsement by writing over the signature of the indorser in blank any contract consistent with the character of the indorsement.

Sec. 36, NIL. When indorsement restrictive. An indorsement is restrictive which either: (a) Prohibits the further negotiation of the instrument; or (b) Constitutes the indorsee the agent of the indorser; or (c) Vests the title in the indorsee in trust for or to the use of some other persons. But the mere absence of words implying power to negotiate does not make an indorsement

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restrictive.

(1) Qualified

Sec. 37, NIL. Effect of restrictive indorsement; rights of indorsee. - A restrictive indorsement confers upon the indorsee the right:

•

Constitutes indorser as mere assignor of title

•

Made by adding the words “without recourse”, “sans recourse,” “indorser not holder,” “at the indorser’s own riske,” and other terms of similar import. [Sec. 38, NIL].

•

But this does not mean that the transferee only has the rights of an assignee; transfer remains a negotiation and transferee can still be a holder capable of acquiring a title free from defenses of prior parties.

(a) to receive payment of the instrument; (b) to bring any action thereon that the indorser could bring; (c) to transfer his rights as such indorsee, where the form of the indorsement authorizes him to do so. But all subsequent indorsees acquire only the title of the first indorsee under the restrictive indorsement.

Effects: 1.

(1) Restrictive – Such indorsement either: (a) Prohibits further instrument

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negotiation

of

(b) Constitutes indorsee as agent of indorser Vests title in indorsee in trust for another [Sec 36, NIL]

2. The qualified indorser does not guarantee the solvency of the maker, but merely his legal title to the instrument 3. A qualified indorsement does not impair the negotiable charater of the intstrument (2)

RIGHTS OF RESTRICTIVE INDORSEE • Receive payment •

Bring any action thereon that the indorser could bring.

•

Transfer his rights as such indorsee, but all subsequent indorsees acquire only the title of first indorsee under restrictive indorsement. [Sec 37, NIL]

(2) Non-restrictive C.3. AS TO KIND OF LIABILITY ASSUMED BY INDORSER Sec. 38, NIL. Qualified indorsement. - A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser's signature the words "without recourse" or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument.

Relieves the qualified indorser of his liability to pay the instrument should the maker be unable to pay

Non-qualified

C.4. AS TO PRESENCE/ABSENCE EXPRESS LIMITATIONS

OF

Sec. 39, NIL. Conditional indorsement. - Where an indorsement is conditional, the party required to pay the instrument may disregard the condition and make payment to the indorsee or his transferee whether the condition has been fulfilled or not. But any person to whom an instrument so indorsed is negotiated will hold the same, or the proceeds thereof, subject to the rights of the person indorsing conditionally.

(1) Conditional •

Additional condition annexed to indorser’s liability; such condition must be expressed

•

Where an indorsement is conditional, a party required to pay the instrument may

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disregard the condition, and make payment to the indorsee or his transferee, whether condition has been fulfilled or not. •

But any person to whom an instrument so indorsed is negotiated, will hold the same, or the proceeds thereof, subject to the rights of the person indorsing conditionally. [Sec. 39, NIL]

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IX. Rights of the Holder A. DEFINITION OF A HOLDER Sec. 191, NIL. Definition and meaning of terms. - In this Act, unless the contract otherwise requires: x---x "Holder" means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof;

(2) Unconditional C.5. OTHER KINDS OF INDORSEMENT (1) Absolute – One by which the indorser binds himself to pay, upon no other condition than the failure of prior parties to do so, and of due notice to him of such failure (2) Joint – All must indorse when an instrument is payable to the order of two or more payees or indorsees who are not partners. [Sec. 41, NIL] Exceptions: •

Where the payee or indorsee are partners; and

•

Where the payee or indorsee indorsing has authority to indorse for the others.

A.1. RIGHTS OF A HOLDER A holder is a payee or indorsee of a bill or note who is in possession of it, or the bearer thereof [Sec. 191, NIL]. He has the following rights [Sec. 51, NIL]: (1) To sue on the instrument in his own nam e •

(3) Irregular – A person who, not otherwise a party to an instrument, places thereon his signature in blank before delivery. [Sec. 64, NIL]

Note: This section applies only to an instrument payable to the order of the transferor. This cannot apply to bearer instruments.

Liability of Irregular Indorser: •

If the instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties.

•

If the instrument is payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer.

•

If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee. [NIL, Sec. 64]

Unindorsed instruments: Section. 49, NIL. Transfer without indorsement; effect of. Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires in addition, the right to have the indorsement of the transferor. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made.

•

Cancellation of indorsement: Section 48, NIL. Striking out indorsement. The holder may at any time strike out any indorsement which is not necessary to his title. The indorser whose indorsement is struck out, and all indorsers subsequent to him, are thereby relieved from liability on the instrument.

•

Indorsement by agent: Section 20, NIL. Liability of person signing as agent, and so forth. Where the instrument contains or a

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person adds to his signature words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability. (2) Payment in due course to the holder discharges instrum ent

B. HOLDER IN DUE COURSE [HDC] (2nd Most Frequently Asked since 1992) Sec. 52, NIL. What constitutes a holder in due course. - A holder in due course is a holder who has taken the instrument under the following conditions: (a) That it is complete and regular upon its face; (b) That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact, (c) That he took it in good faith and for value; (d) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. Sec. 58, NIL. When subject to original defense. - In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter.

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some person under whom he claims acquired the title as holder in due course. But the lastmentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title. B.1. WHO ARE HOLDERS IN DUE COURSE (1) Holder in due course [HDC] under Sec. 52, NIL (2) HDC under Sec. 58, NIL: A holder who DERIVES title to the instrument through a HDC has all the rights of the latter even though he himself satisfies none of the requirements of due course holding HDC under Sec. 59, NIL [presum ption]: Every holder is deemed prima facie to be a holder in due course Sec. 191 of the NIL defines holder as the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof. The word “holder” in the first clause of Sec. 52 and in the second subsection thereof may be replaced by the definition in Sec. 191 so as to read “a holder in due course is a payee or an indorsee in possession, etc.” [De Ocampo vs. Gatchalian, G.R. No. L-15126 (1961)] B.2. THE SIGNIFICANCE OF DUE COURSE HOLDING •

The question of whether a holder is a holder in due course or not is significant only when there is an existing defense between prior parties. (Campos)

•

A holder in due course can acquire a better title than his predecessors because he takes the instrument free from any defect of title of prior parties. He is furthermore free from defenses available to prior parties among themselves. (Campos)

•

A holder not in due course, on the other hand, takes the instrument subject to all defenses because he is treated as a transferee of a non-negotiable paper. Real defenses, however, which attach to the instrument itself would be available even against a holder in due course. (Campos)

Section 59, NIL. Who is deemed holder in due course. - Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or PAGE 36 OF 320

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B.3. RIGHTS OF A HOLDER IN DUE COURSE

B.4. REQUISITES OF A HOLDER IN DUE COURSE

Sec. 51, NIL. Right of holder to sue; payment. - The holder of a negotiable instrument may to sue thereon in his own name; and payment to him in due course discharges the instrument.

Sec. 52, NIL. What constitutes a holder in due course.- A holder in due course is a holder who has taken the instrument under the following conditions: (a) That it is complete and regular upon its face; (b) That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact; (c) That he took it in good faith and for value; (d) That at the time it was negotiated to him, he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

Sec. 57, NIL. Rights of holder in due course. A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon. Sec. 58, NIL. When subject to original defense. - In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter. (1) To sue on the instrument in his own name [Sec. 51, NIL] (2) To receive payment on the instrument [Sec. 51, NIL] (3) Holds instrument free of any defect of title of prior parties [Sec. 57, NIL] (4) Free from defenses available to prior parties among themselves [Sec. 57, NIL]

These four requisites must concur. If any one of them is absent, the holder cannot be considered a holder in due course. (Campos) B.4.A. COM PLETE UPON ITS FACE

AND

REGULAR

An instrument is incomplete when it is wanting in any material particular or particular proper to be inserted in a negotiable instrument without which the same will not be complete. (De Leon) B.4.B. BECAM E THE HOLDER BEFORE OVERDUE AND W ITHOUT NOTICE OF PREVIOUS DISHONOR “Overdue” – The Following Cannot Be Holders in Due Course: (a) A holder who became such after the date of maturity of the instrument [instrument is overdue; Sec. 53, NIL]

(5) May enforce payment of instrument for full amount, against all parties liable [Sec. 57, NIL]

(b) In case of demand instruments: a holder who negotiates it after an unreasonable length of time after its issue [Sec. 53, NIL] The fact that the instrument is overdue is a strong indication that it was dishonored and the law puts the potential holder on inquiry as to whether it was dishonored and the reason therefor. (Campos)

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An instrument may be dishonored either by non-acceptance or by non-payment. (1) Dishonor by non-acceptance – takes place when the drawee refuses to accept the order of the drawer as stated in the bill. Can refer only to a bill of exchange. (2) Dishonor by non-paym ent – takes place when the party primarily liable fails to pay the instrument at the date of maturity. (Campos) Notes: (1) An overdue instrument is still negotiable, but it is subject to the defenses (real and personal) existing at the time of the transfer. (2) As to what constitutes a reasonable time, regard is to be had to the nature of the instrument, the usage of trade or business with respect to such instrument, and the facts of the particular case. [Sec. 193, NIL] (3) An instrument is not invalid for the reason only that it is ante-dated or postdated provided it is not done for an illegal or fraudulent purpose. The person to whom an instrument so dated is delivered acquires the title thereto as of the date of delivery [Sec. 12, NIL] (4) Instruments with fixed maturity but subject to acceleration: ultimate date of maturity is the date of maturity for the purpose of determining whether a purchaser is a HDC (5) Undated instrum ents: Prima facie presumption that it was negotiated before it was overdue [Sec. 45, NIL] B.4.C. THAT HE TOOK IT IN GOOD FAITH AND FOR VALUE “Good Faith” Holder must have taken the instrument in good faith and that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. (Campos)

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“Value” (1) Any consideration sufficient to support a simple contract [Sec. 25, NIL] (2) An antecedent or pre-existing debt constitutes value, whether the instrument is payable on demand or at a future time [Sec. 25, NIL] “Holder For Value” (1) Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who become such prior to that time [Sec. 26, NIL]; and (2) Where the holder has a lien on the instrument, he is deemed a HFV to the extent of his lien [Sec .27, NIL] The holder is a holder for value only to the extent that the consideration agreed upon has been paid, delivered, or performed. (Sundiang and Aquino) A negotiable instrument may be given as a gift to the indorsee or transferee. In such cases, whatever defenses can be set up against the transferor can also be set up against the transferee, but where the holder gave valuable consideration for the note and the other requisites of Sec. 52 are present, he will be free from such defenses. Value need not be full and a holder will be one for value even if he gave less than the face value of the instrument, provided that intention of the transferor is to transfer the full amount represented by the instrument. (Campos) Presumption: Every negotiable instrument is deemed prima facie issued for valuable consideration; and every person whose signature appears thereon is deemed to have become a party thereto for value. [Sec. 24, NIL] Such presumption cannot be overcome by the petitioner’s bare denial of receipt of the consideration. [Bayani v. People, G.R. No. 154947 (2004)] B.4.D. NO NOTICE OF INFIRMITY IN THE INSTRUMENT OR DEFECT IN THE

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NEGOTIABLE INSTRUMENTS LAW

TITLE OF THE PERSON NEGOTIATING IT “Defective title” Sec. 55, NIL. When title defective. – The title of a person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud. Title is defective when [Sec. 55, NIL] (1) instrument/signature obtained by fraud, duress, force or fear or other unlawful means OR for an illegal consideration; or (2) instrument is negotiated in breach of faith, or fraudulent circumstances

MERCANTILE LAW

“Suspicious circumstances” General rule: A purchaser of an instrument is not required to investigate every suspicious circumstance; failure to investigate such circumstances does not constitute him as being in bad faith or having a notice of defect. (Campos) Rationale: The general principle that a purchaser who has knowledge of certain facts is put on inquiry does not operate to its full extent in the law of negotiable instruments. Negotiable instruments are usually issued in pursuance of commercial transactions where time is of the essence. To require investigation of every suspicious circumstance would hamper their function of facilitating exchange; thus negligence in tracking down a suspicious circumstance which would put a prudent man on inquiry is not of itself sufficient to prevent recovery. (Campos) Exceptions: (a) Suspicious circumstances together with other circumstances, may be admitted as evidence of bad faith.

Title is not defective when at the time it was negotiated to him, he had no notice of: (1) any infirmity in instrument

(b) Where the suspicious circumstances are so cogent and obvious

(2) any defect in title of person negotiating Note: Due course holding is not affected by the holder’s acquisition of knowledge after he has taken the instrument. To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. [Sec. 56, NIL] A transferee who receives notice of any infirmity or defect before he has paid the full amount for the instrument will be deemed a HDC only to the extent of the amount therefore paid by him [Sec.54, NIL]

A check with 2 parallel lines in the upper left hand corner means that it could only be deposited and may not be converted to cash. Consequently, such circumstance should put the payee on inquiry and upon him devolves the duty to ascertain the holders’ title to the check or the nature of his possession. Failing in this respect, the payee is declared guilty of gross negligence amounting to legal absence of good faith and as such the consensus of authority is to the effect that the holder of the check is not a holder in good faith. [State Investment House vs. IAC, G.R. No. 72764 (1989)]

Gross negligence in itself would not constitute notice since it is not the equivalent of actual knowledge nor of bad faith. PAGE 39 OF 320

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B.5. PRESUMPTION IN FAVOR OF DUE COURSE HOLDING

Holder in Due Course

Every holder is deemed prima facie to be a holder in due course. [Sec. 59, NIL] (1) Burden shifts when it is shown that the title of any person who has negotiated the instrument was defective. Holder must then prove that he or some person under whom he claims acquired the title as a holder in due course. (2) But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title. B.6. HOLDER NOT IN DUE COURSE (1) One who became a holder of an instrument without any, some or all of the requisites under Sec. 52 of the NIL (2) With respect to demand instruments, if it is negotiated an unreasonable length of time after its issue, the holder is deemed not a holder in due course. [Sec. 53, NIL] Rights of a holder not in due course [Sec. 51, NIL] (1) To sue on the instrument under in his own name (2) To enforce the instrument The only disadvantage of a holder who is not a holder in due course is that the negotiable instrument is subject to defenses as if it were non-negotiable. [Chan Wan vs. Tan Kim, G.R. No. L-15380 (1960)] Holder in Due Course

MERCANTILE LAW

Not Holder in Due Course

Rights Has the right to enforce payment, sue in his own name, and negotiate the instrument

Has the right to enforce payment, sue in his own name, and negotiate the instrument

C. DEFENSES AGAINST THE HOLDER Real Defenses

Personal Defenses

Those which Attach to the instrument itself and generally disclose an absence of one of the essential elements of a contract or where the admitted contract is void for all purposes for reasons of public policy

Those wherein a true contract appears, but where for some reason, such as fraud, the defendant is excused from the obligation to perform

Available against all Can be raised only holders, including against holders not in holders in due course due course Forgery, incapacity, fraud in the execution, some types of duress, and lack of delivery of an incomplete instrument

Not Holder in Due Course

Compliance with Requisites All the requisites Not all of the under Sec. 52, NIL are requisites under Sec. complied with 52 are complied with Defenses His rights can only be His rights can be defeated by real defeated by real and defenses personal defenses PAGE 40 OF 320

Those mentioned in Sec. 55 (fraud, duress, force and fear, other unlawful means, illegal consideration, negotiating in breach of faith), want of consideration, incompleteness of the instrument, lack of delivery of a completed instrument

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X. Liabilities of Parties

MERCANTILE LAW

genuineness of his signature and his capacity and authority to draw the instrument, and

Primary liability: The unconditional promise attaches the moment the maker makes the instrument while the acceptor’s assent to the unconditional order attaches the moment he accepts the instrument. No further act is necessary in order for the liability to accrue. Presentment for payment is all that is necessary.

A. PARTIES PRIMARILY LIABLE Sec. 192, NIL. Person primarily liable on instrument. – The person “primarily” liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are “secondarily” liable.

A.1. MAKER Sec. 60, NIL. Liability of maker. – The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse. The term “maker” applies only to the promissory note. By signing the note, the maker also represents to the world that the payee named has the capacity to indorse at the time of the making of such note and thus represents that the named payee can transfer a good and valid title to the note by indorsement. The maker is therefore precluded from setting up such defenses as minority or insanity of the payee or ultra vires act of a payee-corporation. (Campos) A.2. ACCEPTOR Sec. 62, NIL. Liability of acceptor. – The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits: (a) The existence of the drawer, the

(b) The existence of the payee and his then capacity to indorse. A drawee has no liability on the bill until and unless he accepts the same. Unconditionally liable; the acceptor is dutybound to pay the holder at date of maturity, WON holder demands payment from him, and he is not relieved from liability even if the instrument should become overdue due to failure of holder to make such demand. (Campos) Requisites for a valid acceptance (a) It must be in writing; (b) It must be signed by the drawee; and (c) It must not change the implied promise of the acceptor to pay only in money. [Sec. 132, NIL] Note: A bill may be accepted even after it is overdue or dishonored, since an instrument does not lose its negotiability by the mere fact that its maturity date has passed or that the drawee has refused to accept or pay it. (Campos)

B. PARTIES SECONDARILY LIABLE Secondary liability: A party secondarily liable is not bound to pay unless the following have been fulfilled: (a) Due presentment or demand to the primary party (b) Dishonor by such party (c) Notice of dishonor to secondary party, and, in cases of foreign bills of exchange, protest of the bill Presentment means that the instrument is presented at maturity to the party primarily liable for the purpose of obtaining payments thereof. Without this presentment, the secondary parties cannot be held liable

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should the primary party have refused to pay upon such presentment. (Campos)

MERCANTILE LAW

take, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it.

B.1. DRAWER Sec. 61, NIL. Liability of drawer. – The drawer by drawing the instrument admits the existence of the payee and his then capacity to indorse; and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it. but the drawer ay insert in the instrument an express stipulation negativing or limiting his own liability to the holder.

W ho is a qualified indorser? One who is constituted as a mere assignor of the title to the instrument by adding to his signature the words "without recourse" or any words of similar import. A qualified indorser does not assume the liability to pay the instrument since he is merely an assignor of the title to the instrument. However, he becomes liable once he breaches a warranty. W ho is a general or unqualified indorser? Every person who indorses without qualification [Sec. 66, NIL]

The drawer warrants the existence of the payee and the latter’s capacity to indorse the instrument at the time of its issuance. (Campos)

A person placing his signature upon an instrument other than as a maker, drawer, or acceptor unless he indicates by appropriate words his intention to be bound in some other capacity [Sec. 63, NIL]

B.2. INDORSERS

A person, who places his signature on an instrument negotiable by delivery, incurs all the liabilities of an indorser [Sec. 67, NIL]

The following indorsers assume the liability to pay the instrument:

The general indorser makes two contracts:

(1) General or Unqualified Indorser; and

(1) An assignment instrument; and

(2) Irregular Indorser

or

sale

of

the

(2) A special contract of indorsement B.2.A. GENERAL OR INDORSER

UNQUALIFIED B.2.B. IRREGULAR INDORSER

(2011 Bar Question) Sec. 66, NIL. Liability of general indorser. – Every indorser who indorses without qualification, warrants to all subsequent holders in due course:

When a person not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as an indorser, in accordance with these rules:

(a) The matters and things mentioned in subdivisions [a],[b] and [c] of the next preceding section; (b) That the instrument is at the time of his indorsement valid and subsisting. And in addition, he engages that on due presentment, it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly PAGE 42 OF 320

(1) Instrument payable to order of 3rd person: liable to payee and to all subsequent parties (2) Instrument payable to the order of m aker/drawer, or payable to bearer: liable to all parties subsequent to maker/drawer (3) Signs for accom m odation of payee: liable to all parties subsequent to payee [Sec. 64, NIL]

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B.3. ORDER INDORSERS

NEGOTIABLE INSTRUMENTS LAW

OF

LIABILITY

AMONG

Sec. 68, NIL. Order in which indorsers are liable. – As respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise. Joint payees or joint indorsees who indorse are deemed to indorse jointly and severally.

XI. Warranties The primary or secondary liability of the parties should be distinguished from their warranties. (1) Primary or secondary liability of the parties makes them liable to pay the sum certain in money stated in the instrument. (2) Warranties are affirmations of the fact on the part of the parties that impose no direct obligation to pay in the absence of breach thereof. (Aquino)

Among themselves, indorsers are liable prima facie in the order they indorse. Sec. 68 does not bind the holder, and he may sue any of the indorsers, regardless of the order of their indorsement. (Campos) Promissory Note

Maker is the person primarily liable

Indorsers are secondarily liable.

MERCANTILE LAW

In case of breach of warranties, the person who breached the same may either be liable or he may be barred from asserting a particular defense.

Bill of Exchange No person primarily liable to pay until and unless the drawee accepts the order of the drawer to pay; when the drawee accepts, he becomes the acceptor Drawer and indorsers are secondarily liable

A. MAKER’S WARRANTIES (1) The maker admits the existence of the payee AND (2) His then capacity to indorse [Sec. 60, NIL]

B. DRAWER’S WARRANTIES (1) The drawer admits the existence of the payee AND (2) His then capacity to endorse

C. ACCEPTOR’S WARRANTIES (1) As to the drawer, the acceptor admits: (a) His existence (b) Genuineness of his signature (c) Capacity and authority to draw the instrument (2) As to the payee, the acceptor admits: (a) His existence (b) His then capacity to indorse [Sec. 62, NIL] PAGE 43 OF 320

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The acceptor is precluded from setting up certain defenses by reason of his warranties like the defense that the drawer is a minor or the signature of the drawer is forged. (Aquino)

MERCANTILE LAW

XII. Presentment Payment

for

A. PRESENTMENT; MEANING D. GENERAL WARRANTIES

INDORSER’S

(1) That the instrument is genuine in and in all respects what it purports to be (2) That he has a good title to it (3) That all prior parties had capacity to contract (4) That the instrument is, at the time of his indorsement, valid and subsisting [Sec. 66, NIL] These warranties are in favor of all subsequent holders in due course. [Ang Tiong v. Ting, G.R. No. L-26767 (1968)]

E. QUALIFIED WARRANTIES

Presentment for payment is the presentation of the instrument, whether a note or a bill, to the person primarily liable for the purpose of demanding and obtaining payment thereof. (Campos) (1) The production of a Bill of Exchange to the drawer or acceptor for payment; or (2) The production of a Promissory Note to the party liable for payment.

B. DATE AND TIME OF PRESENTMENT Sec. 72, NIL. What constitutes sufficient presentment. - Presentment for payment, to be sufficient, must be made:

INDORSER’S

(a) By the holder, or by some person authorized to receive payment on his behalf; (b) At a reasonable hour on a business day; (c) At a proper place as herein defined; (d) To the person primarily liable on the instrument, or if he is absent or inaccessible, to any person found at the place where the presentment is made.

(1) That the instrument is genuine in and in all respects what it purports to be (2) That he has a good title to it (3) That all prior parties had capacity to contract (4) That he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. [Sec. 68, NIL]

(1) Bearing fixed m aturity/not payable on demand – on the day it falls due [Secs. 71 and 85, NIL] (2) Payable on demand – within a reasonable time after its issue [Sec. 7, NIL] (3) Dem and bill of exchange – within a reasonable time after the last negotiation. [Sec. 71, NIL] Presentment for payment cannot be made on a Sunday or legal holiday, and if the note matures on such a day, since the maker cannot be compelled to pay sooner than he promised, the note or bill will have to be presented on the next business day. (Campos)

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Instruments falling due or becoming payable on Saturday are to be presented for payment on the next succeeding business day, except that instruments payable on demand may, at the option of the holder, be presented for payment before twelve o’clock noon on Saturday when that entire day is not a holiday. [Sec. 85, NIL] Inevitable or unavoidable causes not attributable to the fault of the holder and making presentment morally or physically impossible may excuse delay in presentment. (Campos)

D. PARTIES TO WHOM PRESENTMENT FOR PAYMENT SHOULD BE MADE General rule: Presentment for payment must be made to the person primarily liable on the instrument or if he is absent or inaccessible, to any person found at the place where the presentment is made. Exceptions: Where the person primarily liable is/are: (1) Dead – presentment for payment must be made to his personal representative

Note: Although presentment was made within a reasonable time from last negotiation, it may have been made within an unreasonable time from issuance. Thus holder may still not be a holder in due course under Sec. 71.

(2) Partners – presentment for payment may be made to any one of them, even though there has been a dissolution of the firm (3) Several persons, not partners (joint debtors) – presentment for payment must be made to them all

C. NECESSITY OF PRESENTMENT FOR PAYMENT W hen necessary: In order to charge the drawer and indorsers [Sec. 70, NIL] W hen NOT necessary: (1) To charge the person primarily liable on the instrument [Sec. 70, NIL] (2) To charge the drawer where he has no right to expect or require that the drawee or acceptor will pay the instrument. [Sec. 79, NIL] (3) To charge an indorser where the instrument was made or accepted for his accommodation and he has no reason to expect that the instrument will be paid if presented. [Sec. 80, NIL] (4) When the bill of exchange has previously been dishonored by non-acceptance and has not been subsequently accepted

MERCANTILE LAW

E. DISPENSATION PRESENTMENT FOR PAYMENT

WITH

W hen Excused: (1) Where, after the exercise of reasonable diligence, presentment cannot be made; (2) Where the drawee is a fictitious person; (3) By waiver of presentment, express or implied. [Sec. 82, NIL]

F. DISHONOR BY NON-PAYMENT The instrument is dishonored by nonpayment when: (1) It is duly presented for payment and payment is refused or cannot be obtained; or (2) Presentment is excused and the instrument is overdue and unpaid [Sec. 83, NIL] In case of waiver of protest, whether in the case of a foreign bill of exchange or other NI – deemed to be a waiver not only of a formal protest but also of presentment and notice of dishonor [Sec. 111, NIL]

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XIII. Notice of Dishonor

Notice of dishonor may be given either to the party himself or to his agent in that behalf. [Sec. 97, NIL]

Notice of dishonor is bringing either verbally or in writing, to the knowledge of the drawer or the indorser of the instrument, the fact that a specified negotiable instrument, upon proper proceedings taken, has not been accepted, or has not been paid, and that the party notified is expected to pay it. [Martin v. Brown, 75 Ala. 442] Notice given by holder or his agent to party or parties secondarily liable that the instrument was dishonored by: (1) Non-acceptance by the drawee of a bill; or (2) Non-payment by the acceptor of a bill; or (3) Non-payment by the maker of a note [Sec. 89, NIL] Requisites: (a) Given by holder or his agent, or by any party who may be compelled by the holder to pay [Sec. 90, NIL] (b) Given to secondary party or his agent [Sec. 97, NIL] (c) Given within the periods provided by law [Sec. 102, NIL] (d) Given at the proper place [Secs. 103 and 104, NIL]

A. PARTIES TO BE NOTIFIED

bill

Where the instrument has been dishonored in the hands of an agent, he may either himself give notice to the parties liable thereon, or he may give notice to his principal. [Sec. 94, NIL] A.3. IF PARTY IS DEAD The notice must be given to a personal representative, if there be one, and if with reasonable diligence, he can be found. If there be no personal representative, notice may be sent to the last residence or last place of business of the deceased. [Sec. 98, NIL] A.4. TO PARTNERS Where the parties to be notified are partners, notice to any one partner is notice to the firm, even though there has been a dissolution. [Sec. 99, NIL] A.5. TO JOINT PARTIES Notice to joint parties who are not partners must be given to each of them, unless one of them has authority to receive such notice for the others. [Sec. 10, NIL]

Where a party has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, notice may be given either to the party himself or to his trustee or assignee. [Sec. 101]

and

B. WHEN GIVEN

Note: Notice must be given to persons secondarily liable. Otherwise, such parties are discharged. Notice may be given to the party himself or to his agent. A.1. TO WHOM IN GENERAL

A.2. IF GIVEN BY AGENT

A.6. TO BANKRUPT

(1) Non-acceptance [bill] – to persons secondarily liable, namely, the drawer and indorsers as the case may be (2) Non-payment (both note) – to indorsers

MERCANTILE LAW

Notice may be given as soon as the instrument is dishonored [Sec. 102, NIL]

C. WHEN NOT NECESSARY TO GIVE TO DRAWER PAGE 46 OF 320

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(2011 Bar Question) Notice of dishonor is not required to be given to the drawer in any of the following cases: (1) Drawer and drawee are the same; (2) Drawee is a fictitious person or not having the capacity to contract; (3) Drawer is the person to whom the instrument is presented for payment;

The notice may be given by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who, upon taking it up, would have a right to reimbursement from the party to whom the notice is given. [Sec. 90, NIL] F.1. WHO SHOULD GIVE (1) Holder

(4) The drawer has no right to expect or require that the drawee or acceptor swill honor the instrument;

(2) Agent or representative of holder. (3) Any party who may be compelled to pay like indorsers.

(5) Where the drawer has countermanded payment [Sec. 114, NIL]

D. WHEN NOT NECESSARY TO GIVE TO INDORSER (2011 Bar Question) Notice of dishonor is not required to be given to an indorser in the following cases: (1) Drawee is a fictitious person or does not have the capacity to contract, and indorser was aware of that fact at the time he indorsed the instrument;

MERCANTILE LAW

(4) Agent of any party who may be compelled. [Sec. 90, NIL]

G. EFFECT OF NOTICE Notice of dishonor is required to charge parties secondarily liable. Upon valid notice of dishonor, immediate right of recourse against the indorser arises. It is as if the indorser becomes primarily liable in the sense that the holder need not claim payment from the person primarily liable (Sundiang and Aquino)

(2) Indorser is the person to whom the instrument is presented for payment;

H. FORM OF NOTICE

(3) Instrument was made or accepted for his accommodation. [Sec. 115, NIL]

(1) In writing; or

The notice may be: (2) Merely oral The notice may be given in any terms which:

E. WHO WILL BENEFIT

(1) Sufficiently identify the instrument; and

If given by or on behalf of the holder: (1) All subsequent holders (2) All prior parties (as to holder) who have a right of recourse against the party to whom it is given. [Sec. 92, NIL]

(2) Indicate that it has been dishonored by non-acceptance or non-payment It may in all cases be given by delivering it personally or through the mails. [Sec. 96 NIL]

If given by the indorser: (1) Holder (2) All parties subsequent to the party to whom notice is given. [Sec. 93, NIL]

F. PARTIES WHO MAY GIVE NOTICE OF DISHONOR

No misdescription of the amount, or of the date, or of the name of the parties, or of the time the paper falls due, or other defect will vitiate the notice of dishonor, unless it misleads the party to whom it is sent. (Campos)

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I.

NEGOTIABLE INSTRUMENTS LAW

WAIVER

Notice of dishonor may be waived either before the time of giving notice has arrived or after the omission to give due notice, and the waiver may be expressed or implied. [Sec. 109, NIL] Where the waiver is embodied in the instrument itself, it is binding upon all parties; but, where it is written above the signature of an indorser, it binds him only. [Sec. 110, NIL]

J. DISPENSATION WITH NOTICE Notice of dishonor is dispensed with: (1) When party to be notified knows about the dishonor, actually or constructively [Secs. 114-117, NIL] (2) If waived [Sec. 109, NIL] (3) When after due diligence, it cannot be given [Sec. 112, NIL]

K. EFFECT OF FAILURE TO GIVE NOTICE Failure to give notice to parties secondarily liable discharges such parties An omission to give notice of dishonor by non-acceptance does not prejudice the rights of a holder in due course subsequent to the omission [Sec. 117, NIL] Note: A holder in due course cannot be prejudiced by the failure or neglect of a previous holder to give notice of dishonor by non-acceptance. A dishonor by non-payment necessarily presupposes the instrument has matured, and therefore, no holder subsequent thereto can be a holder in due course. Such dishonor by non-payment will thus prejudice al subsequent holders. (Campos)

MERCANTILE LAW

XIV. Discharge of Negotiable Instrument Discharge: The release of all parties, whether primary or secondary, from the obligation on the instrument. It renders the instrument without force and effect and, consequently, non-negotiable (De Leon)

A. DISCHARGE INSTRUMENT

OF

NEGOTIABLE

Sec. 119, NIL. Instrument; How discharged. - A negotiable instrument is discharged: (1) By payment in due course by or on behalf of the principal debtor; (2) By payment in due course by the party accommodated, where the instrument is made or accepted for his accommodation; (3) By the intentional cancellation thereof by the holder; (4) By any other act which will discharge a simple contract for the payment of money; (5) When the principal debtor becomes the holder of the instrument at or after maturity in his own right.

B. BY PAYMENT IN DUE COURSE (2000 Bar Question) Sec. 51, NIL. Right of Holder to Sue for Payment. – The holder of a negotiable instrument may sue thereon in his own name; and payment to him in due course discharges the instrument.

Sec. 88, NIL. What Constitutes Payment in Due Course. - Payment is made in due course when it is made at or after the maturity of the payment to the holder thereof in good faith and without notice that his title is defective. (Sec. 88)

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MERCANTILE LAW

Requisites:

C. BY INTENTIONAL CANCELLATION

(1) Payment must be made at or after maturity.

(2011 Bar Question)

(2) Payment must be made to the holder. (3) Payment must be made in good faith and without notice that holder’s title is defective. •

Payment should be in money in order to effect its discharge. (Campos)

•

If payment is made before maturity and the note is negotiated to a HDC, the latter may recover on the instrument.

•

Payment to one of several payees or indorsees in the alternative discharges the instrument, but payment to one of several joint payees or joint indorsers is not a discharge. The party receiving payment must have been authorized by others to receive payment.

By whom m ade: (1) Payment in due course by or on behalf of the principal debtor. (2) Payment in due course by party accommodated where party is made/ accepted for accommodation whether or not he appears to be a party to the instrument. •

If payment is not made by the parties enumerated, it would constitute a purchase or negotiation and the instrument would remain outstanding.

•

Principal debtor: includes the maker and the acceptor.

•

If the primary party is an accommodation party, like a guarantor or a surety, payment by him does not discharge the instrument. [Fox v. Kroeger, 119 Tex. 511 (1931)]

Sec. 123, NIL. Cancellation; Unintentional; Burden of Proof. - A cancellation made unintentionally or under a mistake or without the authority of the holder, is inoperative; but where an instrument or any signature thereon appears to have been cancelled, the burden of proof lies on the party who alleges that the cancellation was made unintentionally or under a mistake or without authority. •

The burden of proving that a cancellation was made unintentionally or by mistake or through fraud, is on the person claiming its effectiveness. Cancellation is presumed to be intentional. (Campos)

•

Cancellation need not be supported by consideration and is effective even without notice to the primary party.

D. BY OTHER ACTS THAT DISCHARGE A SIMPLE CONTRACT FOR PAYMENT OF MONEY Any other act which discharges a simple contract for payment of money. Sec. 1231, Civil extinguished by:

Code.

Obligations

are

(1) Payment or performance; xxx (3) By condonation or remission of the debt; (4) By the confusion or merger of the rights of a debtor; (5) By compensation; (6) By novation Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition, and prescription, are governed elsewhere in this Code.

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E. BY REACQUISITION OF PRINCIPAL DEBTOR IN HIS OWN RIGHT

(4) By a valid tender or payment made by a prior party;

Principal debtor becomes holder of instrument at or after maturity in his own right and not as an agent or for and in behalf of another.

(5) By a release of the principal debtor unless the holder's right of recourse against the party secondarily liable is expressly reserved;

Reacquisition must be at or after maturity for the instrument to be discharged, otherwise the instrument may be further negotiated. (Campos)

(6) By any agreement binding upon the holder to extend the time of payment or to postpone the holder's right to enforce the instrument unless made with the assent of the party secondarily liable or unless the right of recourse against such party is expressly reserved.

•

F. BY MATERIAL ALTERATION Section 125, NIL. What constitutes a material alteration. - Any alteration which changes: (1) Date (2) Sum payable, either for principal or interest (3) Time or place of payment (4) Number or relations of the parties (5) Medium or currency in which payment is to be made (6) Or which adds a place of payment where no place of payment is specified (7) Or any other change or addition which alters the effect of the instrument in any respect Material alteration without assent of all parties liable avoids instrument except as against party to alteration and subsequent indorsers [Sec. 124, NIL] (2011 Bar Question)

G. DISCHARGE OF SECONDARILY LIABLE

PARTIES

Sec. 120, NIL. When Persons Secondarily Liable on, Discharged.- A person secondarily liable on the instrument is discharged: (1) By any act which discharges the instrument;

OTHER GROUNDS (1) Failure to make due presentment Sec. 144, NIL. When Failure to Present Releases Drawer and Indorsers. - Except as herein otherwise provided, the holder of a bill which is required by the next preceding section to be presented for acceptance must either present it for acceptance or negotiate it within a reasonable time. If he fails to do so, the drawer and all indorsers are discharged. (2) Failure to give notice of dishonor (3) Certification of check at instance of holder Sec. 188, NIL. Effect where the holder of check procures it to be certified. - Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon. (4) Reacquisition by prior party Sec. 121, NIL. Right of party who discharges instrument. - Where the instrument is paid by a party secondarily liable thereon, it is not discharged; but the party so paying it is remitted to his former rights as regard all prior parties, and he may strike out his own and all subsequent indorsements and against negotiate the instrument, except:

(2) By the intentional cancellation of his signature by the holder; (3)

By the discharge of a prior party;

(a) Where it is payable to the order of a third person and has been paid by the drawer; and (b) Where it was made or accepted for

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accommodation and has been paid by the party accommodated.

•

Where instrument negotiated back to a prior party, such party may reissue and further negotiate, but he is not entitled to enforce payment against any intervening party to whom he was personally liable

Sec. 50, NIL. When prior party may negotiate instrument. - Where an instrument is negotiated back to a prior party, such party may, subject to the provisions of this Act, reissue and further negotiable the same. But he is not entitled to enforce payment thereof against any intervening party to whom he was personally liable.

•

Where instrument is paid by party secondarily liable, it is not discharged, but (a) the party so paying it is remitted to his former rights as regard to all prior parties (b) and he may strike out his own and all subsequent indorsements, and again negotiate instrument, except: where it is payable to order of 3rd party and has been paid by drawer or where it’s made/accepted for accommodation and has been paid by party accommodated

third person, and has been paid by the drawer; (2) Where it was made or accepted for accommodation, and has been paid by the party accommodated.

•

The discharge of a secondary party is not the same as the discharge of the instrument. The discharge of the instrument prevents subsequent holders from becoming holders in due course.

I.

RENUNCIATION BY HOLDER

Sec. 122, NIL. Renunciation by Holder. - The holder may expressly renounce his rights against any party to the instrument before, at, or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon. Two forms of renunciation (1) A written declaration to that effect; or (2) By surrender of the instrument to the primary party.

To Whom Made

(5) By taking a qualified acceptance

H. RIGHT OF PARTY DISCHARGED INSTRUMENT

MERCANTILE LAW

WHO

Sec. 121, NIL. Where the instrument is paid by a party secondarily liable thereon, it is not discharged; but the party so paying it is remitted to his former rights as regards to all prior parties, and he may strike out his own and all subsequent indorsements, and again negotiate the instrument, except:

Effect

At or after maturity in favor of principal debtor

Discharges instrument

At or after maturity in favor of any party

Discharge only such party and the parties subsequent to him

•

(1) Where it is payable to the order of a PAGE 51 OF 320

the

Need not be supported by consideration.

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XV. Material Alteration

HDC, he may enforce payment thereof according to its original tenor regardless of whether the alteration was innocent or fraudulent.

A. CONCEPT (2) •

Any change in the instrument which affects or changes the liability of the parties in any way.

•

Any alteration which changes the date, sum payable, time or place of payment, number of relation of the parties, or medium of currency of payment where none is specified or which alters the effect of the instrument in any respect [PNB v. CA, GR No. L-26001 (1968)]

•

An alteration is said to be material if it alters the effect of the instrument. In other words, a material alteration is one which changes the items which are required to be stated under Sec. 1 of the NIL (ibid.)

B. CHANGES IN THE FOLLOWING CONSTITUTE MATERIAL ALTERATIONS [Sec. 125, NIL] (1) Date (2) Sum payable, either for principal or interest (3) Time or place of payment (4) Number or relations of the parties (5) Medium or currency in which payment is to be made (6) That which adds a place of payment where no place of payment is specified (7) Any other change or addition which alters the effect of the instrument in any respect.

C. EFFECT OF MATERIAL ALTERATION (1)

MERCANTILE LAW

Alteration by a party – Avoids the instrument except as against the party who made, authorized, or assented to the alteration and subsequent indorsers. However, if an altered instrument is negotiated to a PAGE 52 OF 320

Alteration by a stranger (spoliation) (2011 Bar Question)the effect is the same as where the alteration was made by a party wherein a HDC can recover on the original tenor of the instrument. [Sec. 124, NIL]

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XVI. Acceptance

MERCANTILE LAW

and, if such request is refused, may treat the bill as dishonored”

A. DEFINITION Acceptance: an acceptance completed by delivery or notification. [Sec. 191, NIL] The signification by the drawee of his assent to the order of the drawer. [Sec. 132, NIL]

B. REQUISITES

Effects: When an acceptance is written on a paper than the bill itself, it does not bind the acceptor except in favor of a person to whom it is shown and who, on the faith thereof, receives the bill for value.

E. MANNER E.1. EXPRESS ACCEPTANCE

[Sec. 132, NIL] (1) In writing (2) Signed by the drawee (3) Does not express that the drawee will perform his promise by and other means than the payment of money

C. KINDS OF ACCEPTANCE (1) General – assents without qualification to the order of the drawer [Sec. 139, NIL] (2) Qualified –which in express terms varies the effect of the bill as drawn [Secs. 141 & 142, NIL]: (a) Conditional – makes payment by the acceptor dependent on the fulfillment of a condition therein stated (b) Partial – an acceptance to pay part only of the amount for which the bill is drawn. (c) Local – an acceptance to pay only at a particular place. (d) Qualified as to time (e) The acceptance of some one or more of the drawees but not of all.

Must be in writing and signed by the drawee and must not express that the drawee will perform his promise by any other means than the payment of money. [Sec. 132, NIL] If request for a written acceptance is refused, the holder may treat the bill as dishonored [Sec. 13, NIL] E.2. IMPLIED ACCEPTANCE (1) If the drawee refuses to return the instrument within 24 hours after it was delivered for acceptance. (2) If the drawee destroys the same. (3) If the drawee makes an unconditional promise in writing before the instrument is drawn, with respect to every person who, upon the faith thereof, receives the bill for value.

F. TIME FOR ACCEPTANCE [Sec. 136, NIL] •

The drawee is allowed twenty-four hours after presentment in which to decide whether or not he will accept the bill.

•

The acceptance, if given, dates as of the day of presentation.

D. PROOF OF ACCEPTANCE (Sundiang and Aquino)

G. RULES GOVERNING ACCEPTANCE

The written acceptance may be in the instrument itself or in a separate instrument. However, under Sec. 133, “the holder of a bill presenting the same for acceptance may require the acceptance be written on the bill,

Implication of payment without acceptance by a drawee [FEBTC vs. Gold Palace Jewellery Co,, Nachura, G.R. No. 168274 (2008)]

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•

The NIL explicitly provides that the acceptor, by accepting the instrument, engages that he will pay it according to the tenor of his acceptance.

XVII. Presentment for Acceptance

•

This provision applies with equal force in case the drawee pays a bill without having previously accepted it.

A. REQUISITES:

•

His actual payment of the amount in the check implies not only his assent to the order of the drawer and a recognition of his corresponding obligation to pay the aforementioned sum, but also, his clear compliance with that obligation.

•

•

•

•

(2) At a reasonable hour on a business day; (3) At a proper place as herein defined;

Actual payment by the drawee is greater than his acceptance, which is merely a promise in writing to pay. The payment of a check includes its acceptance.

Right to unqualified acceptance •

(1) By the holder, or by some person authorized to receive payment on his behalf;

The holder may refuse to take a qualified acceptance and if he does not obtain an unqualified acceptance, he may treat the bill as dishonored by non-acceptance. Where a qualified acceptance is taken, the drawers and indorsers are discharged from liability on the bill unless they have expressly or impliedly authorized the holder to take a qualified acceptance, or subsequently assent thereto.

(4) To the person primarily liable on the instrument, or if he is absent or inaccessible, to any person found at the place where the presentment is made. General rule: Presentment for acceptance is not necessary in order to render any party to the bill liable. [Sec. 143, NIL]

B. WHEN PRESENTMENT ACCEPTANCE NECESSARY:

Presentment for acceptance must be made: (1) Where the bill is payable after sight, or in any other case, where presentment for acceptance is necessary in order to fix the maturity of the instrument; or

When the drawer or indorser receives notice of a qualified acceptance, he must, within a reasonable time, express his dissent to the holder or he will be deemed to have assented thereto. However, acceptance is presumed to be unqualified or absolute. (Sundiang and Aquino)

FOR

(2) Where the bill expressly stipulates that it shall be presented for acceptance; or (3) Where the bill is drawn payable elsewhere than at the residence or place of business of the drawee.[Sec. 143, NIL] Note: It is not necessary to present a check for acceptance because it is not one of those required under Sec. 143.

C. WHEN PRESENTMENT ACCEPTANCE EXCUSED:

FOR

Presentment for acceptance is excused and a bill may be treated as dishonored by nonacceptance in either of the following cases: (1) Where the drawee is dead, or has absconded, or is a fictitious person or a PAGE 54 OF 320

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person not having capacity to contract by bill. (2) Where, after the exercise of reasonable diligence, presentment cannot be made. (3) Where, although presentment has been irregular, acceptance has been refused on some other ground. [Sec. 148,NIL]

MERCANTILE LAW

on demand may, at the option of the holder be presented for payment before twelve o’clock noon on Saturday when that entire day is not a holiday. [Sec. 85, NIL]

F. HOW MADE [Sec. 145, NIL] In general:

D. TIME/PLACE/MANNER PRESENTMENT

OF

(2) At a reasonable hour (3) On a business day

D.1. WHEN MADE A bill may be presented for acceptance on any day on which negotiable instruments may be presented for payment under the provisions of Sections 72 and 85 of this Act. When Saturday is not otherwise a holiday, presentment for acceptance may be made before twelve o'clock noon on that day. [Sec. 146, NIL]

E. WHAT CONSTITUTES SUFFICIENT PRESENTMENT? Presentment for payment, to be sufficient, must be made: (1)

(1) By or on behalf of the holder

By the holder, or by some person authorized to receive payment on his behalf;

(2) At a reasonable hour on a business day; (3) At the proper place as herein defined [Sec. 73, NIL]; (4) To the person primarily liable on the instrument or if he is absent or inaccessible, to any person found at the place where the presentment is made. [Sec. 72, NIL] Time of maturity: Every negotiable instrument is payable at the time fixed therein without grace. When they day of maturity falls upon Sunday, or a holiday, the instrument is payable on the next succeeding business day. Instruments falling due or becoming payable on Saturday are to be presented for payment on the next succeeding business day, except that instrument payable

(4) Before the bill is overdue (5) To the drawee or his agent W here a bill is addressed to 2 or m ore drawees who are not partners – presentment must be made to them all XPT. One has authority to accept/refuse for all W here the drawee is dead – presentment may be made to his personal representative W here the drawee has been adjudged a bankrupt or insolvent or has m ade an assignm ent for the benefit of creditors – presentment may be made to him or to his trustee or assignee.

G. EFFECT OF FAILURE TO MAKE PRESENTMENT Failure to make presentment discharges the drawer and all indorsers. [Sec. 144, NIL]

H. DISHONOR BY NON-ACCEPTANCE W hen dishonored by non-acceptance: A bill is dishonored by non-acceptance: (1) When it is duly presented for acceptance and such an acceptance as is prescribed by this Act is refused or cannot be obtained; or

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(2) When presentment for acceptance is excused and the bill is not accepted. [Sec. 149, NIL]

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XVIII. Promissory Notes A promissory note is:

Duty of holder: Where a bill is duly presented for acceptance and is not accepted within the prescribed time, the person presenting it m ust treat the bill as dishonored by non-acceptance or he loses the right of recourse against the drawer and indorsers. [Sec. 150, NIL] Effect: When a bill is dishonored by nonacceptance, an immediate right of recourse against the drawer and indorsers accrues to the holder and no presentment for payment is necessary. [Sec. 151, NIL]

(1) An unconditional promise in writing (2) Made by one person to another (3) Signed by the maker (4) Engaging to pay on demand, or at a fixed or determinable future time (5) A sum certain in money to order or to bearer (6) Where a note is drawn to the maker's own order, it is not complete until indorsed by him. [Sec. 184, NIL] There are originally 2 parties in a promissory note: (1) Maker – party who executes the written promise to pay. (2) Payee – party in whose favor the promissory note is made payable.

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XIX. Checks

discharged from liability. [Sec. 188, NIL] (c) A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check. [Sec. 189, NIL]

A. DEFINITION A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this Act applicable to a bill of exchange payable on demand apply to a check. [Sec. 185, NIL]

B. KINDS

(5) Crossed Check – The NIL is silent with respect to crossed checks, although the Code of Commerce makes reference to such instruments. Article 541 of the Code of Commerce states: “The maker or any legal holder of a check shall be entitled to indicate therein that it be paid to a certain banker or institution, which he shall do by writing across the face the name of said banker or institution, or only the words ‛and company.”

(1) Cashier’s Check – One drawn by the cashier of a bank, in the name of the bank against the bank itself payable to a third person. It is a primary obligation of the issuing bank and accepted in advance upon issuance. [Tan vs. CA, G.R. No. 108555 (1994)]

Under usual practice, crossing a check is done by placing two parallel lines diagonally on the left top portion of the check. [State Investment House vs. IAC, G.R. No. 72764 (1989)]

(2) Manager’s Check – A check drawn by the manager of a bank in the name of the bank itself payable to a third person. It is similar to the cashier’s check as to the effect and use. •

In issuing a manager’s check, the bank assumed the liabilities of the acceptor under Sec. 62, NIL. [Equitable PCI Bank v. Ong, G.R. No. 156207 (2006)]

(3) Memorandum Check – A check given by a borrower to a lender for the amount of a short loan, with the understanding that it is not to be presented at the bank, but will be redeemed by the maker himself when the loan falls due and which understanding is evidenced by writing the word “memorandum”, “memo” or “mem” on the check. (4) Certified Check – An agreement whereby the bank against whom a check is drawn undertakes to pay it at any future time when presented for payment [Sec. 187, NIL] (a) Certification is equivalent acceptance. [Sec. 187, NIL]

MERCANTILE LAW

to

(b) Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are

Types: Special and General The crossing may be special wherein between the two parallel lines is written the name of a bank or a business institution, in which case the drawee should pay only with the intervention of that bank or company, or crossing may be general wherein between two parallel diagonal lines are written the words "and Co." or none at all as in the case at bar, in which case the drawee should not encash the same but merely accept the same for deposit.

C. EFFECTS (1) The check may not be encashed; it may only be deposited with the bank; (2) The check may be negotiated only once to a person who has an account with the bank; and (3) It serves as a warning to a holder that the check has been issued for a definite

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purpose. [Bataan Cigar vs. CA, G.R. No. 93048 (1994)]

D. PRESENTMENT FOR PAYMENT A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank. The bank is not liable to the holder, unless and until it accepts or certifies the check. [Sec. 189, NIL] D.1. TIME When to present? A check must be presented for payment within reasonable time after its issue.

E. EFFECT OF DELAY The drawer will be discharged from liability thereon to the extent of the loss caused by the delay. [Sec. 186, NIL] Certification of checks: An agreement whereby the bank against whom a check is drawn, undertakes to pay it at any future time when presented for payment Effects: (1) Equivalent to acceptance [Sec. 187, NIL] and is the operative act that makes banks liable (2) Assignment of the funds of the drawer in the hands of the drawee [Sec. 189, NIL] (3) If obtained by the holder, discharges the persons secondarily liable thereon [Sec. 188, NIL] Refusal of drawee bank to certify: The holder has no action against the bank but he has a right of action against the drawer. The drawer in turn has right of action against the bank based on the original contact of deposit between them.

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INSURANCE

MERCANTILE LAW

MERCANTILE LAW

INSURANCE

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INSURANCE

I. Concept of Insurance On August 15, 2013, RA 10607 was signed into law. It is a restatement of the Insurance Code (PD 612), with amendments. While RA 10607 restated the whole law, most of the amendments touch only the administrative portion of the Code, and very little on the substantive portion. The section numbers hereinafter generally pertain to RA 10607, unless otherwise indicated.

A. CONTRACT OF INSURANCE Sec. 2(a).A contract of insurance is an agreement whereby one undertakes for a consideration to indemnify another against loss, damage or liability arising from an unknown or contingent event. A contract of suretyship shall be deemed to be an insurance contract only if made by a surety who or which, as such, is doing an insurance business.

A contract of insurance involves public interest. Thus, the business is regulated by the state through the requirement of licenseor certificate of authority [White Gold Marine Services v. Pioneer Insurance, G.R. No. 154514 (2005)]. A.1. DEFINITION Thus, a contract of insurance is: (1) A contract of indemnity; (2) Wherein one consideration;

undertakes

(3) To indemnify another damage, or liability;

for

against

a

MERCANTILE LAW

a designated event only in cases where it has happened already but the parties do not know about it, e.g., prior loss of a ship at sea (applicable only to marine insurance). [De Leon, The Insurance Code of the Philippines Annotated (2014)] A.2. FORM An Insurance policy is different from the contract of insurance. The policy is the formal written instrument evidencing the contract of insurance entered into between the insured and the insurer. On the other hand, there is no particular form required for a contract of insurance. Sec. 232. No policy, certificate or contract of insurance shall be issued or delivered within the Philippines unless in the form previously approved by the Commissioner, and no application form shall be used with, and no rider, clause, warranty or endorsement shall be attached to, printed or stamped upon such policy, certificate or contract unless the form of such application, rider, clause, warranty or endorsement has been approved by the Commissioner.

A.3. INSURANCE DISTINGUISHED

AND

GAMBLING

A contract of insurance is a contract of indemnity and is not a wagering or gambling contract. It is based on contingency, but it is not a contract of chance for profit. In a wagering contract, the parties contemplate gain through mere chance; in a contract of insurance, the parties seek to distribute possible loss by reason of mischance [Carale, The Philippine Insurance Law (2014)]

loss,

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B. DOING OR TRANSACTING INSURANCE BUSINESS Sec. 2(b). The term “doing an insurance business or transacting an insurance business” includes: (1) Making or proposing to make, as insurer, any insurance contract; (2) Making or proposing to make, as surety, any contract of suretyship as a vocation and not as merely incidental to any other legitimate business or activity of the surety; (3) Doing any kind of business, including a reinsurance business, specifically recognized as constituting the doing of an insurance business within the meaning of the Insurance Code; (4) Doing or proposing to do any business in substance equivalent to any of the foregoing in a manner designed to evade the provisions of the Insurance Code. In the application of the provisions of this Code, the fact that no profit is derived from the making of insurance contracts, agreements or transactions or that no separate or direct consideration is received therefor, shall not be deemed conclusive to show that the making thereof does not constitute the doing or transacting of an insurance business

General rule: An insurance business consists in undertaking, for a consideration, to indemnify another against loss, damage or liability arising from an unknown or contingent event. Exception: Those not formally designated as insurance businesses but are deemed “doing or transacting an insurance business” as listed in Sec. 2(b). In Philippine Health Care Providers Inc. v. CIR [G.R. No. 167330 (2009)]the Court clarified that: (1) Contracts a law firm enters into with clients whereby in consideration of periodical payments, the law firm promises to represent such clients in all suits for or against them are not

insurance contracts but are contracts for personal services; (2) But, a contract by which a corporation, in consideration of a stipulated amount, agrees at its own expense to defend a physician against all suits for damages for malpractice is one of insurance, and the corporation will be deemed as engaged in the business of insurance since the purpose of the contract is to indemnify against loss and damage. A Protection and Indemnity agreement is a form of insurance against third party liability where an association of ship owners in general band together for the specific purpose of providing insurance cover on a mutual basis against liabilities incidental to ship owning that the members incur against third parties. In Pandiman Philippines v. Marine Manning Management, [G.R. No. 143313 (2005)] the Court considered a P & I agreement as an insurance contract.

C. GOVERNING LAW The Insurance Code primarily governs insurance contracts, unless there is a special law which specifically govern (e.g., insurance contract under R.A. 1161 or the Social Security Act), in which case, the Insurance Code governs subsidiarily. Matters not expressly provided for in the Insurance Code and special laws are regulated by the Civil Code.

D. PARTIES CONTRACT

TO

AN

INSURANCE

Sec. 6 Every person, partnership, association, or corporation duly authorized to transact insurance business as elsewhere provided in this code, may be an insurer. Sec. 7 Anyone except a public enemy may be insured. There is no definition of what a “public enemy” is, but a definition that is generally accepted and in keeping with the nature of an insurance contract is one where a person possesses the nationality of the state which another is at war [Carale (2014)]

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INSURANCE

E. BANCASSURANCE RA 10607 introduced provisions governing bancassurance. Sec. 375. The term bancassurance shall mean the presentation and sale to bank customers by an insurance company of its insurance products within the premises of the head office of such bank duly licensed by the Bangko Sentral ng Pilipinas or any of its branches under such rules and regulations which the Commissioner and the Bangko Sentral ng Pilipinas may promulgate. To engage in bancassurance arrangement, a bank is not required to have equity ownership of the insurance company. No insurance company shall enter into a bancassurance arrangement unless it possesses all the requirements as may be prescribed by the Commissioner and the Bangko Sentral ng Pilipinas. No insurance product, whether life or non-life, shall be issued or delivered pursuant to a bancassurance arrangement, unless in the form previously approved by the Commissioner. Sec. 376. Personnel tasked to present and sell insurance products within the bank premises shall be duly licensed by the Commissioner and shall be subject to the rules and regulations of this Act.

F. PRE-NEED PLANS RA 9829 (Pre- Need Code), Sec. 4(B). Pre-need plans are contracts, agreements, deeds or plans for the benefit of the planholders which provide for the performance of future services, payment of monetary considerations or delivery of other benefits at the time of actual need or agreed maturity date, as specified therein, in exchange for cash or installment amounts with or without interest or insurance coverage and includes life, pension, education, interment and other plans, instruments, contracts or deeds.

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Pre-need plans are governed by the Pre-Need Code (RA 9829). They are not considered as insurance contracts because 1) Pre-need plans can have insurance coverage, implying that they are separate contracts 2) Pre-need plans do not involve unknown or contingent events but events certain to happen at a certain time. However, all Pre-need plans are under the primary and exclusive power supervision and regulation of the Insurance Commission [Sec. 5, RA 9829]. In addition, the Insurance Commissioner shall have the primary and exclusive power to adjudicate any and all claims involving pre-need plans. If the amount of benefits does not exceed P100,000, which decision shall be final and executory[Sec. 55, RA 9829].

G. HEALTH CARE AGREEMENTS For purposes of determining the liability of a health care provider to its members, jurisprudence holds that a health care agreement is in the nature of non-life insurance, which is primarily a contract of indemnity. Once the member incurs hospital, medical or any other expense arising from sickness, injury or other stipulated contingent, the health care provider must pay for the same to the extent agreed upon under the contract. [Fortune Medicare Inc. v. David Amorin, G.R. No. 195872 (2014)] In Mitsubishi Motors Philippines Salaried Employees Union v. Mitsubishi Motors Philippines Corp. [G.R. 175773(2013)], the Court held that there can be no recovery from an insurance clause under a CBA if there was already recovery under a Health Care agreement since the court considered the agreement as a non-life insurance contract. NOTE: In the earlier case of Philippine Health Care Providers Inc. v. CIR [G.R. No. 167330 (2009)], the Court held that Health Maintenance Organizations, which enter into Healthcare agreements are not in the business of insurance

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II. Elements of Insurance Contract

INSURANCE

an

A. IN GENERAL (1) Subject matter – what the insured has an insurable interest in; (2) Cause – event or peril insured against; (3) Risk of loss or damage being assured by the Insurer (4) Consideration – premium payments paid by the insured (5) Risk-Distributing Schem e – distribute and transfer by the insurer of risk of loss, damage or liability among persons having similar risks; (6) A Meeting of Minds of the parties upon all the foregoing essentials.

B. SUBJECT MATTER The insured must have an insurable interest in the subject matter of the insurance contract or else, it shall be void [Sec. 25] Insurable interest is the interest which the law requires the owner of an insurance policy to have in the person or thing insured. Insurable interest is not required in industrial life insurance. [Sec. 235-237]

C. CAUSE AND RISK OF LOSS OR DAMAGE Cause refers to an event or peril insured against. Peril is the contingent or unknown event which may cause a loss. Its existence creates a risk and its occurrence results in loss. The event or peril insured against must be such that its happening will: (1) Damnify or cause loss to a person having insurable interest; or (2) Create liability against him. [Sec. 3]

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D. CONSIDERATION An insurance premium is the agreed price for assuming and carrying the risk. It is the consideration paid to the insurer for undertaking to indemnify the insured against a designated peril. It is based on probability of loss and extent of liability. [43 Am. Jur. 2d 326] Premiums are different from assessments. An assessment, in insurance law, is a sum specifically levied by mutual insurance companies or associations, upon a fixed and definite plan, to pay losses and expenses. [Sec. 403] While premiums are levied and paid to meet anticipated loss, assessments are collected to meet actual loss. [Vance on Insurance (1951)]

E. RISK-DISTRIBUTING SCHEME Insurance contracts serve to distribute the risk of economic loss, damage or liability among as many as possible of those who are subject to the same kind of risk. The payment of premiums by all will inure to a general fund, out of which payment will be made for anyone who has suffered an economic loss. Hence, each member contributes to a small degree toward compensation for losses suffered by any member of the group. The unknown event may be past or future. Even if the proximate cause of the loss is a fortuitous event, the insurer may still be liable if it is the event or peril insured against [De Leon (2014)]

F. MEETING OF THE MINDS The two parties to a contract of insurance whose minds need to meet regarding the essential elements are: The insurer or the party who assumes or accepts the risk of loss and undertakes for consideration to indemnify the insured or to pay a certain lump sum on the happening of the event or peril insured against, and The insured or the person in whose favor the contract is operative and whose loss is the occasion for the payment of the insurance proceeds by the insurer. [De Leon (2014)]

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The insured is not always the person whom the proceeds are paid. Such person is the beneficiary. [Vance (1951)]

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Exceptions: Insurance contracts particularly liability insurance, may be required by law in certain instances: (1) For motor vehicles [Compulsory Motor Vehicle Liability Insurance, Secs 386-402, Insurance Code);

III. Characteristics of an Insurance Contract

(2) For employees [Compulsory Coverage in State Insurance Fund, Articles 168184, Labor Code]; (3) As a condition to granting a license to conduct business or calling affecting the public safety or welfare [De Leon (2014)].

A. IN GENERAL An insurance contract is: (1) Consensual;

(4) Social Insurance for members of the Government Service Insurance System (GSIS) and for the employees of the private Sector covered by the Social Security System (SSS).

(2) Voluntary; (3) Aleatory; (4) Executory and synallagmatic;

unilateral,

but

(5) Conditional;

D. ALEATORY

(6) Contract of indemnity; (7) Contract of adhesion; (8) Personal contract; (9) Property; (10) Uberrimae fides contract (a contract of the highest degree of good faith).

It is aleatory because it depends upon some contingent event. The obligation of the insurer to pay depends on the happening of an event which is uncertain, or though certain, is to occur at an indeterminate time [Article 2010, Civil Code].

E. EXECUTORY AND UNILATERAL BUT SYNALLAGMATIC

B. CONSENSUAL It is perfected by the meeting of the minds of the parties. There must be concurrence of offer and acceptance. Unless otherwise stipulated, the policy is not essential to the existence of the contract. It merely evidences the terms and conditions thereof [Campos, Insurance (1983)]

C. VOLUNTARY General rule: In general, contracts of Insurance are not compulsory and the parties are free to incorporate such terms and conditions they may deem convenient provided they are not contrary to law, morals, good customs, public order, or public policy. [De Leon (2014)]

Once the insured pays the premium, the contract already takes effect. After the payment of premiums, the insurance imposes a unilateral obligation on the insurer who promise to indemnify in case of loss. It is also synallagmatic and reciprocal such that even if the contingent event or designated peril does not occur, the insurer has still provided protection against the risk for the period covered by the insurance contract.

F. CONDITIONAL It is conditional because the insurer incurs liabilityonly upon the happening of the event insured against. However, many other conditions are usually required (such as payments of premium or performance of

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other act) as precedent to the right of the insured to claim benefit under the insurance.

G. CONTRACT OF INDEMNITY (FOR NON-LIFE INSURANCE) The insured who has insurable interest over the property is only entitled to recover the amount of actual loss sustained. The burden is upon him to establish the amount of such loss. General rule: Only non-life insurance or property insurance contracts are contracts of indemnity. Life insurance contracts are not contracts of indemnity because the value of a life is immeasurable. Exception: Where the basis of the insurable interest of the policy owner on the life of the insured is a commercial relationship (e.g., creditor-debtor, mortgagor/guarantormortgagee, supporter and supportee), then such contract is an indemnity contract.

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J. PROPERTY (FOR LIFE INSURANCE) Life insurance policies, unlike property insurance, are generally assignable or transferrable (Sec. 81) as they are in the nature of property.

K. UBERRIMAE FIDES CONTRACT Each party is required to deal with each other in utmost good faith and disclose conditions affecting the risk, of which he is aware, or any material fact which the applicant knows and those which he ought to know. Violation of this duty gives the aggrieved party the right to rescind the contract. Where the aggrieved party is the insured, the bad faith of the insurer will preclude it from denying liability on the policy based on breach of warranty [Campos (1983)].

H. CONTRACT OF ADHESION (FINE PRINT RULE) Insurance contracts are already presented to the insured in its printed form on a “take it or leave it” basis. The insured merely has to agree to its terms. Such contracts of adhesion are valid. However, ambiguity in such contracts shall be interpreted liberally in favor of the insured and strictly against the insurer who prepared the same.

I. PERSONAL CONTRACT The contract of insurance is basically between the insurer and the insured. The insured cannot assign, before the happening of the loss, his rights under a property policy to others without the consent of the insurer (Secs 20, 58, and 83). Property insurance is personal in the sense that it is the damage to the personal interest not the property that is being reimbursed.

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IV. Classes of Insurance

(d) Bridges, tunnels and other instrumentalities of transportation and communication (excluding buildings, their furniture and furnishings, fixed contents and supplies held in storage); piers, wharves, docks and slips, and other aids to navigation and transportation, including dry docks and marine railways, dams and appurtenant facilities for the control of waterways.

A. MARINE INSURANCE A.1. DEFINITION Marine insurance is a type of transportation insurance which is concerned with the perils of property in, or incidental to, transit as opposed to property perils at a generally fixed location. Sec. 101. Marine insurance includes: (1) Insurance against loss of or damage to: (a) Vessels, craft, aircraft, vehicles, goods, freights, cargoes, merchandise, effects, disbursements, profits, moneys, Securities, choses in action, instruments of debts, valuable papers, bottomry, and respondentia interests and all other kinds of property and interests therein, in respect to, appertaining to or in connection with any and all risks or perils of navigation, transit or transportation, or while being assembled, packed, crated, baled, compressed or similarly prepared for shipment or while awaiting shipment, or during any delays, storage, transhipment, or reshipment incident thereto, including war risks, marine builder’s risks, and all personal property floater risks; (b) Person or property in connection with or appertaining to a marine, inland marine, transit or transportation insurance, including liability for loss of or damage arising out of or in connection with the construction, repair, operation, maintenance or use of the subject matter of such insurance (but not including life insurance or surety bonds nor insurance against loss by reason of bodily injury to any person arising out of ownership, maintenance, or use of automobiles); (c) Precious stones, jewels, jewelry, precious metals, whether in course of transportation or otherwise; and

(2) Marine protection and indemnity insurance, meaning insurance against, or against legal liability of the insured for loss, damage, or expense incident to ownership, operation, chartering, maintenance, use, repair, or construction of any vessel, craft or instrumentality in use of ocean or inland waterways, including liability of the insured for personal injury, illness or death or for loss of or damage to the property of another person

A.2. DIVISIONS Marine insurance has two major divisions: (1) Ocean marine insurance insures against risk connected with navigation, to which a ship, cargo, freightage, profits or other insurable interest in movable property, may be exposed during a certain voyage or a fixed period of time. Its scope includes: (a) Ships or hulls; (b) Goods or cargoes; (c) Earnings such as freight, passage money, commissions, or profits; and (d) Liability (protection and indemnity insurance). (2) Inland marine insurance covers the land or over the land transportation perils of property shipped by railroads, motor trucks, airplanes, and other means of transportation. Italso covers risks of lake, river or other inland waterway transportation and other waterborne perils outside those covered by ocean marine insurance.

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A.3. BOTTOMRY AND RESPONDENTIA DISTINGUISHED A Bottomry loan is a loan that is obtained for the value of the vessel on a voyage and the lender is repaid only if the vessel subject of the loan arrives safely at its destination. The insurable interest of a ship owner on its bottomed boat is the difference between the amount of the loan and the value of the boat. Thus, if the amount of the loan does not cover the total value of the boat, the owner can still insure the boat.

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without the consent of the owner, and to the prejudice of his interest (e.g., burning the ship, unlawfully selling the cargo). No honest error of judgment or mere negligence, unless criminally gross, can be considered as barratry [Roque v. IAC, (1985)] Exception: The exception to a “perils of the sea” condition for insurer liability is when there is an “all-risk policy” [Malayan Insurance Corp v. CA, G.R. No. 119599 (1997)] A.4.B. PERILS OF THE SHIP

A Respondentia loan is a loan that is obtained as Security for the value of the cargo to be transported and the lender is repaid only if the cargo arrives safely at its destination.

Perils of the ship are those which cause a loss which in the ordinary course of events, results:

A.4. RISKS

(2) From ordinary wear and tear of the ship; and

A.4.A. PERILS OF THE SEA Ocean marine insurance protects ships at sea and the cargo or freight on such ships from standard “perils of the sea” or “perils of navigation” which includes casualties arising from the violent action of the elements and does not cover ordinary wear and tear or other damage usually incident to the voyage. The mere fact that an injury is due to violence of some marine force does not necessarily bring it within the protection of the policy if such violence was not unusual or unexpected. General Rule: The term perils of the sea extends only to losses caused by sea damage, or by the violence of the elements, and does not embrace all losses happening at sea. They insure against losses from extraordinary occurrences only. It thus includes only such losses as are of extraordinary nature or arise from some overwhelming power which cannot be guarded against by the ordinary exertion of human skill or prudence, as distinguished from the ordinary wear and tear of the voyage and from injuries suffered by the vessel in consequence of her not being unseaworthy [Roque v. IAC, G.R. No. L-66935, (1985)] The phrase also extends to barratry which refers to the willful and intentional act on the part of the master or the crew, in pursuance of some unlawful or fraudulent purpose,

(1) From the ordinary, natural and inevitable action of the sea;

(3) From the negligent failure of the ship’s owner to provide the vessel with the proper equipment to convey the cargo under ordinary conditions. [De Leon (2014)] A.4.C. RULE ON RISKS COVERED General Rule: In the absence of stipulation, the risks insured against are only perils of the sea [Go Tiaco y Hermanos v. Union Ins. Society of Canton, G.R. No. 13983(1919)] Exception: However, in an all risk policy, all risks are covered unless expressly excepted. The burden rests on the insurer to prove that the loss is caused by a risk that is excluded [Filipino Merchants Ins. Co. v. CA, G.R. No. 85141(1989)] A.5. LOSS Loss may be total or partial. Total loss may be actual or constructive. Sec. 132. An actual total loss is caused by: (a) A total destruction of the thing insured; (b) The irretrievable loss of the thing by sinking, or by being broken up;

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(c) Any damage to the thing which renders it valueless to the owner for the purpose for which he held it; (d) Any other event which effectively deprives the owner of the possession, at the port of destination of the thing insured. Sec. 133. A constructive total loss is one which gives to a person insured a right to abandon, under Sec. 141. Sec. 134. An actual loss may be presumed from the continued absence of a ship without being heard of. The length of time which is sufficient to raise this presumption depends on the circumstances of the case. Sec. 141. A person insured by a contract of marine insurance may abandon the thing insured, or any particular portion thereof separately valued by the policy, or otherwise separately insured, and recover for a total loss thereof, when the cause of the loss is a peril insured against: (1) If more than three-fourths thereof in value is actually lost, or would have to be expended to recover it from the peril; (2) If it is injured to such an extent as to reduce its value more than three-fourths; (3) If the thing insured is a ship, and the contemplated voyage cannot be lawfully performed without incurring either an expense to the insured of more than three-fourths the value of the thing abandoned or a risk which a prudent man would not take under the circumstances; or (4) If the thing insured, being cargo or freightage, and the voyage cannot be performed, nor another ship procured by the master, within a reasonable time and with reasonable diligence, to forward the cargo, without incurring either an expense to the insured of more than three-fourths the value of the thin abandoned or a risk which a prudent man would not take under the circumstances. But freightage cannot in any case be abandoned unless the ship is also

abandoned.

Actual total loss exists when the subject matter of the insurance is wholly destroyed or lost or when it is so damaged as no longer to exist in its original character. [Vance (1951)] Constructive total loss or “technical total loss” is one in which the loss, although not actually total, is of such character that the insured is entitled, if he thinks fit, to treat it as total by abandonment. [45 CJS 1150] As to when a constructive total loss exists, three rules exist: (1) English rule: there is constructive total loss when the subject matter of the insurance, while still existent in specie, is so damaged as not to be worth, when repaired, the cost of the repairs; (2) American rule: there is constructive total loss when it is so damaged that the costs of repairs would exceed one-half of the value of the thing as acquired; also known as the “fifty percent rule;” (3) Philippine rule: the insured may not abandon the thing insured unless the loss or damage is more than three-fourths of its value. [De Leon (2014)] A.6. ABANDONMENT A.6.A. DEFINITION Sec. 140. Abandonment, in marine insurance, is the act of the insured by which, after a constructive total loss, he declares the relinquishment to the insurer of his interest in the thing insured.

A.6.B. CONDITIONS Aside from the requirement under Sec 141 already mentioned: (1) An abandonment must be neither partial nor conditional [Sec 142]; (2) An abandonment must be made within a reasonable time after receipt of reliable information of the loss, but where the information is of a doubtful character, the

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insured is entitled to a reasonable time to make inquiry [Sec 142]; (3) Abandonment is made by giving notice thereof to the insurer, which may be done orally, or in writing: Provided, That if the notice be done orally, a written notice of such abandonment shall be submitted within seven days from such oral notice [Sec 145]; (4) Abandonment must be absolute and total. No notice of abandonment is required for recovery of loss in cases of actual total loss. Where the information upon which an abandonment has been made proves incorrect, or the thing insured was so far restored when the abandonment was made that there was in fact no total loss, the abandonment becomes ineffectual. A.6.C. CHARACTERISTICS A valid abandonment has the following characteristics: (1) There must be an actual relinquishment by the person insured of his interest in the thing insured; (2) There must be a constructive total loss; (3) The abandonment be neither partial nor conditional [Sec. 142]; (4) It must be made within a reasonable time after receipt of reliable information of the loss [Sec. 143]; (5) It must be factual [Sec. 144]; (6) It must be made by giving notice thereof to the insurer which may be done orally or in writing [Sec. 145]; and (7) The notice of abandonment must be explicit and must specify the particular cause of the abandonment [Sec. 146].

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(2) If a marine insurer pays for a loss as if it were an actual total loss, he is entitled to whatever may remain of the thing insured, or its proceeds or salvage, as if there had been a formal abandonment [Sec 149]; (3) Upon an abandonment, acts done in good faith by those who were agents of the insured in respect to the thing insured, subsequent to the loss, are at the risk of the insurer, and for his benefit [Sec 150]. A.7. AVERAGE An Average is defined as the extraordinary or accidental expense incurred during the voyage for the preservation of the vessel, cargo or both and all the damages to the vessel and cargo from the time it is loaded and the voyage commenced until it ends and the cargo is unloaded. [Art. 806, Code of Commerce] There are two kinds of averages: (1)

Gross or general averages; and

(2) Simple or particular averages. Gross averages include damages and expenses which are deliberately caused by the master of the vessel or upon his authority, in order to save the vessel, her cargo, or both at the same time from a real and known risk. [Art. 811, Code of Commerce] This must be borne equally by all of the interests concerned in the venture. To claim general average contributions, the requisites are: (1) There must be a common danger to the vessel or cargo; (2) Part of the vessel or cargo was sacrificed deliberately; (3) The sacrifice must be for the common safety or for the benefit of all;

A.6.D. EFFECTS (1) An abandonment is equivalent to a transfer by the insured of his interest to the insurer, with all the chances of recovery and indemnity [Sec 148];

(4) It must be made by the master or upon his authority; (5) It must not be caused by any fault of the party asking contribution;

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(6) It must be successful (i.e., resulted in the saving of the vessel and/or cargo)

Deviation is proper: (a) When caused by circumstances over which neither the master nor the owner of the ship has any control;

(7) It must be necessary. [Vance (1951), Magsaysay v Agan, G.R. No. L-6393 (1955), Intl. Harvester v HamburgAmerican Line, G.R. No. L-11515 (1918)]

(b) When necessary to comply with a warranty, or to avoid a peril, whether or not the peril is insured against;

Particular averages include damages and expenses caused to the vessel or her cargo, which have not inured to the common benefit and profit of all the persons interested in the vessel and her cargo. [Art. 809, Code of Commerce] A particular average loss is suffered by and borne alone by the owner of the cargo or of the vessel, as the case must be.[De Leon (2014)] A.8. WARRANTIES Marine Insurance is unique in that it has certain implied warranties (1) Implied Warranty of Seaworthiness. - In every marine insurance upon a ship or freight, or freightage, or upon any thing which is the subject of marine insurance, a warranty is implied that the ship is seaworthy. [Sec. 115]

(c) When made in good faith, and upon reasonable grounds of belief in its necessity to avoid a peril; or (e) When made in good faith, for the purpose of saving human life or relieving another vessel in distress [Sec. 126] (3) Implied Warranty of Proper documentation - Where the nationality or neutrality of a ship or cargo is expressly warranted, it is implied that the ship will carry the requisite documents to show such nationality or neutrality and that it will not carry any documents which cast reasonable suspicion thereon [Sec. 122]

B. FIRE INSURANCE

A vessel is seaworthy if: (a) It is proper laden

B.1. DEFINITION

(b) It is provided with a competent master

Sec. 169. Fire insurance includes insurance against loss by fire, lightning, windstorm, tornado or earthquake and other allied risks, when such risks are covered by extension to fire insurance policies or under separate policies.

(c) It is provided with a sufficient number of competent officers and seamen (d) It is provided with the requisite appurtenances and equipment [Sec.118] Where different portions of the voyage contemplated by a policy differ in respect to the things requisite to make the ship seaworthy therefor, a warranty of seaworthiness is complied with if, at the commencement of each portion, the ship is seaworthy with reference to that portion [Sec. 119] (2) Implied Warranty Against Improper deviation – A Deviation is a departure from the course of the voyage insured, or an unreasonable delay in pursuing the voyage or the commencement of an entirely different voyage [Sec.125]

A fire insurance is a contract of indemnity by which the insurer, for a stipulated premium, agrees to indemnify the insured against loss of, or damage to, a property caused by hostile fire. Fire or other so-called “allied risks” enumerated in Sec. 169 must be the proximate cause of the damage or loss. Fire is oxidation which is so rapid as to produce either a flame or a glow. Spontaneous combustion is usually rapid oxidation. Fire is always caused by combustion, but combustion does not always

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cause fire. [Western Woolen Mills Co. v Northern Assurance Co., 139 Fed 637 (1905)] The presence of heat, steam, or even smoke is evidence of fire, but taken by itself will not prove the existence of fire. Fire cannot be considered a natural disaster or calamity since it almost always arises from some acts of man or by human means. It cannot be an act of God unless caused by lightning or a natural disaster or casualty not attributable to human agency [Phil. Home Assurance Corp. v. CA, G.R. No. 106999 (1996)] B.2. RISKS A Hostile fire is one that escapes from the place where it was intended to burn and ought to be, or one which remains completely within its proper place but because of the unsuitable materials used to light it, becomes inherently dangerous and uncontrollable. This kind of fire will make the insurer liable.[De Leon (2014)] A Friendly fire is one that burns in a place where it is intended to burn and ought to be like fire burning in a stove or a lamp. [De Leon (2014)] Rule: The risk assumed by the insurer is the loss and damage caused by hostile fire and not friendly fire. B.3. ALTERATIONS IN USE OR CONDITION Sec. 170. An alteration in the use or condition of a thing insured from that to which it is limited by the policy made without the consent of the insurer, by means within the control of the insured, and increasing the risks, entitles an insurer to rescind a contract of fire insurance Sec. 171. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance. Sec. 172. A contract of fire insurance is no

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affected by any act of the insured subsequent to the execution of the policy, which does not violate its provisions, even though it increases the risk and is the cause of the loss.

Thus, in order that the insurer may rescind a contract of fire insurance for any alteration made in the use or condition of the thing insured, the following requisites must be present: (1) The use or condition of the thing is specifically limited or stipulated in the policy; (2) Such use or condition as limited by the policy is altered; (3) The alteration is made without the consent of the insurer; (4) The alteration is made by means within the control of the insured; and (5) The alteration increased the risk. [De Leon (2014)] Every contract of insurance is made with reference to the conditions surrounding the subject matter of the risk [25 CJS 129]. Thus, there is an implied promise or undertaking on the part of the insured that he will not change the premises or the character of the business carried there so as to increase the risk of loss by fire [44 AmJur 2d 138]. The rule on alteration was strictly applied in the case of Malayan Insurance Co, Ltd v. Pap Co, Ltd [G.R. No. 200784 (2013)]: The court held that transferring machinery to another location, despite a provision in the policy stating that the machine cannot be transferred without the consent of the insurer is considered an alteration in the condition and location of the thing insured. Hence, Malayan was not liable to Pap. B.4. MEASURE OF INDEMNITY (1) In an open policy, only the expense necessary to replace the thing lost or injured in the condition it was at the time of the injury will be paid;

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(2) In a valued policy, the parties are bound by the valuation, in the absence of fraud or mistake, similar to marine insurance. [Sec. 173] If there is a valuation, the effect shall be similar to a marine insurance policy wherein the valuation is conclusive between the parties in adjusting the loss [Sec. 158] In the absence of express valuation in a fire insurance policy, the insured is only entitled to recover the amount of actual loss sustained and the burden of proof is upon him to establish the amount of such loss by preponderance of evidence. Where the face value of the policy is less than the agreed valuation, then even in case of total loss, the insured can only recover up to the policy’s face value, which is always the maximum limit of the insurer’s liability [Tan Chuco v. Yorkshire Fire & Life Ins. Co.G.R. No. L-5069(1909)] In an open policy, the actual loss, as determined, will represent the total indemnity due the insured except only that the total indemnity shall not exceed the total value of the policy [Devt. Ins. Corp. v. IAC, G.R. No. 71360 (1986)]

C. CASUALTY INSURANCE C.1. DEFINITION Sec. 176. Casualty insurance is insurance covering loss or liability arising from accident or mishap, excluding certain types of loss which by law or custom are considered as falling exclusively within the scope of other types of insurance such as fire or marine. It includes, but is not limited to, employer’s liability insurance, motor vehicle liability insurance, plate glass insurance, burglary and theft insurance, personal accident and health insurance as written by non-life insurance companies, and other substantially similar kinds of insurance.

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marine, suretyship and life. It includes, but is not limited to, employer’s liability insurance, workmen’s compensation insurance, public liability insurance, motor vehicle liability insurance, plate glass insurance, burglary and theft insurance, personal accident and health insurance as written by non-life insurance companies, and other substantially similar kinds of insurance (e.g., robbery and theft insurance). It is governed by the general provisions applicable to all types of insurance plus stipulations in the insurance contract [Fortune Insurance & Surety Co v. CA G.R. No. 115278 (1995)] C.2. INTENTIONAL AND INJURY DISTINGUISHED

ACCIDENTAL

“Intentional” implies the exercise of the reasoning faculties, consciousness and volition. Where a provision of the policy excludes intentional injury, it is the intention of the person inflicting the injury that is controlling. If the injuries suffered by the insured clearly resulted from the intentional act of the third person, the insurer is relieved from liability as stipulated. “Accidental” means that which happens by chance or fortuitously, without intention or design, which is unexpected, unusual and unforeseen. The terms do not, without qualification, exclude events resulting in damage due to fault, recklessness or negligence of third parties. The concept is not necessarily synonymous with “no fault.” It may be utilized simply to distinguish intentional or malicious acts from negligent or careless acts of man. C.3. DIVISIONS Casualty insurance has two general divisions: liability and indemnity insurance. C.3.A. LIABILITY INSURANCE

Casualty insurance includes all forms of insurance against loss or liability arising from accident or mishap excluding certain types of loss or liability which are not within the scope of other types of insurance such as fire,

Under policies of this type, the insurer assumes the obligation to pay the third party in whose favor the liability of the insured arises. The liability of the insurer attaches as soon as the liability of the insured to the third

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party is established. It covers liability incurred from quasi-delict or criminal negligence but cannot cover deliberate criminal acts. [De Leon (2014)] C.3.B. INDEMNITY INSURANCE Under this kind of insurance, no action will lie against the insurer unless brought by the insured for loss actually sustained and paid by him. Liability of the insurer attaches only after the insured has paid his liability to the third party. [De Leon (2014)] C.4. NO ACTION CLAUSE A no action clause is a requirement in a policy of liability insurance which provides that a suit must first be instituted and a final judgment be first obtained against the insured; that only thereafter can the person injured recover on the policy [Guingon v. Del Monte, G.R. No. L-22042(1967)] But, the no-action clause cannot prevail over the Rules of Court provisions which are aimed at avoiding multiplicity of suits. Parties (the insured and the insurer) may be joined as defendants in a case commenced by the third party claiming under a liability insurance, as the right to relief in respect to the same transactions is alleged to exist [See Sec 5, Rule 2 and Sec 6, Rule 3, 1997 Rules of Civil Procedure]

D. SURETYSHIP Sec. 177. A contract of suretyship is an agreement whereby a party called the surety guarantees the performance by another party called the principal or obligor of an obligation or undertaking in favor of a third party called the obligee. It includes official recognizances, stipulations, bonds or undertakings issued by any company by virtue of and under the provisions of Act. No 536, as amended by 2206.

A suretyship is an agreement whereby a surety guarantees the performance or undertakes to answer, under specified terms and conditions, for the debt, default or

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miscarriage of the principal or obligor, such as failure to perform, or breach of trust, negligence and the like, in favor of a third party. It shall be deemed as insurance contract if the surety’s main business is that of suretyship, and not where the contract is merely incidental to any other legitimate business or activity of the surety. The contract of a surety is evidenced by a document called “surety bond” which is essentially a promise to guarantee the obligation of the obligor. In turn, the obligor executes an “indemnity agreement” in favor of the insurer. [De Leon (2014)] It is an accessory contract unlike a contract of insurance which is the principal contract itself. The liability of the surety or sureties under a bond is joint and several, or solidary[Sec. 178]. This means that upon the default of the principal obligor, the surety becomes primarily liable. Unlike a guarantor, a surety is not entitled to the benefit of exhaustion of the principal obligor’s assets and assumes a regular party to the undertaking. It is limited or fixed to the amount of the bond. What is unique to a contract of suretyship is that when the obligee accepts the bond, the bond becomes valid and enforceable whether or not the premium has been paid by the obligor unlike in an insurance contract where payment of premium is necessary for the contract to be valid. If the obligee has not yet accepted, then payment of premium is still necessary for the contract of suretyship to be valid.

E. LIFE INSURANCE E.1. DEFINITION Sec. 181. Life insurance is insurance on human lives and insurance appertaining thereto or connected therewith. Every contract or undertaking for the payment of annuities including contracts for the payment of lump sums under a retirement program where a life insurance company manages or acts as a trustee for such retirement program shall be considered

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a life insurance contract for purposes of the Insurance Code. Sec. 182. An insurance upon life may be made payable on the death of the person, or on his surviving a specified period, or otherwise contingently on the continuance or cessation of life. Every contract or pledge for the payment of endowments or annuities shall be considered a life insurance contract for purposes of the Insurance Code.

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E.2.C. INDUSTRIAL LIFE Sec. 235. The term Industrial life insurance as used in this code shall mean that form of life insurance under which the premiums are payable either monthly or oftener, if the face amount of insurance provided in any policy is not more than 500 times that of the current statutory minimum daily wage in the City of Manila, and if the words industrial policy are printed upon the policy as part of the descriptive matter.

Industrial life insurance refers to an insurance policy which provides insurance coverage to industrial workers or people who are unable to afford insurance for bigger amounts.

E.2. TYPES E.2.A. INDIVIDUAL LIFE Insurance on human lives and insurance appertaining thereto or connected therewith. It may be made payable on the death of the person, or after his surviving a specified period (as an annuity or endowment), or otherwise contingently on the continuation or cessation of life.

Unlike an ordinary life insurance policy, this kind of insurance shall not lapse after nonpayment of premiums in 3 months after the expiration of the grace period, if such nonpayment is due to the failure of the company to send its representatives to the insured to collect premium. (Sec. 235 & Carale [2014]) E.2.D. M ICROINSURANCE

E.2.B. GROUP LIFE It is a blanket policy covering a number of individuals who are usually a cohesive group (e.g., employees of a company) and subjected to a common risk. No medical examination is usually required of each person insured (in contrast to individual life insurance). Group insurance is a single insurance contract that provides coverage for many individuals. The employer-policy holder is the agent of the insurer in collecting the premium. [Pineda v. CA, G.R. No. 105562 (1993)] Typically, the policy owner is an employer and the policy covers the employees or members of the group, with one master contract kept by the employer. Where the employee is required to pay a portion of the premium, the arrangement is called a “contributory plan”, wherein his share is deducted from his wages [Carale (2014)]

Sec. 187. Microinsurance is a financial product or service that meets the risk protection needs of the poor, where: The amount of contributions, premiums, fees or charges, computed on a daily basis, does not exceed 7.5% of the current daily minimum wage rate for nonagricultural workers in Metro Manila; and The maximum sum of guaranteed benefits is not more than 1,000 times of the said current daily minimum wage rate. Sec. 188. No insurance company or mutual benefit association shall engage in the business of Microinsurance unless it possesses all the requirements as may be prescribed by the Commissioner, who shall issue such rules and regulations governing microinsurance.

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policy if he outlives the designated period. If he dies within said period, the insurer pays the proceeds to the beneficiary. This is a combination of term policy and pure endowment policy.

(1) Ordinary or whole life policy, where the insurer agrees to pay the face value of the policy upon the death of the insured; Distinct variations of Whole Life Policy: (A) Ordinary Life Insurance – Premiums are paid throughout the lifetime of the person insured or until the person reaches a predetermined specified age at which point the coverage continues without the payment of additional premiums. (B) Limited Payment Life Insurance – Premiums are paid only during a specified number of years or until a specified event occurs. (C) Single Premium Life Insurance – the coverage is acquired by the payment of a single premium. (D) Joint Life Insurance – coverage is payable upon the first death among two or more insured (normally purchased by business partners or spouse) and paid to the survivor. (E) Universal Life Insurance – emphasizes the separation of the portion of the premium that is used to cover the insurance protection from the portion of the premium allocated to an investment. (F) Variable Life Insurance – some amount of death benefit provided by a variable life insurance policy is guaranteed by the insurer, but the total death benefit and the cash value of the insurance before death depend on the investment performance of that portion of the premium which is allocated to a separate fund. (G) Pure endowment policy –where theinsurer pays the insured if the insured survives a specified period. If the insured dies within the period, the insurer is released from liability and unless the contract otherwise provides, need not reimburse any part of the premiums paid;

(2) Term Life Insurance,which provides for the payment of a specified amount if death occurs within the time period designated in the policy, usually for periods of one to five years. (3) Modified Life Insurance, which is a policy that combines terms and whole life insurance into a single insurance policy. Premiums paid by the insured are substantially less during the first few years then later on increases during the remaining term of the policy. (4) Group Life Insurance, which is a type of life insurance in which a single contract covers an entire group of people. [Carale(2014)] E.4. RISKS E.4.A. DEATH OR SURVIVAL Life insurance may be made payable on the death of the person, or on his surviving a specified period, or otherwise contingently on the continuation or cessation of life [Campos (1983)] Death of the insured must be proven by the beneficiary before the insurer can be made to pay. E.4.B. SUICIDE Insurer is liable in any of the following cases: (1) If committed after two years from the date of the policy’s issue or its last reinstatement. Unless the policy provides for a shorter period. Any stipulation extending the 2-year period is void; (2) If committed in a state of insanity regardless of the date of the commission unless suicide is an excepted peril;[Sec. 183]

(H) Endowment policy – where the insured is paid the face value of the PAGE 74 OF 320

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Since suicide is contrary to the laws of nature and the ordinary rules of conduct, it is never presumed. The burden of proving lies with the insurer who seeks to avoid liability under a life policy excepting it from coverage [Campos (1983)] E.4.C. DEATH AT THE HANDS OF THE LAW Death at the hands of the law (e.g., legal execution) is one of the risks assumed by the insurer under a life insurance policy in the absence of a valid policy exception [Vance (1951)] E.4.D. KILLING BY THE BENEFICIARY General rule: The interest of a beneficiary in a life insurance policy shall be forfeited when the beneficiary is the principal accomplice or accessory in willfully bringing about the death of the insured. In such event, the other beneficiaries so named shall receive their share and divide among them the forfeited share of the “guilty” beneficiary. In the absence of other beneficiaries, proceeds shall be paid according to the policy contract, and if silent, it shall be paid to the estate of the insured[Sec. 12] Exceptions: (1) Accidental killing; (2) Self-defense; (3) Insanity of the beneficiary at the time he killed the insured; (4) Negligence. Note: Conviction of the beneficiary is necessary before his interest in the insurance policy is forfeited in favor of the others indicated in Sec 12. E.4.D. ACCIDENTAL DEATH The terms “accident” and “accidental means” have yet to acquire a technical meaning. In general they have been taken to mean that they happen by chance or fortuitously, without intention and design and are unexpected, unusual, and unforeseen. Where

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the death or injury is not the natural or probable result of the insured’s voluntary act, or if something unforeseen occurs in the doing of the act which produces the injury, the resulting death is within the protection of the policies insuring against death or injury from accident [Carale(2014)]

F. COMPULSORY MOTOR VEHICLE LIABILITY INSURANCE Sec. 387. It shall be unlawful for any land transportation operator or owner of a motor vehicle to operate the same in the public highways unless there is in force in relation thereto a policy of insurance or guaranty in cash or surety bond issued in accordance with the provisions of this chapter to indemnity the death, bodily injury and/or damage to property of a third-party or passenger, as the case may be, arising from the use thereof.

Compulsory motor vehicle liability insurance is a policy of insurance or guaranty in cash or surety bond to indemnify the death, bodily injury, and/or damage to property of a thirdparty or passenger arising from the use of a motor vehicle. It is a requisite for registration or renewal of registration of a motor vehicle by every land transportation operator or owner [Sec. 390]. It is the only type of compulsory insurance provided for under the Insurance Code. It is a species of compulsory insurance that provides for protection coverage that will answer for legal liability for losses and damages for bodily injuries or property damage that may be sustained by another arising from the use and operation of motor vehicle by its owner. It applies to all vehicles whether public or private vehicles. To the extent that motor vehicle insurance is compulsory, it must be a liability policy, and the provision making it merely an indemnity insurance contract cannot have any effect [Campos (1983)] The insurer’s liability is direct and primary so the insurer need not wait for final judgment in the criminal case to be liable. The purpose

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is to give immediate financial assistance to victims of motor vehicle accidents and/or their dependents, especially if they are poor, regardless of the financial capability of motor vehicle owners or operators responsible for the accident sustained [Shafer v. Judge, RTC Olongapo, G.R. No. 78848 (1988)] The claimants/victims may be a passenger or a third party. The insured may be the party at fault as against claims of third parties (third party liability) or the victim of the contingent event. The following clauses are relevant to compulsory motor vehicle liability insurance: (1) Authorized driver clause is a stipulation in a motor vehicle insurance policy which provides that the driver, other than the insured owner, must be duly licensed to drive the motor vehicle, otherwise the insurer is excused from liability; (2) Theft clause is a stipulation including theft as one of the risks insured against. If there is such a provision and the vehicle was unlawfully taken, the insurer is liable under the theft clause and the authorized driver clause does not apply. The insured can recover even if the thief has no driver’s license. (3) No Fault Clause is a provision required in every compulsory motor vehicle liability insurance regarding claims for death or injury to a passenger or third party on a liability insurance policy covering the vehicle. Any claim for death or injury to any passenger or third party shall be paid without the necessity of proving fault or negligence of any kind, provided the total indemnity in respect of any person shall not exceed P15,000. The claim shall be made against only one motor vehicle. It shall lie against the insurer of the vehicle in which the occupant is riding, and no other. The claimant is not free to choose from which insurer he will claim the no fault indemnity. [Perla Compania de Seguros v. Ancheta, G.R. No. L-49699 (1988)]

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V. Insurable Interest A. IN GENERAL In general, an insurable interest is that interest which a person is deemed to have in the subject matter insured, where he has a relation or connection with or concern in it, such that the person will derive pecuniary benefit or advantage from the preservation of the subject matter insured and will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening of the event insured against. The existence of an insurable interest gives a person the legal right to insure the subject matter of the policy of insurance [Lalican v. Insular Life Ins., G.R. No. 183526 (2009)] An insurable interest is one of the most basic and essential requirements in an insurance contract. As such, it may NOT be waived by stipulation. Absence of insurable interest renders the insurance contract void. [See Sec. 25] The insurable interest need not always be pecuniary in nature (such as by insuring the life of a person) [Lucena v Crawford, 2Bos & PNR 269 (1806)]. Rationale: (1) As a deterrence to the insured. A policy issued to a person without interest is a mere wager policy or contract and is void for illegality. A wager policy is obviously contrary to public interest. [De Leon (2014)] There is a moral hazard in removing insurable interest as a requirement for the validity of an insurance policy – It allows the insured to have an interest in the destruction of the subject matter rather than in its preservation. (2) As a measure of limit of recovery. The insurable interest is the measure of the upper limit of his provable loss under the contract. Sound public policy requires that insurance should not provide the insured means of making a net profit from the happening of the event insured against. [De Leon (2014)]

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A.1. WHEN INSURABLE INTEREST SHOULD EXIST Policy

Insurable interest required Inception

Life or health

P

Property

P

Intervening Occurrence period of loss

P

For Life Insurance:Insurable interest over life/health mustexist at the time of the inception of the contract but may be lost after.[Sec. 19] For Property Insurance: Insurable interest must exist at the time of the inception of the contractand at the occurrence of the loss. But it need not exist during the intervening period or from the time between when the policy takes effect and the loss occurs. The alienation of insured property will not defeat a recovery if the insured has subsequently reacquired the property and possesses an insurable interest at the time of loss [Sec. 19 and Womble v. Dubuque Fire &Marine Ins. Co.310 Mass. 142, 144-145 (1941)] A.2. CHANGE OF INTEREST Change of interest means the absolute transfer of the property insured. General rule:A change of interest in the thing insured does not transfer the policy, but suspends the insurance to an equivalent extent until the interest in the thing and the interest in the insurance policy are vested in the same person. Thus, the contract is not rendered void but is merely suspended [Sec. 20]

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(3) A change in the interest in one or more of several things, separately insured by one policy, such as a conveyance of one or more things, does not affect the policy with respect to the others not so conveyed [Sec. 22]; (4) A change of interest by will or succession on the death of the insured. The death of the insured does not avoid insurance policy. It does not affect the policy except his interest passes to his heir or legal representative who may continue the insurance policy on the property by continuing paying premiums [Sec. 23]; (5) A transfer of interest by one of several partners, joint owners, or owners in common, who are jointly insured, to the others. This does not avoid the insurance. It will avoid the policy only as to the selling partners or co-owners but not as to others. The rule applies even though it has been agreed that the insurance cease upon alienation of the thing [Sec. 24]; (6) Automatic transfers of interest in cases in which the policy is so framed that it will inure to the benefit of whosoever may become the owner of the interest insured during the circumstance of the risk [Sec. 57]. It is an exception to the general rule that upon maturity, the proceeds of a policy shall be given exclusively to the proper interest if the person in whose name or for whose benefit it is made. (7) An express prohibition against alienation in the policy [Article 1306, Civil Code], in which case alienation will not merely suspend the contract but avoid it entirely.

B. IN LIFE/HEALTH INSURANCE Sec. 10.Every person has an insurable interest in the life and health:

Exceptions: (1) Life, health, and accident insurance; (2) A change of interest in the thing insured after the occurrence of an injury which results in a loss does not affect the policy [Sec. 21]; PAGE 77 OF 320

(1) Of himself, of his spouse and of his children; (2) Of any person on whom he depends wholly or in part for education or support, or in whom he has a pecuniary interest; (3) Of

any

person

under

a

legal

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obligation to him for the payment of money, or respecting property or services, of which death or illness might delay or prevent the performance; and (4) Of any person upon whose life any estate or interest vested in him depends.

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whenever the insured has a responsible expectation of deriving benefit from the continuation of the life of the other person or of suffering detriment through its termination. There is no insurable interest in the life of an illegitimate spouse. A creditor may take out insurance on the life of his debtor but his insurable interest is only up to the amount of the debt and only when the debt is unsecured. [Carale (2014)]

Unless the interest of a person insured is susceptible of exact pecuniary measurement, the measure of indemnity under a policy of insurance upon life or health is the sum fixed in the policy. [Sec. 186]

An assignee of the insurance contract is not required to have insurable interest in the life of the insured. To require such interest in him is to diminish the investment value of the contract to the owner.

Life insurance policies may be divided into two general classes:

Note: An assignment of the insurance contract is different from a change in the designated beneficiary.

(1) Insurance upon one’s life; (2) Insurance upon life of another.

B.1.C. BENEFICIARY B.1. IN LIFE INSURANCE

B.1.A. INTEREST IN ONE’S OWN LIFE The Cestui que vie is the insured himself. The insured can designate anyone to be the beneficiary of the policy. Each person has unlimited interest in his own life, whether the insurance is for the benefit of himself or another. [40 CJS 909] The beneficiary designated need not have any interest in the life of the insured when person takes out policy on his own life. But if a person obtains a policy on the life of another and names himself as the beneficiary, he must have insurable interest therein. [De Leon (2014)]

B.1.B. INTEREST ANOTHER

IN

LIFE

A beneficiary is the person named or designated in a contract of life, health, or accident insurance as the person who is to receive the proceeds or benefits which become payable, according to the terms of the contract, if the insured risk occurs. General rule: A person may designate a beneficiary, irrespective of the beneficiary’s lack of insurable interest, provided he acts in good faith and without intent to make the transaction merely a cover for a forbidden wagering contract [De Leon (2014)] Exceptions:Any person who is forbidden from receiving any donation under Article 739, Civil Code cannot be named beneficiary of a life insurance policy by the person who cannot make any donation to him. [Article 2012, Civil Code]

OF

In life insurance, unless based on commercial relationship, the policy owner does not necessarily have “pecuniary interest” on the life of the cestui que vie. A mere relationship is a sufficient interest to be insured.

Sec. 739, Civil Code: The following donations are void:

The insurable interest must be based on moral and legal grounds. Such interest exists

(2) Those made between persons found guilty of the same criminal offense, in

(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;

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consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

General Rule: The insured shall have the right to change the beneficiary he designated in the policy [Sec. 11] Exception: If the insured expressly waived his right to change the beneficiary, this makes the latter an irrevocable beneficiary. But despite the waiver, he can still change the beneficiary, provided he obtained the beneficiary’s consent. [Sec. 11]

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There is no right of subrogation in life insurance, because it is not a contract of indemnity.

C. IN PROPERTY INSURANCE Sec. 13. Every interest in property, whether real or personal, or any relation thereto, or liability in respect thereof, of such nature that a contemplated peril might directly damnify the insured, is an insurable interest. Sec. 14. An insurable interest in property may consist in: (1) An existing interest;

Under the Slayer Statute, when the beneficiary is the principal, accomplice or accessory in willfully bringing about the death of the insured, interest of beneficiary in life insurance policy is forfeited [Sec. 12]

(2) An inchoate interest founded on an existing interest; or (3) An expectancy, coupled with an existing interest in that out of which the expectancy arises.

B.2. INTEREST IN HEALTH INSURANCE General rule: Interest in the life or health of a person must exist at the inception of the insurance contract but need not exist thereafter or when the loss occurs. [Sec. 19] Exceptions: (1) In the case of a creditor’s insurance taken on the life of the debtor, insurable interest disappears once the debt has been paid. At this point, the creditor/insured can no longer recover on the policy;

A person has an insurable interest in property when he sustains such relation with respect to it that he has a reasonable expectation of benefit to be derived from its continued existence, or of loss or liability from its destruction [Carale, (2014)] The insurable interest may be in the property itself (e.g., ownership), or any relation thereto (e.g., interest of a trustee or a commission agent), or liability in respect thereof (e.g., interest of a carrier or depository of goods).

(2) In the case of a company’s insurance taken on the life of an employee, insurable interest disappears once the employee leaves the company, in which case, the company can no longer recover on the policy.

(1) An existing interest - may be a legal title or equitable title. Examples of those having existing interest are owners as regards their properties, trustees in the case of the seller of property not yet delivered, mortgagors over the property mortgaged, and lessor, lessee and sublessee over the property leased.

B.3. TRANSFER OF POLICY

(2) An inchoate interest must be founded on existing interests. It exists but is incomplete or unripe until the happening of an event. Examples of inchoate interests are the interest of stockholders with respect to dividends in case of profits and shares in the assets, and the interest

The life insurance policy can be transferred whether the transferee has insurable interest or not. Notice of the transfer to the insurer is not required for the validity of the same. [Sec. 184 and 185]

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of a partner in the properties belonging to the partnership.

by one policy. This does not avoid the insurance as to the others [Sec. 22];

(3) An expectancy must be coupled with an existing interest out of which the expectancy arises. For example, a farmer who planted crops has insurable interest over his harvest which can be expected. [De Leon (2014)]

(3) A change in interest by will or succession upon the death of the insured [Sec. 23]

A mere contingent or expectant interest in anything, not founded on an actual right to the thing, nor upon any valid contract for it, is not insurable. [German Insurance v. Hyman, 34 Neb. 704, 52 N.W. 401 (1982)] A son has no insurable interest over the property of his father because such is just a mere expectancy and has no legal basis before he inherits such property. Insurable interest in property may be based on a perfected contract of sale, vesting an equitable title even before delivery of the goods. [Filipino Merchants Ins. Co. v. CA, (1989)] When the seller retains ownership only to ensure that the buyer will pay its debt, the risk of loss is borne by the buyer. Insurable interest in property does not imply a property interest in, or a lien upon, or possession of the subject matter of the insurance, and neither ownership nor a beneficial interest is requisite to the existence of such an interest. Anyone has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction [Gaisano Cagayan Ins. v. Ins. Co. of North America, G.R. No. 14379(2006)]

(4) A transfer of interest by one of several partners, joint owners, or owners in common who are jointly insured. The acquiring co-owner has the same interest; his interest merely increases upon acquiring other co-owners interest (Sec. 24). C.2. TRANSFER OF POLICY The policy cannot be transferred without the insurer’s consent, because the insurer has approved the policy based on the personal qualifications and insurable interest of the insured. When there is an express prohibition against alienation in the policy, and there is alienation, the contract of insurance is not merely suspended but avoided. C.3. MEASURE OF INDEMNITY Being a contract of indemnity, the measure of insurable interest in property is the extent to which the insured might be damnified by the loss of injury thereof. [Sec. 17] The insured cannot recover a greater value than that of his actual loss because it would be a wagering policy contrary to public policy and void. C.4. INTEREST IN PROPERTY AND LIFE DISTINGUISHED

C. 1. TIME OF EXISTENCE General rule:Interest in property insured must exist both at inception and at time of loss, but not in the intervening period. [Sec. 19] Exceptions: (1) A change in interest over the thing insured after the loss contemplated. The insured may sell the remains without prejudice to his right to recover [Sec. 21]; (2) A change of interest in one or more several distinct things, separately insured

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Property

Life Extent

Limited to actual value of the interest thereon

Unlimited (save in life insurance effected by a creditor on the life of the debtor – amount of debt only)

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Property

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(4) The same interest insured; and

Life

(5) The same risk or peril insured against [Malayan Insurance v Philippine First Insurance, G.R. No. 184300 (2012)]

Existence Must exist when the insurance takes effect and when the loss occurs, BUT need not exist in the meantime

Must exist at the time the insurance takes effect, BUT need not exist thereafter

Double insurance is not prohibited under the law, unless the policy contains a stipulation to the contrary. Usually, insurance policies contain “other insurance clause” which requires disclosure of other existing insurance policy. In such case, non-disclosure will avoid the policy. Such clause is intended to prevent over insurance and thus avert the perpetration of fraud.

Expectation of benefit to be derived Must have legal basis

Need not have legal basis

Interest of beneficiary Must have insurable interest over the thing insured

If there is double insurance and loss occurs, each of the insurers will be liable only up to the face value of their respective policies and the insured has the option of choosing the order by which he will claim from the insurers.

Need not have insurable interest over the life of the insured if the insured himself secured the policy. But if the insurance was obtained by the beneficiary, the latter must have insurable interest over the life of the insured [Sundiang and Aquino, Reviewer on Commercial Law (2013)]

Over-insurance occurs when the value of the insurance exceeds the value of the insurable interest. Over-insurance is not per se void but recovery is allowed only to the extent of the loss or damage incurred by the insured [Carale (2014)] If there is over-insurance and loss occurs, then the insurers will pay pro-rata (or in the order as stated in contract or “excess clause”) in case of loss.

D. DOUBLE AND OVER INSURANCE; REINSURANCE D.1. DOUBLE INSURANCE Sec. 95. Double insurance exists where the same person is insured by several insurers separately in respect to the same subject and interest. Requisites:

Also, under Sec. 83, “in case of an over insurance by several insurers other than life, the insured is entitled to a ratable return of the premium, proportioned to the amount by which the aggregate sum insured in all the policies exceeds the insurable value of the thing at risk.” D.2. RULES FOR PAYMENT

(1) The same person is insured; (2) Two or more separately;

Nonetheless, under Sec. 64(f), an insurer may cancel an insurance policy, other than life, based on a “discovery of other insurance coverage that makes the total insurance in excess of the value of the property insured” subject to the requirement of prior notice.

insurers

(3) The same subject matter;

insuring

Sec. 96 enunciates the principle of contributionwhich requires each insurer to contribute ratably to the loss or damage considering that the several insurances cover the same subject matter and interest against

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the same peril. If the loss is greater than the sum total of all the policies issued, each insurer is liable for the amount of his policy. D.3. DOUBLE AND OVER INSURANCE DISTINGUISHED Double insurance

Over insurance

Amount of insurance may or may not exceed the value of the insured’s insurable interest

Amount of insurance exceeds the value of the insured’s insurable interest

There are always several insurers

There may be one or more insurers

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D.4.B. REINSURANCE TREATY AND POLICY DISTINGUISHED A reinsurance treaty is an agreement between two insurance companies whereby one agrees to cede and the other to accept reinsurance business pursuant to provisions specified in the treaty. [De Leon (2014)] A reinsurance policy is a contract of indemnity one insurer makes with another to protect the first insurer from a risk it has already assumed. Reinsurance treaties and reinsurance policies are not synonymous. Treaties are contracts for insurance; policies are contracts of insurance. [Philamlife v. Auditor General, G.R. No. 19255(1968)] D.5. DOUBLE INSURANCE REINSURANCE DISTINGUISHED

D.4. REINSURANCE

Double insurance

Sec. 97. A contract of reinsurance is one by which an insurer procures a third person to insure him against loss or liability by reason of such original insurance.

AND

Reinsurance

Same interest

Different interest

Insurer remains as the insurer

Insurer becomes the insured in relation to the reinsurer

Insured is a party in interest in the insurance contracts

The original insured is not a party in the reinsurance contract

Sec. 100. The original insured has no interest in a contract of reinsurance.

Property is the subject matter

The original insurer's risk is the subject matter

Reinsurance has been referred to as “an insurance of an insurance.”

Insured has to give his consent

Insured’s consent is not necessary

Sec. 99. A reinsurance is presumed to be a contract of indemnity against liability, and not merely against damage.

D.4.A. ORIGINAL INSURANCE CONTRACT AND REINSURANCE CONTRACT DISTINGUISHED The original insurance contract is separate and distinct from the reinsurance contract. An original insurance contract covers indemnity against damages, while reinsurance covers indemnity against liability.

E. MULTIPLE OR SEVERAL INTERESTS ON SAME PROPERTY The Insurance Code recognizes that both the mortgagor and mortgagee have each separate and distinct insurable interest in the mortgaged property and that they may take out separate policies with the same or different insurance companies. Consequently, insurance taken by one on his own name only does not inure to the benefit of the other. [Sec. 53]

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Thus, a mortgagor has an insurable interest equal to the value of the mortgaged property and a mortgagee, only to the extent of the debt Secured by the mortgage. [Geagonia v. CA, G.R. No. 114427(1995)] When a mortgagee insures his own interest in the mortgaged property without reference to the right of the mortgagor, mortgagee is entitled to the proceeds of the policy in case of loss to the extent of his credit. [De Leon (2014)] If the proceeds are more than the total amount of credit, then mortgagee has no right to the excess. If the proceeds are equal to the credit, then insurer is subrogated to the mortgagee’s rights and mortgagee can no longer recover the mortgagor’s indebtedness.

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E.2. UNION MORTGAGE OR STANDARD MORTGAGE CLAUSE This clause is similar to an open loss payable clause, except that it is stipulated that the acts of the mortgagor cannot invalidate the insurance, provided that if the mortgagor fails to pay the premiums due, the mortgagee shall, on demand, pay said premiums. [De Leon (2014)] When a mortgagee insured his own interest and a loss occurs, he is entitled to recover on the insurance. However, he may no longer claim against the mortgagor, for his claim is discharged up to the amount the insurer has paid him. [Palileo v. Cosio G.R. No. L-7677 (1955)]

If the proceeds are less than the credit, then the mortgagee may recover from the mortgagor the deficiency. Upon payment, the insurer is subrogated to the rights of the mortgagee against the mortgagor to the extent of the amount paid. When a mortgagor takes out an insurance for his own benefit, he can only recover from the insurer but the mortgagee has a lien on the proceeds by virtue of the mortgage. A mortgagor can make the proceeds payable to or assigned to the mortgagee. [De Leon (2014)] E.1. OPEN LOSS PAYABLE MORTGAGE CLAUSE An open loss payable clause states that the proceeds of the insurance contract is payable to the mortgagee as beneficiary. The contract, however, is procured by the mortgagor for his interest in the property. He is the party to the contract, not the mortgagee. The acts of the mortgagor prior to the loss, which would otherwise avoid the insurance, affects the mortgagee, even if the property is in the hands of said mortgagee.

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VI. Perfection of the Insurance Contract A. OFFER AND ACCEPTANCE/CONSENSUAL An insurance contract is consensual. It is therefore perfected by mere consent. Consent is manifested by the meeting of the offer and the acceptance upon the object or the cause which are to constitute the contract. There is an offer when the insured submits an application to the insurer. There is acceptance when the insurer approves the application.The insurance contract becomes effective upon payment of first premium, provided there has been an approval of the application. A contract of insurance must be assented to by both parties, either in person or through their agents and so long as an application for insurance has not been either accepted or rejected, it is merely a proposal or an offer to make a contract. [Perez v. CA,G.R. No. 112329 (2000)] Also, according to Enriquez v. Sun Life Assurance Co.G.R. No. L-15895 (1920): (1) Submission of application, even with premium payment is a mere offer on the part of the applicant, and does not bind the insurer; (2) An insurance contract is also not perfected where the applicant dies before the approval of his application or it does not appear that the acceptance of the application ever came to the knowledge of the applicant; (3) An acceptance made by letter shall not bind the person making the offer except from the time it came to his knowledge. The parties may impose additional conditions precedent to the validity of the policy as a contract as they see fit. Usually, it is stipulated in the application that contract shall not become binding until the policy is delivered and the first premium is paid [De Leon (2014)]

MERCANTILE LAW

A.1. DELAY IN ACCEPTANCE Delay in acting on the application does not constitute acceptance even though the insured has forwarded his first premium with his application. [Perez v. CA, G.R. No. 112329(2000)] When there is delay in acceptance due to the negligence of the insurance company which takes unreasonably long time before the application is processed and the applicant dies, the contract is not perfected. In this case, the insurer can be liable for damages in accordance with the “tort theory.” The insurance business is imbued with public interest, thus it is the duty of the insurer to act with reasonable promptness in acting on applications submitted to it [Wallace v. Hartford Fire Insurance Co, 31 Idaho 48r,(1918)] A.2. DELIVERY OF POLICY Delivery is the act of placing the insurance policy (the physical document) into the possession of the insured. The delivery can be a proof of the acceptance of the insurer of the offer of the insured. It is not, however, a prerequisite of a valid contract of insurance. Actual manual delivery is not necessary for the validity of the contract. Constructive delivery may be sufficient. Actual delivery to the insured is not essential to give the policy binding effect as long as the insured has complied with every condition required of him. [New York Life Ins. Co. v. Babcock, 30 S. E. 273 (1898)] In Bradley v. New York Life Ins., 275 F. 657 (1921),the agent of the insurance company is not the agent of the insured. Thus delivery to the agent cannot be considered delivery to the insured.

B. PREMIUM PAYMENT An insurance premium is the agreed price for assuming and carrying the risk, that is, the consideration paid an insurer for undertaking to indemnify the insured against the specified peril. General rule: No insurance policy issued or renewal is valid and binding until actual

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payment of the premium (Sec 77). Any agreement to the contrary is void.

Sec. 77. Notwithstanding any agreement to the contrary, no policy or contract of insurance issued by an insurance company is valid and binding unless and until the premium thereof has been paid, except in the case of a life or an industrial life policy whenever the grace period provision applies or whenever under the broker and agency agreements with duly licensed intermediaries, a 90 day credit extension is given. No credit extension to a duly licensed intermediary should exceed 90 days from the date of issuance of the policy. Sec. 79. An acknowledgment in a policy or contract of insurance or the receipt of premium is conclusive evidence of its payment, so far as to make the policy binding, notwithstanding nay stipulation therein that it shall not be binding until the premium is actually paid.

Note: Under RA 10607, the exceptions provided by law are as follows: (1) Life and industrial life policy [Sec. 77] (2) 90 day credit extensions covered by broker or agency agreements with licensed intermediaries [Sec. 77] (3) Acknowledgment in the contract that premium has been paid [Sec. 79)] Jurisprudence decided before RA 10607 provides two further exceptions: (1) Agreement to grant payment of premium in installment basis and partial payment has been made [Makati Tuscany v. CA, G.R. No. 95546, (1992)] (2) When parties are barred by Estoppel [UCPB v. Masagana Telemart, G.R. No. 137172(2001)]

MERCANTILE LAW

B.1. AUTHORITY OF AGENT TO RECEIVE PREMIUM Where an insurer authorizes an insurance agent or broker to deliver a policy to the insured, it is deemed to have authorized said agent to receive the premium in its behalf. The insurer is bound by its agent’s acknowledgement of receipt of payment of premium [American Home Assurance Co. v. Chua, G.R. No. 130421 (1999)] B.2. PAYMENT BY POST-DATED CHECK The payment of premium by a postdated check at a stated maturity subsequent to the loss is insufficient to put the insurance into effect. But payment by a check bearing a date prior to the loss, assuming availability of funds, would be sufficient, even if it remains unencashed at the time of the loss. The subsequent effects of encashment would retroact to the date of the instrument and its acceptance by the creditor [Vitug, Commercial Laws and Jurisprudence (2006)] B.3. NON-PAYMENT OF PREMIUM Non-payment of first premium, unless waived, prevents the contract from becoming binding notwithstanding the acceptance of the application nor the issuance of the policy. [Philippine Phoenix Surety and Insurance v Woodworks, G.R. No. L-25317 (1979)] Non-payment of subsequent premiumsdoes not affect the validity of the contracts unless, by express stipulation, it is provided that the policy shall in that event be suspended or shall lapse. In case of individual life insurance, the policy holder is entitled a grace period of either 30 days or one month within which payment of any premium after the first may be made. [Sec. 233] In cases of industrial life insurance, the grace period is four weeks, and where premiums are paid monthly, either 30 days or one month. [Sec. 236]

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B.4. EXCUSES FOR NON-PAYMENT (1) Fortuitous events which render payment by the insured wholly impossible will not prevent forfeiture of the policy when the premium remains unpaid. In other words, it is not an excuse. (2) Non-payment of premiums occasioned by war causes an insurance to be not merely suspended, but is completely abrogated. It would be unjust to allow the insurer to retain the reserve value of the policy, which is the excess of the premiums paid over the actual risk carried during the years when the policy had been in force in time of war [Constantino v. Asia Life Ins. Co. G.R. No. L-1669 (1950)]

MERCANTILE LAW

D. NON-DEFAULT OPTIONS IN LIFE INSURANCE Sec. 227 (f) – The law requires that in case of life or endowment insurance, the policy shall contain a provision specifying the options to which the policy holder is entitled in the event of default in a premium payment after three full annual premiums shall have been paid: (1) Receive the cash surrender value (2) Apply such value as the premium for an extended insurance (3) Apply such value as the premium for a paid-up insurance (4) Secure from such value an automatic premium loan before the expiration of the grace period.

C. COVER-NOTES Sec. 52. Cover notes may be issued to bind insurance temporarily pending the issuance of the policy. Within sixty (60) days after issue of a cover note, a policy shall be issued in lieu thereof, including within its terms the identical insurance bound under the cover note and the premium therefor. Cover notes may be extended or renewed beyond such sixty (60) days with the written approval of the Commissioner if he determines that such extension is not contrary to and is not for the purpose of violating any provisions of this Code. The Commissioner may promulgate rules and regulations governing such extensions for the purpose of preventing such violations and may by such rules and regulations dispense with the requirement of written approval by him in the case of extension in compliance with such rules and regulations. Cover notes are in effect interim policies that bind the parties until a formal policy is issued, but the rule is that the cover note will not amount to a contract unless there is agreement on the material terms. If the cover note was issued following the expiration of a policy, the presumption will be that the cover is on the same terms as the old policy. [Carale (2014)]

D.1. CASH SURRENDER VALUE (CSV) It is the amount that the insured is entitled to receive if he surrenders the policy and releases his claims upon it. The right to CSV accrues only after three full annual premium payments. The insured is given the right to claim the amount less than the reserve, reduced by surrender charge. [Sec. 233(f)] The cash value or cash surrender value is an amount which the insurance company holds in trust for the insured to be delivered to him upon demand. When the company’s credit for advances is paid out of the cash value or cash surrender value, that value and the company’s liability is diminished. [Manufacturer’s Life Ins. v. MeerG.R. No. L2910(1951)] Rationale: The premium is uniform throughout a lifetime, but the risk is varied (i.e., higher risk when older, lower when young). Thus, the cost of protection is more expensive during the early years of the policy.

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D.2. ALTERNATIVE TO CSV (1) Extended insurance/term insurance where the insured, after having paid three full annual premiums, is given the right to have the policy continued in force from date of default for a time either stated or equal to the amount of the CSV, taken as a single premium. The face value of the policy remains the same but only within the term. It is also called “term insurance” where CSV is taken as a single premium (no further payments) to extend the policy for a fixed period of time. If death occurs during this period, the beneficiary can recover the face value of the policy, but if the insured survives, the beneficiary gets nothing. Reinstatement is allowed if made within the term purchased; no reinstatement after the lapse of the term purchased. (2) Paid-up insurance - where, after the insurance is “paid-up,” the insured who has paid three full annual premiums is given the right, upon default, to have the policy continued from the date of default for the whole period of insurance without further payment of premiums. It is also called “reduced paid-up” because in effect the policy, terms and conditions are the same but the face value is reduced to the “paid-up” value. The terms and conditions of the original policy remain the same, however, the amount will be less than the original face value. (3) Automatic premium loan (APL) - where, upon default, the insurer lends/advances to the insured without any need of application on his part, the amount necessary to pay overdue premium, but not to exceed the CSV of the policy. It only applies if requested in writing by the insured either in the application or at any time before expiration of the grace period. In effect, the insurance policy continues in force for a period covered by the payment. After the period, if insured still does not resume paying his premiums, policy lapses, unless CSV still remains. If there is still CSV, APL continues until CSV is exhausted. This is beneficial for the insured because it continues the contract and all its features with full force and effect.

MERCANTILE LAW

E. REINSTATEMENT OF A LAPSED LIFE INSURANCE POLICY Reinstatement of a lapsed life insurance policy is not a non-default option. It does not create a new contract, but merely revives the original policy so insurer cannot require a higher premium than the amount stipulated in the contract. It does not apply to group/industrial life insurance. Requisites: [Sec. 233(j)] (1) It must be exercised within three years from date of default; (2) The insured must present evidence of insurability satisfactory to the insurer; (3) He must pay all back premiums and all indebtedness to the insurer (with interest) (4) The CSV must not have been duly paid to the insured nor the extension period expired; (5) The application must be filed during the insured’s lifetime. [Andres v. Crown Life Ins. G.R. No. L-10874 (1958)]

F. REFUND OF PREMIUMS Return of premiums can be made in the following cases: (1) If the thing insured was never exposed to the risks insured against, the whole premium should be refunded [Sec. 80(a)]; (2) When the contract is voidable due to the fraud or misrepresentation of insurer or his agent, the whole premium should be refunded [Sec. 82] (3) When by any default of the insured other than actual fraud, the insurer never incurred any liability under the policy, the whole premium should be refunded [Sec. 82]; (4) When the contract is voidable because of the existence of facts of which the insured was ignorant without his fault, the whole premium should be refunded [Sec. 82]; (5) Where the insurance is for a definite period and the insured surrenders his policy, the portion of the premium that corresponds to the unexpired time at a pro rata rate, unless a short period rate

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has been agreed upon and appears on the face of the policy should be return [Sec. 80(b)]; (6) When there is over-insurance by several insurers, the return premiums should be proportioned to the amount by which the aggregate sum insured in all the policies exceeds the insurable value of the thing at risk [Sec. 83]; (7) When rescission is granted due to the insurer’s breach of contract.

MERCANTILE LAW

VII. Rescission of Insurance Contracts Sec. 26. A neglect to communicate that which a party knows and ought to communicate, is called a concealment. Sec. 27. A concealment whether intentional or unintentional entitles the injured party to rescind a contract of insurance.

Requisites: (1) A party knows a fact which he neglects to communicate or disclose to the other; (2) Such party concealing is duty bound to disclose such fact to the other; (3) Such party concealing makes no warranty of the fact concealed; (4) The other party has not the means of ascertaining the fact concealed; (5) The fact concealed is material. Concealment may be committed by either the insurer or the insured [Qua Chee Gan v. Law Union & Rock Ins. Co. G.R. No. l-4611(1955)] A.1. PROOF OF FRAUD IN CONCEALMENT General rule: Fraud need not be proven in order to prove concealment. Good faith is not a defense. [Saturnino v Phil. American Life Insurance, G.R. No. L-16163 (1963)] Exception: When the concealment is made by the insured in relation to the falsity of a warranty, the non-disclosure must be intentional and fraudulent in order that the contract may be rescinded [Sec. 29] A.2. TEST OF MATERIALITY Sec. 31. Materiality relates rather to the probable and reasonable influence of the facts upon the party to whom the communication should have been made, in assessing the risk involved in making or PAGE 88 OF 320

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(d) The want of necessary documents; and

omitting to make further inquiries and in accepting the application for insurance.

(e) The use of false and simulated papers [Sec 112]. The test is the effect which the knowledge of the fact in question would have on the contract. It is sufficient if the knowledge of it would influence the party in making the contract. [De Leon (2014)]

A.4. CONCEALMENT IN MARINE AND ORDINARY PRIVATE INSURANCE DISTINGUISHED Marine

Ordinary

insurance

insurance

The test of materiality is whether the insurer would have agreed to issue the policy had it known of the facts concealed or impose additional terms or require higher premium [Carale (2014)]

Required disclosure

Exact and whole truth

Substantial truth

A.3. EFFECTS

Effect of concealment

Concealment of the matters specified in Sec. 112 will not entirely avoid the contract but will merely exonerate the insurer from losses resulting from the risk concealed.

Any kind of concealmen t will make the insurer not liable.

General rule: Concealment vitiates the contract and entitles the insurer to rescind, even if the death or loss is due to a cause not related to the concealed matter. [Sec. 27] Exceptions: (1) Incontestability clause: stipulates that the policy shall be incontestable after two years from its date of issue or of its last reinstatement. The incontestability clause is a mandatory provision in life and endowment policies.[Sec. 233 (b) and Sec. 48]; (2) Concealment after the contract has become effective, because concealment must take place at the time the contract is entered into in order that the policy may be avoided. [Vance (1951)] Information obtained after the perfection of the contract is no longer necessary to be disclosed by the insured, even if the policy has not been issued. (3) Waiver or estoppel; (4) In Marine insurance, where concealment of the following matters does not vitiate the entire contract, but merely exonerates the insurer from a loss resulting from the risk concealed: (a) The national character of the insured; (b) The liability of the thing insured to capture and detention; (c) The liability to seizure from breach of foreign laws of trade;

A.5. CONCEALMENT IN NON-MEDICAL INSURANCE The waiver of medical examination in a nonmedical insurance contract renders the information required of the applicant concerning the previous conditions of health and diseases suffered more important. The cause of death is not important because it is well settled that the insured need not die of the disease he had failed to disclose to the insurer. It is sufficient that his nondisclosure misled the insurer in forming his estimates of the risks of the proposed policy or in making inquiries. [Sunlife v. Sps. Bacani G.R. No. 105135 (1995)] Where matters of opinion or judgment are called for, answers made in good faith and without intent to deceive will not avoid the policy even though they are untrue. Reason: The insurer cannot simply rely on those statements. He must make further inquiry [Philamcare Health Systems v. CA, G.R. No. 125678 (2002)]

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A.6. MATTERS WHICH MUST BE DISCLOSED EVEN IN THE ABSENCE OF INQUIRY Sec. 28. Each party to a contract of insurance must communicate to the other, in good faith, all facts within his knowledge which are material to the contract and as to which he makes no warranty, and which the other has not the means of ascertaining.

Note:If the applicant is aware of the existence of some circumstance which he knows would influence the insurer in acting upon his application, good faith requires him to disclose that circumstance, though unasked. [Vance (1951)] The fact of being a “mongoloid” is a material fact that needs to be disclosed [Great Pacific Life v. CA, G.R. No. L-31845(1979)]. Mere possibility of previous hypertension is not enough to establish concealment [Great Pacific Life v. CA, G.R. No. 113899(1999)]. A.7. MATTERS WHICH NEED NOT BE DISCLOSED

MERCANTILE LAW

are open to his inquiry, equally with that of the other, and which may affect the political or material perils contemplated; and all general usages of trade.

B.MISREPRESENTATION/OMISSIONS Sec. 41. A representation may be altered or withdrawn before the insurance is effected but not afterwards. Sec. 42. A representation must be presumed to refer to the date on which the contract goes into effect. Sec. 44. A representation is to be deemed false when the facts fail to correspond with its assertions or stipulations. Sec. 45. If a representation is false in a material point, whether affirmative or promissory, the injured party is entitled to rescind the contract from the time when the representation becomes false.

(1) Matters already known to the insurer [Sec 30(a)]; (2) Matters which each party are bound to know [Sec 30(b) and Sec 32]; (3) Matters of which the insurer waives communication [Sec 30(c) and Sec 33]; (4) Matters which prove or tend to prove the existence of a risk excluded by a warranty and which are not otherwise material [Sec 30(d)]; (5) Matters which relate to a risk excepted in the policy, and which are not otherwise material [Sec 30(e)]; (6) Information of the nature or amount of the interest of one insured unless if inquired upon by the insurer, except if required by Sec 51[Sec 34]

Representations are factual statements made by the insured at the time of, or prior to, the issuance of the policy, which give information to the insurer and induce him to enter into the insurance contract. There is false representation if the matter is true at the time it was made/represented but false at the time the contract takes effect(Sec 44). There is no false representation if the matter is true at the time the contract takes effect although false at the time it was made/represented. B.1. KINDS OF REPRESENTATIONS

(7) Matters of opinion [Sec 35]

(1) Affirmative, which refers to any allegation as to the existence or non-existence of a fact when the contract begins [De Leon (2014)].

Sec. 32. Each party to a contract of insurance is bound to know all the general causes which

(2) Promissory, which is any promise to be fulfilled after the contract has come into

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existence; or any statement concerning what is to happen during the existence of the insurance [Sec 39]. A promissory representation is substantially a condition or warranty [De Leon (2014)].

MERCANTILE LAW

(5) Representation by insured based on information obtained from third persons (not his agent), provided the insured: (a) Has no personal knowledge of the facts;

(3) Oral or written [Sec 36].

(b) Believes them to be true; and (c) Explains to the insurer that he does so on the information of others.

Requisites: (1) The insured stated a fact which is untrue; (2) Such fact was stated with knowledge that it is untrue and with intent to deceive or which he states positively as true without knowing it to be true and which has a tendency to mislead; (3) Such fact in either case is material to the risk. Like in concealment, fraud or intent is not essential to entitle the insurer to rescind on the ground of misrepresentation [Sec 45]. B.2. TEST OF MATERIALITY Sec. 46. The materiality of a representation is determined by the same rules as the materiality of a concealment.

B.3. EFFECTS General rule:The injured party is entitled to rescind from the time when the representation becomes false [Sec 45]. Exceptions: (1) Incontestability clause; (2) Misrepresentation after contract takes effect; (3) Waiver, made by acceptance of insurer of premium payments despite knowledge of the ground for rescission [Sec 45]; (4) A representation of the expectation, belief, opinion, or judgment of the insured, although false, and even if material to the risk [Philamcare Health Systems, Inc. v. CA, G.R. No. 125678. (2002)];

(6) A misrepresentation as to age does not constitute a ground for rescission. If the age of the insured was considered in determining the premium and the benefits under the policy and the age is misstated, the amount payable for the policy shall be as if the policy was purchased at the correct age [Carale (2014)]. A representation cannot qualify an express provision or an express warranty of insurance (Sec 40) because a representation is not part of the contract but only a collateral inducement to it. However, it may qualify as an implied warranty. It is sufficient that the representation is substantially or materially true, and in case of promissory representation, it is sufficient that it is substantially complied with [Carale (2014)]. There is fraud and misrepresentation when another person takes the place of the insured in the medical examination [Eguaras v. Great EasternG.R. No. L-10436(1916)]. The insurer is not entitled to rescission for misrepresentation of age if the birth date on the policy leads to the conclusion that the insured is beyond the age covered and yet the insurer continued to accept payment and issued the policy. Insurer is deemed estopped [Edillon v. Manila Bankers Life G.R. No. L34200 (1982)]. Despite not answering the questions and keeping blank certain questions in the application regarding ailments he has suffered, when the insured signed the pension plan application, he adopted the written representations and declarations embodied in as his own. Therefore, it is clear from these representations that he concealed his chronic heart ailment and diabetes.

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[Florendo v. 186983(2012)].

Philam

PlansG.R.

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No. Sec. 68. A warranty may relate to the past, the present, the future, or to all of these.

Concealment

Misrepresentation Sec. 69. No particular form of words is necessary to create a warranty.

Who may commit May be committed by either insured or insurer

Committed only by insured.

C.1. WARRANTIES, ENDORSEMENTS

Act involved Passive form

Active form

Insured withholds information of material facts from the insurer; he maintains silence when he ought to speak

Insured makes erroneous statements of facts with the intent of inducing the insurer to enter into the insurance contract

RIDERS,

AND

Sec. 50 The policy shall be in printed form which may contain blank spaces; and any word, phrase, clause, mark, sign, symbol, signature, number, or word necessary to complete the contract of insurance shall be written on the blank spaces provided therein. Any rider, clause, warranty or endorsement purporting to be part of the contract of insurance and which is pasted or attached to said policy is not binding on the insured, unless the descriptive title or name of the rider, clause, warranty or endorsement is also mentioned and written on the blank spaces provided in the policy.

Materiality Determined by the same rules Effect

Unless applied for by the insured or owner, any rider, clause, warranty or endorsement issued after the original policy shall be countersigned by the insured or owner, which countersignature shall be taken as his agreement to the contents of such rider, clause, warranty or endorsement.

Same effects on the part of the insured; insurer has right to rescind Injured party is entitled to rescind a contract of insurance on ground of concealment or false representation, whether intentional or not.

C. BREACH OF WARRANTIES A Warranty is a statement or promise by the insured set forth in the policy itself or incorporated in it by proper reference, the untruth or nonfulfillment of which in any respect and without reference to whether the insurer was in fact prejudiced by such untruth or non-fulfillment, renders the policy voidable by the insurer [Vance (1951)]. Statements or promises agreed upon by both parties to the insurance contract which are contained in the contract or properly incorporated constitute warranties [Carale (2014)].

Notwithstanding the foregoing, the policy may be in electronic form subject to the pertinent provisions of Republic Act No. 8792, otherwise known as the ‘Electronic Commerce Act’ and to such rules and regulations as may be prescribed by the Commissioner. A Rider is a printed or typed stipulation contained in a slip of paper attached to the policy and forming an integral part thereof. The signature of the insured is required only if the riders, warranties, or endorsements are made or issued after the issuance of the original policy.

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C.2. KINDS OF WARRANTIES (1) Express warranty, which is an agreement contained in the policy or clearly incorporated therein as part thereof relating to the person or thing insured or to the risk as a fact[Sec. 71]; (2) Implied warranty,whichisdeemed included in the contract although not expressly mentioned (e.g., implied warranty of seaworthiness of the vessel in marine insurance and implied warranty not to alter the circumstances of the thing insured); (3) Affirmative warranty, which asserts the existence of a fact or condition at the time it is made; (4) Promissory warranty or executory warranty, which is one where the insured stipulates that certain facts or conditions pertaining to the risk shall exist or that certain things with reference thereto shall be done or omitted. It is in the nature of a condition subsequent [Secs 72 and 73]. C.3. EFFECT C.3.A. MATERIAL W ARRANTY Sec. 74. The violation of a material warranty, or other material provision of the policy, on the part of either the insured or insurer, entitles the other to rescind.

MERCANTILE LAW

(3) The performance becomes impossible[Sec 73]; (4) Waiver or estoppel. C.3.B. IMMATERIAL W ARRANTY General rule: Breach of an immaterial provision does not avoid the policy [Sec 75]. Exception: Breach of an immaterial provision avoids the policy when the parties stipulate that violation of a particular provision, though immaterial, shall avoid the policy. In effect, the parties converted the immaterial provision into a material one [Sundiang and Aquino (2013)]. A condition in the policy which requires insured to disclose to the insurer of any insurance that, if violated by the insured, would ipso facto avoid the contract [Pioneer v. Yap, G.R. No. L-36232(1974)]. Insurer is barred by waiver (or estoppel) to claim violation of the so-called hydrants warranty when, despite knowing fully that only 2 fire hydrants existed (out of the 11 hydrants required), it still issued the insurance policies and received the premiums [Qua Chee Gan v. Law Union, G.R. No. L-4611 (1955)]. Warranty

Representation Nature

Part of the contract Breach of a material warranty may either be: (1) Without fraud, in which case, the insurer will be exonerated from the time it occurs. If made during the inception, it will prevent the policy from taking effect [Sec 76]. (2) With fraud, in which case, the policy is avoided ab initio and the insured is not entitled to the return of the premiums paid. [De Leon (2014)] Exceptions: (1) Loss occurs before the time performance of the warranty [Sec 73];

Mere collateral inducement Form

Written on the policy, actually or by reference

May be written in the policy or may be oral

Materiality Presumed material

Must be proved to be material

Compliance Must be strictly complied with

of

Requires only substantial truth and compliance

Applicability of incontestability clause

(2) The performance becomes unlawful[Sec 73]; PAGE 93 OF 320

Does not apply

Applies

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VIII. Claims Settlement and Subrogation

MERCANTILE LAW

A.2. LIABILITY FOR LOSS

A. CONCEPT OF LOSS Loss in insurance law embraces injury or damage Requisites: Recovery upon a loss requires that: (1) The insured must have insurable interest in the subject matter; (2) The interest is covered by the policy; (3) There be a loss; and (4) The loss must be one for which the insurer is liable; (5) Notice and proof of loss must be given if policy is fire insurance or when the same is stipulated in the policy.

Loss for which the

insurer is liable

insurer is not liable

Loss the proximate cause of which is the peril insured against [Sec 86]

Loss by insured’s willful act

Loss the immediate cause of which is the peril insured against exceptwhere the proximate cause is an excepted peril

Loss due to connivance of the insured [Sec 89]

Loss through negligence of insured except where there was gross negligence amounting to willful acts

Loss where the excepted peril is the proximate cause

Loss caused by efforts to rescue the thing from peril insured against if, during the course of the rescue, the thing is exposed to a peril not insured against, which permanently deprives the insured of its possession in whole or in part (Sec 87)

A.1. CAUSES OF LOSS (1) Remote cause is an event preceding another in a causal chain, but separated from it by other events; (2) Proximate cause is “that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred” [Vda. De Bataclan v. Medina, G.R. No. L10126 (1957)]. (3) Immediate cause isthe cause, not the proximate cause, which immediately precedes the loss.

Loss for which the

B. NOTICE AND PROOF OF LOSS B.1. NOTICE OF LOSS This refers to the formal notice given the insurer by the insured or claimant under a policy of the occurrence of the loss insured against. B.1.A. PURPOSE Its purpose is to apprise the insurance company so that it may make proper

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investigation and take such action as may be necessary to protect its interest. In fire insurance, an insurer is exonerated, if notice thereof be not given to him by an insured, or some person entitled to the benefit of the insurance, without unnecessary delay [Sec 90]. In other types of insurance, failure to give notice will not exonerate the insurer, unless there is a stipulation in the policy requiring the insured to do so.

MERCANTILE LAW

B.2. PROOF OF LOSS It is the formal evidence given to the insurance company by the insured or claimant, under a policy, of: the occurrence of the loss, the particulars thereof, and the data necessary to enable the company to determine its liability and the amount. [De Leon (2014)] B.2.A. PURPOSE

However, it has been held that formal notice of loss is not necessary if insurer has actual notice of loss [Fidelity Phoenix Insurance v Friedman, 174 SW 215] but there is a ruling to the contrary [Col. Sav. Bank v American Surety 87 P 118]

Its purpose is to give the insurer information by which he may determine the extent of his liability but also; to afford him a means of detecting any fraud that may have been practiced upon him, and to operate as a check upon extravagant claims.

B.1.B. FORM

Like a notice of loss, in the absence of any stipulation in the policy, proof may be given orally or in writing.

In case of loss as regards fire insurance, there must be a written notice thereof. [Sec. 90] But as to other non-life insurance policies, the law does not provide for a necessity of written notice [De Leon (2014)] The notice of loss may be in the form of an informal or provisional claim containing a minimum of information as distinguished from a formal claim which contains the full details of the loss, computations of the amounts claimed, and supporting evidence, together with a demand or request for payment [De Leon (2014)].

The insured is not bound to give such proof as would be necessary in a court of justice; but it is sufficient for him to give the best evidence which he has in his power at the time [Sec 91]. B.2.B. RULES FOR RECOVERY General rule: Timely compliance with the notice and proof of loss is a condition precedent to the right to recover if the policy is fire insurance, or when the same is stipulated in the policy. [Sec. 90] Exceptions: (1) For both notice and proof of loss, waiver: (a) Defects in a notice or proof of loss may be waived when such defects, which the insured might remedy, are not specified, without unnecessary delay, to him as ground of objection by the insurer [Sec 92];

B.1.C. Tim e for Giving Notice Notice of loss must be given within reasonable time. [Bachrach v Britain American Assurance, G.R. No. L-5715 (1910)] For compulsory motor vehicle insurance, the notice must be given within six months from the date of the accident. [Sec. 397]

(b) Delay in presentation to an insurer of notice or proof of loss is waived if caused by any act of his, or if he omits to take objection promptly and specifically upon that ground [Sec. 93];

For other non-life insurance, the Commissioner may specify the period for the submission of the notice of loss [Sec. 90]

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C. GUIDELINES SETTLEMENT

ON

CLAIMS

Claims settlement is the indemnification of the loss suffered by the insured. The claimant may be the insured or reinsured, the insurer who is entitled to subrogation, or a third party who has a claim against the insured

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In case of litigation, it is the duty of the Commissioner or the Court to determine whether the claim has been unreasonably denied or withheld. Failure to pay any such claim within the time prescribed shall be considered prima facie evidence of unreasonable delay in payment. [Sec. 250]

Where a policy gives the insurer the control of the decision to settle claim or litigate it, the insurer nevertheless is required to observe a certain measure of consideration for the interest of the insured.

Claims Maturity

Life insurance Either: (a) Upon death of the person insured; (b) Upon his surviving a specific period; or (c) Otherwise contingently on the continuance or cessation of life [Sec 180]

Delivery of proceeds

General rule:The proceeds should be delivered immediately upon maturity of policy. Exceptions: 1.

If payable ininstallments or as an annuity, when such installments or annuities become due;

2. If maturity is upon death, within 60 days after presentation of claim and filing of proof of death of insured. [Sec. 248]

Effect of refusal or failure to pay claim within time prescribed

1.

Non-life insurance (1) Upon happening of event insured against; and (2) Event must occur within the period specified in policy, otherwise insurer has no liability

(1) Within 30 days after: (a) Proof of loss is received by insurer; and (b) Ascertainment of loss damage is made either agreement between insured and insurer or arbitration

or by the by

(2) If ascertainment is not made within 60 days after such receipt by insurer of proof of loss, then loss or damage shall be paid within 90 days after such receipt. [Sec. 249]

This entitles the beneficiary to collect interest on the proceeds of policy for the duration of the delay at rate of twice the ceiling prescribed by the monetary board (unless refusal to pay is based on ground that claim is fraudulent)

2. In case damages are awarded, this includes attorney’s fees and other expenses incurred due to delay (plus the interest) [Sec. 248 and 249]

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C.1. UNFAIR SANCTIONS

INSURANCE

CLAIMS

SETTLEMENT;

Sec. 247. No insurance company doing business in the Philippines shall refuse, without just cause, to pay or settle claims arising under coverages provided by its policies, nor shall any such company engage in unfair claim settlement practices. Any of the following acts by an insurance company, if committed without just cause and performed with such frequency as to indicate a general business practice, shall constitute unfair claim settlement practices: Knowingly misrepresenting to claimants pertinent facts or policy provisions relating to coverage at issue; Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its policies; Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under its policies; Not attempting in good faith to effectuate prompt, fair and equitable settlement of claims submitted in which liability has become reasonably clear; or Compelling policyholders to institute suits to recover amounts due under its policies by offering without justifiable reason substantially less than the amounts ultimately recovered in suits brought by them. Evidence as to numbers and types of valid and justifiable complaints to the Commissioner against an insurance company, and the Commissioner’s complaint experience with other insurance companies writing similar lines of insurance shall be admissible in evidence in an administrative or judicial proceeding for the purpose of determining whether unfair claim settlement practices have been committed. If it is found, after notice and an opportunity to be heard, that an insurance company has violated this section, each instance of noncompliance may be treated as a separate violation and shall be considered sufficient cause for the suspension or revocation of the company’s certificate of authority

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Sec. 247 lists the grounds which are sufficient cause for the suspension or revocation of the insurer’s certificate of authority [Sec. 247(c)]. C.2. PRESCRIPTION OF ACTION In the absence of an express stipulation in the policy, it being based on a written contract, the action prescribes in ten years [Article 1144, Civil Code]. However, the parties may validly agree on a shorter period provided it is not less than one year from the time the cause of action accrues [Sec 63]. In compulsory motor vehicle insurance, the action prescribes in one year from the denial of the claim [Sec. 397] C.3. SUBROGATION Subrogation is a process of legal substitution. The insurer, after paying the amount covered by the insurance policy, steps into the shoes of the insured and avails himself of the latter's rights that exist against the wrongdoer at the time of loss. The insurer becomes entitled to recover from the wrongdoer the amount of the loss it may have paid to the insured. The Right of Subrogation stems from Art. 2207 of the Civil Code. Note:Subrogation applies only to property insurance and non-life insurance. C.3.A. RIGHTS TRANSFERRED The subrogee-insurer cannot acquire any claim, Security, or remedy the subrogor did not have (or a greater claim than the original insured). In other words, a subrogee cannot succeed to a right not possessed by the subrogor. A subrogee can recover only if the insured likewise could have recovered. [Sulpicio Lines, Inc. v. First Lepanto-Taisho Ins. Corp. G.R. No. 140349 (2005)] The insured can no longer recover from the offended party what was paid to him by the insurer but he can recover any deficiency if the damages suffered are more than what

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was paid. The deficiency is not covered by the right of subrogation. The insurer must present the policy as evidence to determine the extent of its coverage. [Wallem Phil. Shipping v. Prudential GuaranteeG.R. No. 152158 (2003)] C.3.B. W HEN THERE IS NO RIGHT OF SUBROGATION (1) Where the insured by his own act releases the wrongdoer or third party liable for the loss or damage; (2) Where the insurer pays the insured the value of the loss without notifying the carrier who has in good faith settled the insured’s claim for loss; (3) Where the insurer pays the insured for a loss or risk not covered by the policy [Pan Malayan Ins. Co. v. CA, G.R. No. 81026(1990)];

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IX. Insurance Commissioner A. JURISDICTION AND ADJUDICATORY POWERS The Insurance Commissioner has the power to adjudicate disputes relating to an insurance company’s liability to an insured under a policy. [Sec. 437] A complaint or claim filed with such official is considered an “action” or “suit” the filing of which would have the effect of tolling the suspending the running of the prescriptive period. (1) Concurrent jurisdiction (with regular civil courts) over cases where any single claim does not exceed P5,000,000 involving liability arising from: (a) Insurance contract; (b) Contract of suretyship;

(4) In life insurance;

(c) Reinsurance contract;

(5) For recovery of loss in excess of insurance coverage [De Leon (2014)]. The right of subrogation is not dependent upon, nor does it grow out of, any privity of contract or upon written assignment of claim. It accrues simply upon payment of the insurance claim by the insurer [Pan Malayan Ins. Co v. CA, G.R. No. 81026 (1990)]. Since the insurer can be subrogated to only such rights as the insured may have, should the insured, after receiving payment from the insurer, release the wrongdoer who caused the loss, the insurer loses his rights against the latter. But in such a case, the insurer will be entitled to recover from the insured whatever it has paid to the latter, unless the release was made with the consent of the insurer [Manila Mahogany v. CA G.R. No. L52576 (1987)].

(d) Membership certificate issued by members of mutual benefit association [Sec 439]; (2) Primary and exclusive jurisdiction over claims for benefits involving pre-need plans where the amount of benefits does not exceed P100,000 [Sec. 55, RA 9829]. For the purpose of proceeding under its adjudicatory powers under the Insurance Code, the Commissioner or any officer thereof designated by him, is empowered to administer oaths and affirmation, subpoena witnesses, compel their attendance, take evidence and require the production of any books, papers, documents or contracts or other records which are relevant or material to the inquiry [Sec 439]. Note: However, the Insurance Commission has no jurisdiction to decide the legality of a contract of agency entered into between an insurance company and its agent. The same is not covered by the term “doing or transacting insurance business” under Sec 2, neither is it covered by Sec 439, which grants the Commissioner adjudicatory powers [Sundiang and Aquino (2013)].

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B. REVOCATION OF CERTIFICATE OF AUTHORITY

C. LIQUIDATION COMPANY

The Certificate of Authority issued to the domestic or foreign company by the Commission may be revoked or suspended by the Insurance Commissioner for any of the following grounds:

If the company is determined by the Commissioner to be insolvent or cannot resume business, he shall, if public interest requires, order its liquidation [Sec 256].

(1) The company is in an unsound condition; (2) That it has failed to comply with the provisions of law or regulations obligatory upon it; (3) That its condition or method of business is such as to render its proceedings hazardous to the public or its policyholders;

OF

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This should be distinguished from a situation where a conservator is appointed when the Commissioner finds that a company is in a state of continuing inability or unwillingness to maintain a condition of solvency or liquidity adequate to protect the policyholders and creditors. The conservator will take charge of the management of the insurance company [Sec 255].

(4) That its paid-up capital stock, in the case of a domestic stock corporation, or its available cash assets, in the case of a domestic mutual company, or its Security deposits, in the case of a foreign company, is impaired or deficient; (5) That the margin of solvency required of such company is deficient. [Sec. 254] The Commissioner is authorized to suspend or revoke all certificates of authority granted to such insurance company, its officers and agents, and no new business shall thereafter be done by such company or for such company by its agents in the Philippines while such suspension, revocation, or disability continues or until its authority to do business is restored by the Commissioner. [Sec. 254] Before restoring such authority, the Commissioner shall require the company concerned to submit to him a business plan showing the company’s estimated receipts and disbursements, as well as the basis therefor, for the next succeeding three years. [Sec. 254]

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I. Common Carriers

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Common carriers are:

(Reference is to the Civil Code, unless otherwise indicated)

(1) Persons, corporations, associations;

firms

or

(2) Engaged in the business of carrying or transporting;

A. CONCEPT

(3) Passengers or goods or both;

A contract of transportation is one whereby a certain person or association of persons obligate themselves to transport persons, things, or news from one to another for a fixed price.

(4) By land, water, or air;

Parties to the contract:

Art. 1732 makes no distinction:

(1) Shipper - one who gives rise to the contract of transportation by agreeing to deliver the things or news to be transported, or to present his own person or those of other or others in the case of transportation of passengers.

(1) Between one whose principal business activity is the carrying of persons or goods or both, and one who does such carrying only as an ancillary activity [Fabre v. CA (1996)];

(2) Carrier or conductor - one who binds himself to transport person, things, or news, as the case may be, or one employed in or engaged in the business of carrying good for others for hire. (3) Consignee - the party to whom the carrier is to deliver the things being transported; to whom the carrier may lawfully make delivery in accordance with its contract of carriage. The shipper and the consignee may be the same person. Carriers are persons or corporations who undertake to transport or convey goods, property or persons, from one place to another, gratuitously or for hire, and are classified as: (1) Private or special carriers, who transport or undertake to transport in a particular instance for hire or reward [Agbayani, Commercial Laws of the Philippines (1987)]; and (2) Common or public carriers, defined in Art. 1732.

(5) For compensation; (6) Offering their services to the public [Art. 1732].

(2) Between a person or enterprise offering transportation service on a regular or scheduled basis and one offering such service on an occasional, episodic, or unscheduled basis [Loadstar Shipping Co., Inc. v. CA (1999)]; (3) Between a carrier offering its services to the general public and one who offers services or solicits business only from a narrow segment of the general population [De Guzman v. CA (1988)]. The true test for a common carrier is not the quantity or extent of the business actually transacted, or the number and character of the conveyances used in the activity, but whether the undertaking is a part of the activity engaged in by the carrier that he has held out to the general public as his business or occupation. If the undertaking is a single transaction, not a part of the general business or occupation engaged in, as advertised and held out to the general public, the individual or the entity rendering such service is a private, not a common, carrier. The question must be determined by the character of the business actually carried on by the carrier, not by any secret intention or mental reservation it may entertain or assert when charged with the

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duties and obligations that the law imposes [Teodoro v. Nicolas (2012)]. A common carrier need not have fixed and publicly known routes. Neither does it have to maintain terminals or issue tickets [Asia Lighterage and Shipping v. CA (2003)]. One engaged in the business of transporting petroleum products from refineries via pipeline is a common carrier. It is engaged in the business of transporting or carrying goods, i.e., petroleum products, for hire as a public employment. It undertakes to carry for all persons indifferently, that is, to all persons who choose to employ its services, and transports the goods by land and for compensation. The fact that it has a limited clientele does not exclude it from the definition of a common carrier [First Phil. Industrial v. CA (1998)]. A travel agency is not a common carrier. It is not an entity engaged in the business of transporting either passengers or goods and is therefore neither a private nor a common carrier. Its covenant with its customers is simply to make travel arrangements on their behalf [Crisostomo v. CA (2003)].

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Common carrier

Private carrier

Governing law Civil Code; Code of Commerce and special laws, if not regulated by the Civil Code (Art. 1766); law of the country to which the goods are to be transported, if regarding liability for loss, destruction, or deterioration of goods

Law on obligations and contracts

Regulation A public service, therefore subject to provisions governing common carriers and public utilities.

Not subject to regulation as a common carrier

It is not necessary that the carrier be issued a certificate of public convenience [Loadstar Shipping Co., Inc. v. CA (1999)]. Kabit system:

Common carrier

Private carrier

(1) It is an arrangement whereby a person who has been granted a certificate of convenience allows another person who owns motor vehicles to operate under such franchise for a fee [Lita Enterprises, Inc. v. IAC (1984)].

Availability Holds himself out in common, that is, to all persons who choose to employ him, as ready to carry for hire

Agrees in some special case with some private individual to carry for hire

Binding effect Bound to carry all who offer and tender reasonable compensation for carrying them

Not bound to carry for any reason, such goods as it is accustomed to carry, unless it enters into a special agreement to do so

Diligence required Extraordinary

Ordinary

(2) It is invariably recognized as being contrary to public policy and therefore void and inexistent under Art. 1409. Thus, for the safety of passengers and the public, the registered owner of the vehicle is not allowed to prove that another person has become the owner so that he may be thereby relieved of responsibility [Lim v. CA (2002)]. (3) One of the primary factors considered in the granting of a certificate of public convenience for the business of public transportation is the financial capacity

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of the holder of the license, so that liabilities arising from accidents may be duly compensated. The kabit system renders illusory such purpose and, worse, may still be availed of by the grantee to escape civil liability caused by a negligent use of a vehicle owned by another and operated under his license. [Dizon v. Octavio (1955)]. (4) However, one who has availed of the kabit system is not precluded from filing for damages against another who caused the injury, as the policy against the kabit system will not be defeated by giving such person standing to sue. [Lim v CA (2002)] Uber/Grab: Transport Network Company or TNC is defined as an organization whether a corporation, partnership, or sole proprietorship, that provides pre-arranged transportation services for compensation using an internet-based technology application or a digital platform technology to connect passengers with drivers using their personal vehicles [DOTC D.O. No. 2015-011]. e.g. Uber and Grab. The TNC may or may not have been granted a Certificate of Public Convenience (CPC). If it is a holder of a valid and current CPC, it is known as a common carrier. Otherwise, it is classified as a land transportation service contractor. The Partners (owners of the vehicles used in transporting passengers) forming part of the network of a TNC, may or may not be a common carrier, depending on whether the Partner(s) itself/themselves are holders of a CPC. A mere Accreditation given by LTFRB is not an equivalent to a CPC and will not make said holder a common carrier. If the Partner is a holder of a CPC, said Partner is a common carrier. However, if the Partner is not a holder of a CPC, said Partner is merely a land transportation service contractor [BIR RMC 70-2015].

MERCANTILE LAW

Note: Please be guided requirements under Art. 1732.

by

the

B. DILIGENCE REQUIRED B.1. STANDARD OF DILIGENCE Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence, according to all the circumstances of each case: (1) In the vigilance over the goods; and (2) For the safety of the passengers transported by them [Art. 1733]. Extraordinary diligence in the vigilance over the goods is expressed in Arts 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in Art.s 1755 and 1756. As stated in Art. 1733, extraordinary diligence is required because of the (1) nature of the business of common carriers and (2) for reasons of public policy. Extraordinary diligence: (1) Requires rendering service with the greatest skill and utmost foresight [Agbayani (1987)]; (2) Requires carrying passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances [Art. 1755]; (3) Does not require common carriers to exercise all the care, skill, and diligence of which the human mind can conceive, nor such as will free the transportation of passengers from all possible perils. Note: A common carrier is not an insurer of the safety of its passengers and is not bound absolutely and at all events to carry them safely and without injury [Yobido v. CA (1997)].

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B.2. PRESUMPTION OF NEGLIGENCE The mere proof of delivery of goods in good order to a carrier, and of their arrival at the place of destination in bad order, makes out a prima facie case against the carrier, so that if no explanation is given as to how the injury occurred, the carrier must be held responsible. It is incumbent upon the carrier to prove that the loss was due to accident or some other circumstance inconsistent with its liability [Ynchausti Steamship v. Dexter and Unson (1920)]. Note: While delay in the delivery of goods is a breach of contract of carriage, it does not raise the presumption of negligence because the goods are not lost, deteriorated, or destroyed [see Art. 1735]. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in Arts 1733 and 1755 [Art. 1756]. Note: Mere failure to reach one’s destination, without injury or death, does not raise the presumption of negligence because it does not involve safety of the passengers.

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II. Vigilance over Goods A. LIABILITY, IN GENERAL The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration [Art. 1753]. Under Philippine law, the liability of the common carrier with respect to vigilance over goods, in general, are as follows: (1) Common carriers are responsible for the loss, destruction, or deterioration of the goods [Art. 1734]. In fact, they are liable even in those cases where the cause of the loss or damage is unknown [Agbayani (1987)]. (2) Moreover, if the goods are lost, destroyed, or deteriorated, common carriers are presumed to have been at fault or to have acted negligently [Art. 1735]. Note: Two-pronged determining liability:

analysis

in

(1) Whether or not the cause of the loss, destruction, or deterioration is included under Art. 1734;

C. LIABILITIES The obligation of the common carrier consists in the transportation of passengers or goods or both [Art. 1732].

(2) If not, whether or not the common carrier exercised extraordinary diligence.

The liabilities of a common carrier arises from a contract of carriage. Thus, the cause of action, when there is failure on its part to exert extraordinary diligence according to all circumstances, is for breach of contract [Isaac v. A.L. Ammen (1957)].

B. EXEMPTING CAUSES

In what follows, these liabilities in case of breach, both with respect to vigilance over the goods and safety of the passengers transported, will be discussed.

Exception: The same is due to any of the following causes only:

General Rule: Common carriers are responsible for the loss, destruction, or deterioration of the goods

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity; (2) Act of the public enemy in war, whether international or civil;

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(3) Act of omission of the shipper or owner of the goods; (4) The character of the goods or defects in the packing or in the containers; (5) Order or act of competent public authority [Art. 1734]. In all other cases of loss, destruction, or deterioration, the common carrier is presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence [Art. 1735]. Thus, in De Guzman v. CA (1988), it was held that hijacking, not being included in Art. 1734, must be dealt with under the provisions of Art. 1735, and thus, the common carrier is presumed to have been at fault or negligent.

MERCANTILE LAW

occurrence of the natural disaster, for it to be exempt from liability under the law for the loss of the goods [Art. 1739]. Fire may not be considered a natural disaster or calamity. This must be so as it arises almost invariably from some act of man or by human means. It does not fall within the category of an act of God unless caused by lightning or by other natural disaster or calamity. It may even be caused by the actual fault or privity of the carrier [Eastern Shipping Lines v. IAC (1987)]. Note: If the common carrier negligently incurs in delay in transporting the goods, a natural disaster shall not free such carrier from responsibility [Art. 1740]. B.2. ACT OF PUBLIC ENEMY Requisites:

B.1. NATURAL DISASTER OR CALAMITY Requisites: (1) The natural disaster must have been the proximate and only cause of the loss; (2) The common carrier must exercise due diligence to prevent or minimize the loss before, during and after the occurrence of the flood, storm or natural disaster [Art. 1739]; (3) The common carrier must not have negligently incurred delay [Art. 1740]; In order that a common carrier may be absolved from liability where the loss, destruction or deterioration of the goods is due to a natural disaster or calamity, it must be shown that such natural disaster or calamity was the proximate and only cause of the loss; there must be an entire exclusion of human agency from the cause of the injury of the loss [Philippine American General Insurance Co., Inc. v. MGG Marine Services, Inc. (2002)]. Moreover, even in cases where a natural disaster is the proximate and only cause of the loss, a common carrier is still required to exercise due diligence to prevent or minimize loss before, during and after the

(1) The act of the public enemy was committed either in an international or civil war [Art. 1734]; (2) The act of the public enemy must have been the proximate and only cause; (3) The common carrier must exercise due diligence to prevent or minimize the loss before, during and after the act of the public enemy causing the loss, destruction or deterioration of the goods [Art. 1739]. B.3. ACT OR OMISSION OF SHIPPER OR OWNER The act or omission of the shipper must have been the proximate and only cause of the loss, destruction, or deterioration of the goods. If the shipper or owner merely contributed to the loss, destruction or deterioration of the goods, the proximate cause being the negligence of the common carrier, the latter shall be liable for the damages, which shall, however, be equitably reduced [Art. 1741].

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B.4. CHARACTER OF THE GOODS

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A fortuitous event has the following characteristics:

Requisites: (1) The loss, destruction, or deterioration of the goods is due to the character of the goods or defects in the packing or in the containers [Art. 1739]; (2) The common carrier must exercise due diligence to forestall or lessen the loss [Art. 1741]. If the fact of improper packing is known to the carrier or its servants or apparent upon ordinary observation, but it accepts the goods notwithstanding such condition, it is not relieved of liability for loss or injury resulting therefrom [Southern Lines v. CA (1962)]. B.5. ORDER OF COMPETENT AUTHORITY Requisites: (1) There must be an order or act of competent public authority through which the goods are seized or destroyed [Art. 1734]; (2) The said public authority must have had the power to issue the order [Art. 1743]. The intervention of the municipal officials was not of a character that would render impossible the fulfillment by the carrier of the obligation. A carrier is not duty bound to obey an illegal order (of a mayor) to dump into the sea the scrap iron. There is absence of sufficient proof that the issuance of the order was attended with such force or intimidation as to completely overpower the will of the carrier’s employees [Ganzon v. CA (1988)). B.6. FORCE MAJEURE Force majeure – in general, has also been invoked as an exempting cause based on Art. 1174, which states that no person shall be responsible for a fortuitous event which could not be foreseen, or which, though foreseen, was inevitable.

(1) The cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply with his obligations, must be independent of human will; (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid; (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (4) The obligor must be free from any participation in the aggravation of the injury resulting to the creditor. There must be an entire exclusion of human agency from the cause of injury or loss. Moreover, a common carrier may not be absolved from liability in case of force majeure or fortuitous event alone. The common carrier must still prove that it was not negligent in causing the death or injury resulting from an accident [Yobido v. CA (1997)]. Loss of a ship and of its cargo, in a wreck due to accident or force majeure must, as a general rule, fall upon their respective owners, except in cases where the wrecking or stranding of the vessel occurred through the malice, carelessness, or lack of skill on the part of the captain or because the vessel put to sea is insufficiently repaired and prepared. In order that the exemption due to force majeure would apply, the carrier must prove that the loss or destruction of the merchandise was due to accident and force majeure and not to fraud, fault, or negligence on the part of the captain or owner of the ship [Tan Chiong Sian v. Inchausti (1912)].

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C. CONTRIBUTORY NEGLIGENCE The liability of the common carrier shall be equitably reduced when the loss, destruction, or deterioration of the goods when: (1) The negligence of the common carrier was the proximate cause thereof; and (2) The shipper or owner merely contributed to such loss, destruction, or deterioration [Art. 1741].

D. DURATION OF EXTRAORDINARY RESPONSIB ILITY FOR GOODS The responsibility to exercise extraordinary diligence begins from the time the goods are unconditionally placed in the possession of and received by the carrier for transportation [Art. 1736]. The carrier’s responsibility terminates in any of the following cases: (1) When the goods are delivered actually or constructively by the carrier to the consignee or to the person who has a right to receive them [Art. 1736]; (2) When the goods are temporarily unloaded or stored in transit by reason of the exercise of the shipper or owner of his right of stoppage in transitu; (3) When the consignee has been advised of the arrival of the goods at the place of destination and has had reasonable opportunity to remove them or dispose of them from the warehouse of the carrier at the place of destination [Art. 1738]. In dealing with the contract of common carriage of passengers, for purpose of accuracy, there are two (2) aspects of the same, namely: (a) contract ‘to carry (at some future time),’ which contract is consensual and is necessarily perfected by mere consent; and (b) contract ‘of carriage’ or ‘of common carriage,’ which should be considered as a real contract for not until the carrier is

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actually used can the carrier be said to have already assumed the obligation of a carrier [Paras, Civil Code Annotated, 11th Ed]. Note: The distinction is important in determining when the common carrier is required to exercise extraordinary responsibility. The birth of the contract is not necessarily the birth of the duty to exercise extraordinary responsibility. D.1. DELIVERY OF GOODS TO COMMON CARRIERS Under Art. 1736, delivery means unconditionally placing the goods in the possession of the carrier and the carrier receiving them for transportation. Thus, if the common carrier received the goods not for transportation but only for safekeeping, then the duty of extraordinary diligence has not yet started. Unconditionally placing the goods in the possession of the carrier means the shipper cannot get them back from the common carrier at will. The liability of the carrier as common carrier begins with the actual delivery of the goods for transportation and not merely with the formal execution of a receipt or bill of lading; the issuance of a bill of lading is not necessary to complete delivery and acceptance. Even where it is provided by statute that liability commences with the issuance of the bill of lading actual delivery and acceptance are sufficient to bind the carrier [Cia. Maritima v. Ins. Co. of North America (1964)]. D.2. ACTUAL/CONSTRUCTIVE DELIVERY The extraordinary responsibility of the common carrier ends when, subject to Art. 1738, the goods are delivered actually or constructively by the carrier to: (1) The consignee; or (2) The person who has a right to receive them (Art. 1736), such as agents, brokers, and the like.

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Art. 1738 provides that the extraordinary liability of the common carrier continues to be operative even during the time the goods are stored in a warehouse of the carrier at the place of destination, until the consignee has: (1) Been advised of the arrival of the goods; and (2) Had reasonable opportunity thereafter to remove them or otherwise dispose of them. Delivery of the cargo to the customs authorities is not delivery to the consignee or “to the person who has a right to receive them” as contemplated in Art. 1736 because in such case the goods are still in the hands of the government and the owner cannot exercise dominion over them. However, the parties may agree to limit the liability of the carrier considering that the goods still have to go through the inspection of the customs authorities before they are actually turned over to the consignee. This stipulation is not contrary to morals or public policy. This is a situation where it may be said that the carrier loses control of the goods because of a custom regulation and it is unfair that it be made responsible for what may happen during the interregnum [Lu Do v. Binamira (1957)]. D.3. TEMPORARY STORAGE

UNLOADING

OR

The common carrier’s duty to observe extraordinary diligence over the goods remains in full force and effect even when they are temporarily unloaded or stored in transit, unless the shipper or owner has made use of the right of stoppage in transitu [Art. 1737]. General rule: Extraordinary diligence over the goods remains even when the goods are temporarily unloaded or stored in transit. Exception: The duty to observe such diligence ceases when shipper or owner made use of the right of stoppage in transitu.

MERCANTILE LAW

Stoppage in transitu is the act by which the unpaid vendor of goods stops their progress and resumes possession of them constructively while they are in the course of transit from him to the purchaser, and not yet actually delivered to the latter [Agbayani (1987)]. Basis: Under Art. 1530, when the buyer of the goods becomes insolvent, the unpaid seller who has parted with the possession of the goods at any time while they are in transit, may resume the possession of the goods as he would have had if he had never parted with the possession. When the right of stoppage in transitu is exercised, the common carrier holds the goods in the capacity of an ordinary bailee or warehouseman upon the theory that the exercise of the right of stoppage in transitu terminates the contract of carriage. Hence, only ordinary diligence is required [Agbayani (1987)].

E. STIPULATION FOR LIMITATION OF LIABILITY There are two possible stipulations limiting the liability of the common carrier: (1) Stipulation limiting the common carrier’s liability as to the diligence required; and (2) Stipulation limiting the common carrier’s liability as to the amount of liability. An agreement limiting the common carrier’s liability for delay on account of strikes or riots is also valid [Art. 1748]. E.1. AS TO DILIGENCE REQUIRED A stipulation between the common carrier and the shipper or owner limiting the liability of the former for the loss, destruction, or deterioration of the goods to a degree less than extraordinary diligence shall be valid, provided it be:

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(1) In writing, signed by the shipper or owner; (2) Supported by a valuable consideration other than the service rendered by the common carrier; and (3) Reasonable, just and not contrary to public policy [Art. 1744]. Any of the following or similar stipulations shall be considered unreasonable, unjust and contrary to public policy: (1) That the goods are transported at the risk of the owner or shipper; (2) That the common carrier will not be liable for any loss, destruction, or deterioration of the goods; (3) That the common carrier need not observe any diligence in the custody of the goods; (4) That the common carrier shall exercise a degree of diligence less than that of a good father of a family, or of a man of ordinary prudence in the vigilance over the movables transported; (5) That the common carrier shall not be responsible for the acts or omission of his or its employees; (6) That the common carrier’s liability for acts committed by thieves, or of robbers who do not act with grave or irresistible threat, violence or force, is dispensed with or diminished; (7) That the common carrier is not responsible for the loss, destruction, or deterioration of goods on account of the defective condition of the car, vehicle, ship, airplane or other equipment used in the contract of carriage [Art. 1745]. The following stipulations are also void: (1) Stipulation exempting the common carrier from any and all liability for loss or damage occasioned by its own negligence;

MERCANTILE LAW

(2) Stipulation providing for an unqualified limitation of such liability to an agreed stipulation [Heacock v. Macondray (1921)]. E.2. LIMITATION OF LIABILITY TO FIXED AMOUNT A stipulation that the common carrier’s liability is limited to the value of the goods appearing in the bill of lading, unless the shipper or owner declares a greater value, is binding [Art. 1749]. A contract fixing the sum that may be recovered by the owner or shipper for the loss, destruction or deterioration of the goods is valid if: (1) It is reasonable and just under the circumstances; and (2) It has been fairly and freely agreed upon [Art. 1750]. While a passenger may not have signed the plane ticket, he is nevertheless bound by the provision thereof; such provisions have been held to be part of the contract of carriage and valid and binding upon the passenger regardless of the latter’s lack of knowledge or assent to the regulation. It is what is known as a contract of adhesion wherein one party imposes a ready-made form of contract on the other. The one who adheres to the contract is in reality free to reject it entirely. A contract limiting liability upon an agreed valuation does not offend against the policy of the law forbidding one from contracting against his own negligence [Ong Yiu v. CA (1979)]. [However], the fact that the conditions are printed at the back of the ticket stub in letters so small that they are hard to read would not warrant the presumption that the [shipper] was aware of those conditions such that he had “fairly and freely agreed” to those conditions [Shewaram v. PAL (1966)].

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Factors Affecting Agreement The effect of these stipulations is subject to the following provisions: (1) An agreement limiting the common carrier’s liability may be annulled by the shipper or owner if the common carrier refused to carry the goods unless the former agreed to such stipulation [Art. 1746]. (2) If the common carrier, without just cause, delays the transportation of the goods or changes the stipulated or usual route, the contract limiting the common carrier’s liability cannot be availed of in case of the loss, destruction, or deterioration of the goods [Art. 1747]. The limitation may be availed of if the delay or change of route was due to a just cause. (3) The fact that the common carrier has no competitor along the line or route, or a part thereof, to which the contract refers shall be taken into consideration on the question of whether or not a stipulation limiting the common carrier’s liability is reasonable, just and in consonance with public policy [Art. 1751]. (4) Even when there is an agreement limiting the liability of the common carrier in the vigilance over the goods, the common carrier is disputably presumed to have been negligent in case of their loss, destruction or deterioration [Art. 1752]. E.3. LIMITATION OF LIABILITY IN ABSENCE OF DECLARATION OF GREATER VALUE A stipulation that the common carrier’s liability is limited to the value of the goods appearing in the bill of lading, unless the shipper or owner declares a greater value, is binding [Art. 1749].

F. LIABILITY PASSENGERS

MERCANTILE LAW

FOR

BAGGAGE

OF

Baggage are things that a passenger will bring with him consistent with a temporary absence from where he lives. Passenger’s baggage must have a direct relationship with the passenger who is traveling. For instance, a balikbayan box or suitcase is passenger’s baggage. However, 10,000 cans of corned beef is not considered as passenger baggage. They are considered as goods. They are not part of the contract of carriage [of passenger]. A separate contract of carriage [or bill of lading] must be entered into in order to transport them. These goods will then be transported whether or not a person is physically traveling with them [Agbayani (1987)]. There are two kinds of passenger’s baggage, which are governed differently: (1) Passenger baggage in the custody of the passenger (or carry-on luggage); and (2) Passenger baggage not in the custody of the passenger (or checked-in luggage). The liability is greater for baggage that is in the custody of the carrier, or checked-in baggage, as compared to those in the possession of the passenger. F.1. CHECKED-IN BAGGAGE The provisions of Arts 1733-1753 shall apply to passenger’s baggage which is not in his personal custody or in that of his employee [Art. 1754]. In other words, the rules governing the responsibility of a common carrier in the transportation of goods just discussed apply. Thus, extraordinary diligence is required.

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POSSESSION

OF

As to baggage other than checked-in baggage, they are governed by Arts 1998, and 2000-2003, concerning the responsibility of hotel-keepers [Art. 1754]. Art. 1998, as applied by analogy, the baggage of passengers in their personal custody or in that of their employees, while being transported, are regarded as necessary deposits. The common carriers are responsible as depositaries, provided that: (1) Notice was given to them, or to their employees, of the effects brought by the passengers; and (2) The passengers take the precautions which the common carrier advised relative to the care and vigilance of their baggage.

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The following provisions also figure in determining the liability of the common carrier: (1) The fact that passengers are constrained to rely on the vigilance of the common carrier shall be considered in determining the degree of care required of him [Art. 2000). (2) The common carrier cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles brought by the passenger. (3) Any stipulation whereby the responsibility of the common carrier as set forth in Articles 1998-2001 is suppressed or diminished shall be void [Art. 2003].

In case of loss or injury to the baggage of passengers in their personal custody, or in that of their employees, while being transported, the carrier is liable if the loss or injury is caused by: (1) His servants; (2) His employees; (3) Strangers [Art. 2000]; or (4) A thief or robber done without the use of arms or irresistible force [Art. 2001]. The carrier is not liable if loss or injury is caused by: (1) Force majeure [Art. 2000); (2) Theft or robbery with the use of arms or irresistible force [Art. 2001); (3) The acts of the passenger, his family, servants, or visitors; (4) The character of the baggage [Art. 2002).

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III. Safety of Passengers

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stipulation limiting the common carrier’s liability for willful acts or gross negligence is invalid. The reduction of fare does not justify any limitation of the common carrier’s liability [Art. 1758].

A. LIABILITY, IN GENERAL Under Philippine law, the liability of the common carrier with respect to the safety of passengers, in general, are as follows: (1) A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances [Art. 1755]. (2) In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence [Art. 1756]. Note: It is not enough that the accident was caused by force majeure, the common carrier must still prove that it was not negligent in causing the injuries resulting from such accident. [Bachelor Express v. CA (1990)] Bachelor Express illustrates that force majeure is not itself a defense; the exercise of the diligence required by law is the defense.

C. DURATION OF LIABILITY As in the contract of carriage for goods, the perfection of the contract of carriage of passengers does not necessarily coincide with the commencement of the duty of extraordinary diligence. It may occur at the same time or later. Based on jurisprudence, the duty that the carrier of passengers owes to its patrons extends to persons boarding the cars as well as those alighting therefrom [Del Prado v. Manila Railroad (1929)]. This is also reflected in Art. 17, Warsaw Convention, which applies to international air carriage. It provides that the liability of a common carrier for injury to the passenger lasts from embarkation to disembarkation, including the period when the passenger is on board the aircraft. In maritime commerce, Art. 698, Code of Commerce relates to the period of the voyage: (1) In case a voyage already begun should be interrupted:

B. VOID STIPULATIONS

(a) The passengers shall be obliged to pay the fare in proportion to the distance covered; and

General rule: The responsibility of a common carrier for the safety of passengers cannot be dispensed with or lessened by stipulation by the posting of notices, by statements on tickets, or otherwise [Art. 1757]. Exception: When a passenger is carried gratuitously, a stipulation limiting the common carrier’s liability for negligence is valid.

(b) If the interruption is due to a fortuitous event, without right to recover for losses and damages; if caused by the captain exclusively, with a right to indemnity. (2) If the interruption should be caused by the disability of the vessel, and a passenger should agree to await the repairs:

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(a) He may not be required to pay any increased price of passage; but (b) His living expenses during the stay shall be for his own account. (3) In case of delay in the departure of the vessel, the passengers have: (a) The right to remain on board; (b) If the delay is not due to a fortuitous event or force majeure, with the right to be furnished with food for the account of the vessel; (c) If the delay should exceed ten days: (i) Passengers requesting the same shall be entitled to the return of the fare; and (ii) If it is due exclusively to the fault of the captain or ship agent, they may also demand indemnity for losses and damages. A vessel exclusively devoted to the transportation of passengers must take them directly to the port or ports of destination, no matter what the number of passengers may be, making all the stops indicated in its itinerary. C.1. WAITING FOR CARRIER BOARDING OF CARRIER

OR

As to the commencement of the duty of the common carrier, in Del Prado v. Manila Railroad (1929), it was held that the duty extends to persons boarding the cars as well as those alighting therefrom. Thus, it is the duty of common carriers of passengers to stop their conveyances at a reasonable length of time in order to afford passengers an opportunity to board and enter, and they are liable for injuries suffered by boarding passengers resulting from the sudden starting up or jerking of their conveyances while they are doing so [Dangwa Transportation v. CA (1991)].

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In this connection, however, a person boarding a moving car must be taken to assume the risk of injury from boarding the car under the conditions open to his view, but he cannot fairly be held to assume the risk that the motorman, having the situation in view, will increase the peril by accelerating the speed of the car before he is planted safely on the platform [Del Prado v. Manila Railroad (1929)]. C.2. ARRIVAL AT DESTINATION As to the termination of the duty of the common carrier, it has been held that the relation of carrier and passenger does not cease at the moment the passenger alights from the carrier’s vehicle at a place selected by the carrier at the point of destination, but continues until the passenger has had a reasonable time or a reasonable opportunity to leave the carrier’s premises. What is a reasonable time or a reasonable delay within this rule is to be determined from all the circumstances: (1) A person who, after alighting from a train, walks along the station platform is considered still a passenger; (2) A passenger, who has alighted at his destination and is proceeding by the usual way to leave the company’s premises, but before actually doing so is halted by the report that his brother, a fellow passenger, has been shot, and he in good faith and without intent of engaging in the difficulty, returns to relieve his brother, is deemed reasonably and necessarily delayed and thus continues to be a passenger entitled as such to the protection of the railroad and company and its agents [La Mallorca v. CA (1966)]. The reasonableness of time should be made to depend on the attending circumstances of the case, such as the kind of common carrier, the nature of its business, the customs of the place, and so forth, and therefore precludes a consideration of the time element per se without taking into account such other factors. The primary

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factor to be considered is the existence of a reasonable cause as will justify the presence of the victim on or near the petitioner’s vessel.

This liability does not cease even upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees [Art. 1759].

In the case of a shipper, the passengers of vessels are allotted a longer period of time to disembark from the ship than other common carriers such as a passenger bus, since such vessels are capable of accommodating a bigger volume of both passenger and baggage as compared to the capacity of a regular commuter bus. Consequently, a ship passenger will need at least an hour as is the usual practice, to disembark from the vessel and claim his baggage whereas a bus passenger can easily get off the bus and retrieve his luggage in a very short period of time [Aboitiz Shipping v. CA (1989)].

Also, this liability cannot be eliminated or limited by stipulation, by the posting of notices, by statements on the tickets or otherwise [Art. 1760].

The relation of carrier and passenger continues until the latter has been landed at the port of destination and has left the carrier’s premises. Hence, the carrier necessarily would still have to exercise extraordinary diligence in safeguarding the comfort, convenience and safety of its stranded passengers until they have reached their final destination [PAL v. CA (1993)]. Note: Despite the Court’s pronouncement in PAL v. CA, note that common carriers are bound to observe extraordinary diligence in the ‘safety’ of its passengers. The law does not mention the words ‘comfort’ and ‘convenience.’

D. LIABILITY FOR ACTS OF OTHERS D.1. EMPLOYEES Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former’s employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers.

Ratio: The servant is clothed with delegated authority and charged with the duty to execute the carrier’s undertaking to carry the passenger safely [Agbayani (1987)]. Also, the defense of diligence in the selection and supervision of employees does not obtain because the liability is not based on quasi-delict, but on culpa contractual. However, there must be a reasonable connection between the act and the contract of carriage. Note: The employee must be on duty at the time of the act. It is enough that the assault happens within the course of the employee’s duty. It is no defense for the carrier that the act was done in excess of authority or in disobedience of the carrier’s orders. The carrier’s liability here is absolute in the sense that it practically secures the passengers from assaults committed by its own employees [Maranan v. Perez (1967)]. D.2. OTHER STRANGERS

PASSENGERS

AND

A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carrier’s employees through the exercise of the diligence of a good father of a fam ily could have prevented or stopped the act or omission [Art. 1763]. Note: The law speaks of injuries suffered by the passenger but not death. However, there appears to be no reason why the common carrier should not be held liable under such circumstances. The word “injuries” should be interpreted to include death [Agbayani (1987)].

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Under Art. 1763, a tort committed by a stranger which causes injury to a passenger does not accord the latter a cause of action against the carrier. The negligence for which a common carrier is held responsible is the negligent omission by the carrier’s employees to prevent the tort from being committed when the same could have been foreseen and prevented by them. Further, when the violation of the contract is due to the willful acts of strangers, as in the instant case, the degree of care essential to be exercised by the common carrier for the protection of its passenger is only that of a good father of a family [Pilapil v. CA (1989)].

It is negligence per se for a passenger on a railroad to voluntarily or inadvertently protrude his arm, hand, elbow, or any other part of his body through the window of a moving car beyond the outer edge of the window or outer surface of the car, so as to come in contact with objects or obstacles near the track; no recovery can be had for an injury which but for such negligence would not have been sustained [Isaac v. A. L. Ammen Transportation (1975)]. In this case, the negligence of the passenger was not contributory, but was the proximate cause of the injury. Hence, the common carrier was exempted from liability.

F. EXTENT DAMAGES

D.3. MANUFACTURERS OF EQUIPMENT While the carrier is not an insurer of the safety of the passengers, it should nevertheless be held answerable for the flaws of its equipment, if such flaws were discoverable. The rationale for the common carrier’s liability for manufacturing defects is the fact that the passenger has neither choice nor control over the carrier in the selection and use of the equipment and appliances in use by the carrier. Having no privity whatever with the manufacturer or vendor of the defective equipment, the passenger has no remedy against him [Necesito v. Paras (1958)].

MERCANTILE LAW

OF

LIABILITY

FOR

Damages recoverable from common carriers, both in cases of carriage of passengers and goods, shall be awarded in accordance with Title XVIII concerning Damages. Art. 2206, on liability, in case of death, for loss of earning capacity, support, and moral damages for mental anguish, shall also apply to the death of a passenger caused by the breach of contract by a common carrier [Art. 1764]. Thus, the damages recoverable are: (1) Actual or compensatory damages;

E. CONTRIBUTORY NEGLIGENCE

(2) Moral damages;

The passenger must observe the diligence of a good father of a family to avoid injury to himself [Art. 1762]. The contributory negligence of the passenger does not bar recovery of damages for his death or injuries, if the proximate cause thereof is the negligence of the common carrier, but the amount of damages shall be equitably reduced [Art. 1762].

(3) Exemplary damages; (4) Nominal, temperate, and liquidated damages; (5) Attorney’s fees. F.1. ACTUAL DAMAGES

OR

COMPENSATORY

Actual or compensatory damages refer to adequate compensation for such pecuniary loss suffered as duly proved (Art. 2199].

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Under Art. 2201, the liability for damages include:

(2) The common carrier acted in bad faith [Art. 2220];

(1) In case the common carrier acted in good faith:

(3) Death of a passenger resulted even in the absence of bad faith or fraud [Art. 2206].

(a) The natural and probable consequence of the breach of the obligation; and (b) Those which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted; (2) In case of fraud, bad faith, malice or wanton attitude, all damages which may be reasonably attributed to the non-performance of the obligation. In case of death, actual damages also include: (1) Loss of earning capacity, unless the deceased had no earning capacity at the time of death; and (2) Support for a period not exceeding five years [Art. 2206]. Note: Art. 2206 applies only in case of death of the passenger. In the absence of a showing that common carrier’s attention was called to the special circumstances requiring prompt delivery of a passenger’s luggage, the common carrier cannot be held liable for the cancellation of passenger’s contracts [for exhibition of films] as it could not have foreseen such an eventuality when it accepted the luggage for transit [Pan-Am World Airways v. IAC (1988)]. F.2. MORAL DAMAGES Moral damages, though incapable of pecuniary computation, if they are the proximate result of the common carrier’s wrongful act or omission, may be recovered [Art. 2217].

Bad faith contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose [Air France v. Carrascoso (1966)]. When it comes to contracts of common carriage, inattention and lack of care on the part of the carrier resulting in the failure of the passenger to be accommodated in the class contracted for amounts to bad faith or fraud which entitles the passenger to the award of moral damages in accordance with Art. 2220 [Ortigas v. Lufthansa (1975)]. Willful and deliberate overbooking on the part of the airline carrier constitutes bad faith. Under Section 3, Economic Regulations No. 7 of the Civil Aeronautics Board, overbooking, which does not exceed ten percent, is not considered as deliberate and therefore does not amount to bad faith [United Airlines v. CA (2001)]. F.3. EXEMPLARY DAMAGES In a contract of carriage, exemplary damages may be awarded if the common carrier acted in wanton, fraudulent, reckless, oppressive, or malevolent manner [Art. 2232]. Exemplary damages serves as an instrument to serve the ends of law and public policy by reshaping socially deleterious behaviors, specifically, in the case, to compel the common carrier to control their employees, to tame their reckless instincts, and to force them to take adequate care of human beings and their property [Mecenas v. CA].

In cases of breach of contract of carriage, moral damages may be recovered where: (1) The common carrier acted fraudulently;

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F.4. NOMINAL, TEMPERATE, LIQUIDATED DAMAGES

AND

Nominal dam ages are adjudicated in order that a right of the plaintiff, which has been violated by the defendant, may be vindicated or recognized, not for the purpose of indemnifying the plaintiff for any loss suffered by him [Art. 2221]. It may be awarded in case of breach of contract of carriage and in every case where any property right has been invaded [Art. 2222]. A violation of the passenger’s right to be treated with courtesy in accordance with the degree of diligence required by law to be exercised by every common carrier entitles the passenger to nominal damages [Saludo v. CA]. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty [Art. 2224]. Liquidated damages are those damages agreed upon by the parties to a contract, to be paid in case of breach thereof [Art. 2226]. F.5. ATTORNEY’S FEES Under Art. 2208, as applicable to a contract of carriage, attorney’s fees and expenses of litigation may be recovered in the following cases: (1) When exemplary damages are awarded; (2) When the common carrier’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) Where the common carrier acted in gross and evident bad faith in refusing to satisfy the plaintiff’s valid, just and demandable claim; (4) In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered.

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IV. Bill of Lading (Reference is to the Code of Commerce, unless otherwise indicated) Definition Bill of lading – a written acknowledgement, signed by the master of a vessel or other authorized agent of the carrier, that he has received the described goods from the shipper, to be transported on the expressed terms to the described place of destination, and to be delivered there to the designated consignee or parties [70 Am. Jur. 2d 924]. It is not, however, indispensable for the creation of a contract of carriage. [Cia. Maritima v. Ins. Co. of North America (1964)]. In the absence of a bill of lading, disputes shall be determined by the legal proofs which the parties may present in support of their respective claims, according to the general provisions established in the Code of Commerce for commercial contracts [Art. 354, Code of Commerce]. The bill of lading becomes effective usually upon its delivery to and acceptance by the shipper [Aquino, Essentials of Transportation & Public Utilities Law (2011)]. In the absence of fraud, concealment, or improper conduct, it is presumed that the stipulations of the bill are known to the shipper, and he is generally bound by his acceptance whether he reads the bill or not [Magellan Mfg. Marketing Corp. v. CA (1991)].

A. THREE-FOLD CHARACTER: (1) Receipt as to the quantity and description of the goods shipped; (2) Contract to transport and deliver the goods to the consignee or other person therein designated, on the terms specified in such instrument; and (3) Docum ent of title, which makes it a symbol of the goods.

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The bill of lading constitutes the legal evidence of the contract of transportation, and all disputes between the parties regarding the execution and performance of the contract shall be decided by the contents of the bill of lading issued by the carrier. The law admits no exceptions other than the falsity and material error in its drafting [Art. 353].

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merchandise which he may make to the point of delivery. Should he not do so, he shall be liable for damages cause by the delay [Art. 358]. If no indemnity is fixed and there is delay, the carrier shall be liable for the damages which may have been caused by the delay [Art. 370]. C.2. DELIVERY WITHOUT SURRENDER OF BILL OF LADING

B. REFUSAL TO TRANSPORT General Rule: The carrier cannot refuse to carry a particular class of goods. Exception: When the goods are unfit for transportation. If transportation is insisted upon in case of railway transport, the company shall carry them, but it shall be exempt from all responsibility if the objections are so stated in the bill of lading [Art. 356].

C. DELIVERY OF GOODS The goods should be delivered to the consignee or any other person to whom the bill of lading was validly transferred or negotiated. The carrier is duty bound to deliver the goods in the same condition in which, according to the bill of lading, they were found at the time of there were received, without damage or impairment [Art. 363]. C.1. PERIOD OF DELIVERY Delivery should be made within the period fixed for the delivery of the goods as stipulated in the bill of lading [Art. 370]. In case of failure to deliver, the carrier shall pay the indemnity agreed upon in the bill of lading, neither the shipper nor consignee being entitled to anything else. Should there be no period previously fixed, the carrier is bound to forward the goods in the first shipment of the same or similar

After the contract has been complied with, the bill of lading which the carrier has issued shall be returned to him, and by virtue of the exchange of this title with the thing transported, the respective obligations and actions shall be considered cancelled, unless in the same act the claim which the parties may wish to reserve be reduced to writing, exception being made of the provisions of Art. 366, on period for filing claims [Art. 353, 2nd para.]. If, in case of loss or for any other reason whatsoever, the consignee cannot return, upon receiving the merchandise, the bill of lading subscribed by the carrier, he shall give said carrier a receipt for the goods delivered. This receipt produces the same effects as the return of the bill of lading [Art. 353, 3rd para.]. C.3. REFUSAL OF CONSIGNEE TO TAKE DELIVERY The consignee may refuse to take delivery in the following cases: (1) If only part of the goods transported should be delivered, when he proves that he cannot make use thereof without the others [Art. 363]. (2) When the goods are rendered useless for purposes of sale or consumption in the use for which they are properly destined, in which case the consignee may demand payment of the goods at current market prices [Art. 365]; (3) In case part of the goods is in good condition and separation is possible,

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the consignee may refuse to receive only the damaged goods [Art. 365]. (4) Where the delay is through the fault of the carrier [Art. 371]. In case of dispute as to the condition of the goods, the same shall be examined by experts appointed by the parties, and the third one, in case of disagreement, appointed by the judicial authority. If the persons interested should not agree with the report, said judicial authority shall order the deposits of the merchandise in a safe warehouse, and the parties interested shall make use of their rights in the proper manner. [Art. 367].

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governing their actions. Understandably, when the goods were delivered, the necessary clearance had to be made before the package was opened. Upon opening and discovery of the damaged condition of the goods, a report to this effect had to pass through the proper channels before it could be finalized and endorsed by the institution to the claims department of the shipping company.” No claim whatsoever shall be admitted against the carrier with regard to the condition in which the goods transported were delivered: (1) After the periods mentioned have elapsed; or (2) After the transportation charges have been paid.

D. PERIOD FOR FILING CLAIMS Pursuant to Art. 366, Code of Commerce, a claim , on account of damage found upon opening the packages, must be made against the carrier: (1) Within 24 hours, if the indications of the damage cannot be ascertained from the exterior of the packages (i.e., latent damage); or (2) At the time of receipt, if the indications damage can be so ascertained (i.e., patent damage). But the Court in Aboitiz v Insurance Company of North America [GR No. 168402, 6 Aug 2008] made a pro hac vice ruling, in that even if the notice was given more than 24 hrs after the receipt of the goods, the notice requirement was held nevertheless to have been complied with, due to the peculiar circumstances: “Provisions specifying a time to give notice of damage to common carriers are ordinarily to be given a reasonable and practical, rather than a strict construction. We give due consideration to the fact that the final destination of the damaged cargo was a school institution where authorities are bound by rules and regulations

The periods mentioned commence upon delivery of cargo to the consignee at the place of destination. Thus, Art. 366 is limited to cases of claims for damage to goods actually turned over by the carrier and received by the consignee. It does not apply to misdelivery of goods. Failure to file a claim bars recovery (Aquino (2011)]. Ratio: The rule protects the carrier by affording it an opportunity to make an investigation of a claim while the matter is still fresh and easily investigated so as to safeguard itself from false and fraudulent claims [UCPB General Ins. Co., Inc. v. Aboitiz Shipping (2009)]. However, the periods prescribed may be subject to modification by agreement of the parties. [PHILAMGEN v. Sweet Lines, Inc. (1992)]. The value of the goods stated in the bill of lading is conclusive between the parties, and the shipper is not allowed to prove a higher value [Art. 372]. It is only when the carrier’s fault is so gross as to amount to actual fraud that the actual amount of the losses an damages suffered may be proved by the shipper against the carrier.

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Horses, vehicles, vessels and equipment used by the carrier serves as liens for the payment of the value of the goods which the carrier must pay in case of loss or misplacement [Art. 372].

E. PERIOD FOR FILING ACTIONS E.1. OVERLAND TRANSPORTATION AND COASTWISE SHIPPING The general rules under the Civil Code on extinctive prescription apply. Thus, action for damages must be filed in court: (1) Within 6 years, if a bill of lading was not issued [Art. 1145, Civil Code]. (2) Within 10 years, if a bill of lading was issued [Art. 1146, Civil Code]. E.2. INTERNATIONAL GOODS BY SEA

CARRIAGE

OF

Suit must be brought within one year: (1) After delivery of the goods; or (2) From the date when the goods should have been delivered. Otherwise, the carrier and the ship shall be discharged from all liability in respect of loss or damage. The absence of notice shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the date when the goods should have been delivered [Section 3(6), Carriage of Goods by Sea Act].

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FALSE DECLARATION OF CONTENTS If the carrier has a well-founded suspicion of falsity in the declaration of the contents of the package, the carrier may examine it. If the declaration should be correct, examination and repacking expenses shall be defrayed by the carrier, and in the contrary, by the shipper [Art. 357].

RESPONSIIBILITY OF THE CARRIER The responsibility of the carrier commences from the moment he personally or through his duly authorized agent receives the merchandise, and at the place indicated for their reception [Art. 355]. When there is an agreed route, the carrier shall be liable for losses due not only to the change of route but also to other causes, together with the indemnity agreed upon [Art. 359]. When there is no agreed route, the carrier must select one which may be the shortest, least expensive and practically passable. All damages and impairment suffered by the goods during the transportation, by reason of fortuitous event or by the nature or defect of the articles, shall be for the account of the shipper. Proof of these accidents is incumbent on the carrier [Art. 361]. Note: Common carriers are responsible for loss, destruction or deterioration of the goods, unless it exercised extraordinary diligence, or the loss is due to Art. 1734 of the Civil Code.

The period for filing the claim is one year, in accordance with the Carriage of Goods by Sea Act. The Carriage of Goods by Sea Act, as adopted and embodied in Commonwealth Act No. 65, applies because it is a special law, and, as such, prevails over the general provisions of the Civil Code on prescription of actions [Maritime Agencies & Services, Inc. v. CA].

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V. Admiralty and Maritime Commerce

(3) Voyage or trip charter [Litonjua Shipping, Inc. v. National Seamen Board (1989)].

Concept The concept of admiralty, as distinguished from overland transportation, depends on: (1) Size of the vessel; and (2) Size of the body of water over which such vessel traverses. Under B.P. 129, jurisdiction over admiralty cases depends on the amount, and not on the nature of the claim.

A. CHARTER PARTIES Charter party – a contract by virtue of which the owner or agent of a vessel binds himself to transport merchandise or persons for a fixed price. It is a contract by which the owner or agent of the vessel leases for a certain price the whole or portion of a vessel for the transportation of the goods or persons from one port to another. It is a contract whereby the whole or part of the ship is let by the owner to a merchant or other person for a specified time or use for the conveyance of goods, in consideration of the payment of freight [Caltex v. Sulpicio Lines (1999)]. Towage is not a charter party. It is a contract for the hire of services by which a vessel is engaged to tow another vessel from one port to another for consideration. In modern maritime law and usage, there are three distinguishable types of charter parties: (1) Bareboat or demise charter; (2) Time charter; and

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Note: Both time and voyage charters are said to be contracts of affreightment, where a common or public carrier is not converted into a private carrier. Contract of affreightment – one in which the owner of the vessel leases part or all of its space to haul goods for others. It is a contract for special service to be rendered by the owner of the vessel and under such contract the general owner retains the possession, command and navigation of the ship, the charterer or freighter merely having use of the space in the vessel in return for his payment of the charter hire [Puromines, Inc. v. CA (1993)]. Bill of lading distinguished from a charter party A charter party is a complete contract, while a bill of lading is a private receipt which the captain gives to accredit that such goods belong to such persons. A charter party is a consensual contract which can be dissolved by means of indemnity for losses and damages; while a bill of lading is a real contract which exists only after delivery of the goods to be transported is made. Liabilities arising from breach is identical to overland transport. A.1. BAREBOAT OR DEMISE CHARTER In a bareboat or demise charter, the ship owner leases to the charterer the whole vessel, transferring to the latter the entire command, possession and consequent control over the vessel’s navigation, including the master and the crew, who thereby become the charterer’s “servants” [Aquino (2011)].

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To create a demise, the owner of a vessel must completely and exclusively relinquish possession, com m and and navigation thereof to the charterer, anything short of such a complete transfer is a contract of affreightment (time or voyage charter party) or not a charter party at all.

A.3. VOYAGE OR TRIP CHARTER

Although a charter party may transform a common carrier into a private one, the same, however, is not true in a contract of affreightment on account of the distinctions between a contract of affreightment and a demise or bareboat charter [Puromines, Inc. v. CA (1993)].

B. LIABILITY OF SHIP OWNERS AND SHIPPING AGENTS

Note: In a bareboat or demise charter, the common carrier is converted to private carrier.

In a voyage charter, the vessel is leased for a single or particular voyage. The master and crew remain the employ of the owner of the vessel [Litonjua Shipping Co., Inc. v. National Seamen Board (1989)].

The persons participating in maritime commerce are the following: (1) Ship owners or ship agents (2) Captains and masters (3) Other officers and crew

The charterer, to whom the owner of the vessel relinquishes, completely and exclusively, the possession, command and navigation of the vessel, by virtue of a demise charter, is considered the owner pro hac vice. He mans and equips the vessel and assumes all responsibility for navigation, management and operation. He thus acts as the owner of the vessel in all important aspects during the duration of the charter [Puromines, Inc. v. CA (1993)].

(4) Supercargoes

A.2. TIME CHARTER

A ship agent is the person entrusted with the provisioning of a vessel, or who represents her in the port in which she happens to be [Art. 586].

Time charter – a contract for the use of a vessel for a specified period of time or for the duration of one or more specified voyages. In this case, the owner of a time-chartered vessel retains possession and control through the master and crew, who remain his employees. What the time charterer acquires is the right to utilize the carrying capacity and facilities of the vessel and to designate her destinations during the term of the charter [Litonjua Shipping Co., Inc. v. National Seamen Board (1989)].

The ship owner has possession, control and management of the vessel and the consequent right to direct her navigation and receive freight earned and paid, while his possession continues; he is the person who is primarily liable for damages sustained in the operation of the vessel, based on the provisions of the Code of Commerce.

The ship agent, even though he is not the owner, is liable in every way to the creditor for losses and damages, without prejudice to his right against the owner, the vessel and its equipment and freight [Aquino (2011)]. Captains are those who govern vessels that navigate the high seas or ships of large dimensions and importance, although they may be engaged in coastwise trade. Masters are those who command smaller ships engaged exclusively in coastwise trade. In maritime commerce, masters and captains are the same.

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A crew is a person on board who is involved in highly technical tasks and in manning of the vessel (e.g. master, mate). A com plem ent is a person, not a crew, who is not directly involved in the manning of the vessel (e.g. cook).

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B.1. LIABILIITY FOR ACTS OF CAPTAIN Three (3) distinct roles of a captain: (1) General agent of the ship owner; (2) Commander and technical director of the vessel;

Supercargo is a person on board the vessel, who functions as an agent of the owner of the goods shipped as cargo on a vessel, who has charge of the cargo on board, sells the same to the best advantage in the foreign markets, buys cargo to be brought back on the return voyage of the ship, and comes home with it.

(3) Representative of the country under whose flag he navigates [Inter-Orient Marine Enterprises v. NLRC (1994)].

The powers and liabilities of the captain shall cease, when there is a supercargo, with regard to that part of the administration legitimately conferred upon the latter, but shall continue in force for all acts which are inseparable from his authority and office [Art. 649].

(1) For all the damages suffered by the vessel and his cargo by reason of want of skill or negligence on his part;

The ship owner or ship agent is liable: (1) For the acts of the captain, unless the latter exceeds his authority [Art. 586]. (2) For contracts entered into by the captain to repair, equip and provision the vessel, provided that the amount claimed was invested for the benefit of the vessel [Art. 586]. (3) For the indemnities in favor of third persons which may arise from the conduct of the captain in the care of the goods transported, as well as for the safety of passengers transported [Art. 587]. (4) For damages to third persons for tort or quasi-delict committed by the captain, except collision with another vessel [Art. 1759, Civil Code]. (5) For damages in case of collision due to the fault, negligence, or want of skill of the captain, sailing mate, or any other member of the complement [Art. 826].

The captain shall be liable to the agent, and the latter to third persons:

(2) For all the thefts committed by the crew, reserving his right of action against the guilty parties; (3) For the losses, fines, and confiscations imposed on account of violation of the laws and regulations of customs, police, health, and navigation; (4) For the losses and damages caused by mutinies on board the vessel, or by reason of faults committed by the crew in the service and defense of the same, if he does not prove that he made full use of his authority to prevent or avoid them; (5) For those arising by reason of an undue use of powers and non-fulfillment of the obligations which are his; (6) For those arising by reason of his going out of his course or taking a course which he should not have taken without sufficient cause, in the opinion of the officers of the vessel at a meeting with the shippers or supercargoes who may be on board; (7) For those arising by reason of his voluntarily entering a port other than that of his destination; (8) For those arising by reason of nonobservance of the provisions contained in the regulations on situation of lights

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and maneuvers for the purpose of preventing collisions [Art. 618].

contribution to the common fund, for the results of the acts of the captain, referred to in Art. 587. Each part owner may exempt himself from this liability by the abandonment before a notary of the part of the vessel belonging to him [Art. 590].

B.2. EXCEPTIONS TO LIMITED LIABILITY The Doctrine of Limited (Hypothecary Rule)

Liability

The real and hypothecary nature of maritime law simply means that the liability of the carrier in connection with losses related to maritime contracts is confined to the vessel, which is hypothecated for such obligations or which stands as the guaranty for their settlement. It has its origin by reason of the conditions and risks attending maritime trade in its earliest years when such trade was replete with innumerable and unknown hazards since vessels had to go through largely uncharted waters to ply their trade. It was designed to offset such adverse conditions and to encourage people and entities to venture into maritime commerce despite the risks and the prohibitive cost of shipbuilding. Thus, the liability of the vessel owner and agent arising from the operation of such vessel were confined to the vessel itself, its equipment, freight, and insurance, if any, which limitation served to induce capitalists into effectively wagering their resources against the consideration of the large profits attainable in the trade [Aboitiz Shipping Corp. v. General Accident Fire and Life Assurance Corp. (1993)]. Thus, under the doctrine of abandonment: (1) The agent shall be civilly liable for the indemnities in favor of third persons which arise from the conduct of the captain in the care of the goods which the vessel carried, but he may exempt himself therefrom by abandoning the vessel with all her equipment and the freight he may have earned during the voyage [Art. 587]; (2) The owners of a vessel shall be civilly liable in the proportion of their

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(3) In case of collision, the liability of the ship owner shall be understood as limited to the value of the vessel with all her appurtenances and all the freight earned during the voyage [Art. 837]. (4) If the vessel and her freight should be totally lost, by reason of capture or wreck, all rights of the crew to demand any wages whatsoever shall be extinguished, as well as the agent for the recovery of the advances made [Art. 643]. If the ship owner or agent may in any way be held civilly liable at all for injury to or death of passengers arising from the negligence of the captain in cases of collisions or shipwrecks, his liability is merely coextensive with his interest in the vessel such that a total loss thereof results in its extinction. This is based on the exclusively “real and hypothecary nature” of maritime law, which operates to limit such liability to the value of the vessel, or to the insurance thereon, if any. [Yangco v. Laserna (1941)] Exceptions: (1) Claims under the Workmen’s Compensation Act [Abueg v. San Diego]; (2) Expenses for repairing, provisioning and equipping the vessel; (3) There is an actual finding of negligence on the part of the vessel owner or agent [Aboitiz Shipping v. General Accident Fire and Life Assurance Corp. (1993)]; (4) Vessel is insured, to the extent of the insurance proceeds [Vasquez v. CA (1985)]; (5) There was no total loss; (6) Collision between two negligent vessels.

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C. ACCIDENTS AND DAMAGES IN MARITIME COMMERCE

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saved, as well as lenders on bottomry or respondentia.

C.1. AVERAGES The following shall be considered averages:

1. REQUISITES

(1) All extraordinary or accidental expenses incurred during the navigation for the preservation of the vessel or cargo, or both;

(1) There must be a common danger;

(2) All damages or deterioration the vessel may suffer from the time she puts to sea from the port of departure until she casts anchor in the port of destination, and those suffered by the merchandise from the time it is loaded in the port of shipment until it is unloaded in the port of consignment [Art. 806].

(3) That from the expenses or damages caused follows the successful saving of the vessel and cargo;

There are two kinds of averages:

Common danger means both the ship and the cargo, after it has been loaded, are subject to the same danger, whether during the voyage, or in the port of loading or unloading, that the danger arises from the accidents of the sea, dispositions of the authority, or faults of men, provided that the circumstances producing the peril should be ascertained and imminent or may rationally be said to be certain and imminent. This last requirement excludes measures undertaken against a distant peril [Magsaysay, Inc. v. Agan [1955]].

(1) Particular or simple average; and (2) Gross or general average. I. SIMPLE AVERAGE Particular or simple averages shall include all damages and expenses caused to the vessel or cargo that did not inure to the common benefit and profit of all persons interested in the vessel and her cargo [Art. 809]. The owner of the goods which gave rise to the expense or suffered the damage shall bear this average [Art. 810].

(2) That for the common safety, part of the vessel or of the cargo or both is sacrificed deliberately;

(4) That the expenses or damages should have been incurred or inflicted after taking proper legal steps and authority [Magsaysay, Inc. v. Agan [1955]].

Note: When a vessel is stranded unintentionally, the damages incurred cannot constitute general averages. 2. CASES OF GENERAL AVERAGE

II. GENERAL AVERAGE General or gross averages shall include all the damages and expenses which are deliberately caused in order to save the vessel, her cargo, or both at the same time, from a real and known risk [Art. 811]. The gross or general average shall be borne by those who benefited from the sacrifice. These include the ship owner and the owners of the cargoes that were saved. Contribution may also be imposed on the insurers of the vessel or cargoes that were

(1) The goods or cash invested in the redemption of the vessel or cargo captured by enemies, privateers, or pirates, and the provisions, wages, and expenses of the vessel detained during the time the arrangement or redemption is taking place; (2) The goods jettisoned to lighten the vessel, whether they belong to the vessel, to the cargo, or to the crew, and the damage suffered through said act by the goods kept;

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(3) The cables and masts which are cut or rendered useless, the anchors and the chains which are abandoned in order to save the cargo, the vessel, or both; (4) The expenses of removing or transferring a portion of the cargo in order to lighten the vessel and place her in condition to enter a port or roadstead, and the damage resulting therefrom to the goods removed or transferred; (5) The damage suffered by the goods of the cargo through the opening made in the vessel in order to drain her and prevent her sinking; (6) The expenses caused through floating a vessel intentionally stranded for the purpose of saving her; (7) The damage caused to the vessel which it is necessary to break open, scuttle, or smash in order to save the cargo; (8) The expenses of curing and maintaining the members of the crew who may have been wounded or crippled in defending or saving the vessel; (9) The wages of any member of the crew detained as hostage by enemies, privateers, or pirates, and the necessary expenses which he may incur in his imprisonment, until he is returned to the vessel or to his domicile, should he prefer it;

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cargo should be transferred to lighters or barges and be lost, the owner of said part shall be entitled to indemnity, as if the loss has originated from a gross average [Art. 817]; (14) If, as a necessary measure to extinguish a fire in a port; roadstead; creek, or bay, it should be decided to sink any vessel, this loss shall be considered gross average, to which the vessels saved shall contribute. (15) 3. JETTISON The captain shall direct the jettison, and shall order the goods cast overboard in the following order: (1) Goods on deck - beginning with those which embarrass the maneuver or damage the vessel, preferring if possible, the heaviest ones with the least utility and value; (2) Goods below the upper deck - always beginning with those of the greatest weight and smallest value, to the amount and number absolutely indispensable [Art. 815]. To include the goods jettisoned in the general or gross average, the existence of the cargo or goods must be proved:

(10) The wages and victuals of the crew of a vessel chartered by the month during the time it should be embargoed or detained by force majeure or by order of the Government, or in order to repair the damage caused for the common good;

(1) For cargo – by means of bill of lading;

(11) The loss suffered in the value of the goods sold at arrivals under stress in order to repair the vessel because of gross average;

Jason clause is a provision in the contract of carriage that requires the cargo owners to contribute in general average though the event which gave rise to the sacrifice or expenditure may have been due to the fault of one of the parties to the adventure [Rule D, York Antwerp Rules].

(12) The expenses of the liquidation of the average [Art. 811]; (13) If in lightening a vessel on account of a storm, in order to facilitate her entry into a port or roadstead, part of her

(2) For good belonging to the vessel – by means the inventory prepared prior to departure [Art. 816]. 4. JASON CLAUSE

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5. PROCEDURE FOR RECOVERY (1) Assembly and deliberation with the sailing mate and other officers; (2) Resolution of the captain adopted; (3) Hearing of the persons interested. In case an interested person should not be heard, he shall not contribute to the gross average [Art. 813, Code of Commerce];

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When 2 power-driven vessels are meeting head on, or nearly head on, so as to involve risk of collision, each shall alter her course to starboard (right side), so that each may pass on the port (left) side of the other. [Smith Bell and Co. v. CA (1991)]. Note: Liability in collision cases is negligence-based. The person who caused the injury is both civilly and criminally liable [Aquino (2011)].

(4) Resolution to be entered in the log book, stating the motives and reasons therefore as well as the votes and reason for disagreement [Art. 814, Code of Commerce];

Classes of Collision:

(5) Minutes to be signed by all the persons present or in urgent cases, the captain;

(3) Inscrutable Fault - it cannot be determined which of the vessels was at fault.

(6) Captain shall deliver one copy of the minutes to the maritime judicial authority of the first port he may make within 24 hours [Art. 814]; (7) Captain shall ratify the minutes under oath [Art. 814]. C.2. COLLISIONS Collision is an impact or sudden contact between two moving vessels [Aquino (2011)]. Allision is the striking of a moving vessel against one that is stationary. The steamer’s greater facility of maneuvering over a sail vessel means it has the greater ability to avoid collisions; so as a general rule, when meeting a sailing vessel, whether close hauled or with the wind free, the sail vessel has a right to keep her course, and it is the duty of the steamer to adopt precautions as will avoid the sail vessel… Subject to the general rules of evidence in collision cases as to the burden of proof, in the case of a collision between a steam vessel and a sail vessel, the presumption is against the steam vessel, and she must show that she took the proper measures to avoid a collision. [A. Urrutia & Co. v. Baco River Plantation Co. [1913)].

(1) Fortuitous - none was at fault; (2) Culpable - one or more vessels were at fault;

I. FORTUITOUS When it is due to a fortuitous event or force majeure, each vessel and its cargo shall bear its own damages [Art. 830]. When, by reason of force m ajeure, a vessel properly anchored and moored collides with another, the injury occasioned shall be looked upon as particular average to the vessel run into [Art. 832]. II. CULPABLE When only one vessel is at fault, the owner of the vessel at fault shall indemnify the losses and damages suffered, after an expert appraisal. When both vessels are at fault, each shall suffer its own damages, and both shall be solidarily responsible for the losses and damages occasioned to their cargoes [Art. 826]. Note: The ship owners cannot successfully maintain an action against the other for the loss or injury to his vessel. When a third vessel at fault, the owner of the third vessel shall indemnify the losses and damages caused, the captain thereof being civilly liable to said owner [Art. 831].

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III. INSCRUTABLE FAULT In case of inscrutable fault, that is, if it cannot be decided which of the two vessels was the cause of the collision, each shall bear his own damage and both shall be jointly responsible for the losses and damages suffered by their cargoes [Art. 828]. C.3. ARRIVAL UNDER STRESS Arrival under stress is the arrival of a vessel at the nearest and most convenient port instead of the port of destination, if during the voyage the vessel cannot continue the trip to the port of destination. It is lawful when the inability to continue voyage is due to: (1) Lack of provisions; (2) Well-founded fear of seizure, privateers, or pirates; or (3) Any accident of the sea disabling it to navigate [Art. 819]. It is unlawful when: (1) The lack of provisions should arise from the failure to take the necessary provisions for the voyage, according to usage and custom, or if they should have been rendered useless or lost through bad stowage or negligence in their care; (2) The risk of enemies, privateers, or pirates should not have been well known or manifest, and based on positive and justifiable facts; (3) The injury to the vessel should have been caused by reason of her not being repaired, rigged, equipped, and arranged in a convenient manner for the voyage, or by reason of some erroneous order of the captain; or (4) Malice, negligence, want of foresight, or lack of skill on the part of the captain is the reason for the act causing the damage [Art. 820].

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Note: Expenses for arrival under stress are particular averages [see Art. 821]. C.4. SHIPWRECKS Shipwreck denotes loss or wreck of a vessel at sea as a consequence of running against another vessel or thing at sea or on coast where the vessel is rendered incapable of navigation. The losses and deterioration suffered by the vessel and her cargo shall be individually for the account of the owners [Art. 840]. If the wreck was due to malice, negligence or lack of skill of the captain, or because the vessel put to sea was insufficiently repaired and equipped, the ship agent or the shippers may demand indemnity from said captain. [Art. 841]. C.5. SALVAGE Salvage is defined as the service which one person renders to the owner of a ship or goods, by his own labor, preserving the goods or the ship which the owner or those entrusted with the care of them have either abandoned in distress at sea, or are unable to protect and secure. It is founded on equity and is compensation for actual services rendered. Three elements are necessary to a valid salvage claim: (1) A marine peril; (2) Service voluntarily rendered when not required as an existing duty or from a special contract; (3) Success, in whole or in part, or that the service rendered contributed to such success [Erlanger & Galinger v. Swedish East Asiatic Co. Ltd (1916)]. The goods saved from the wreck shall be specially bound for the payment of the expenses of the respective salvage, and the amount thereof must be paid by the owners of the former before they are delivered to them [Art. 842].

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Where a personal action is brought by the salvor against the owner of the ship, the liability of the latter is limited to such part of the salvage compensation due for the entire service as is proportionate to the value of the ship. Distinction between salvage and towage: Towage –a vessel is engaged to tow another vessel from one port to another for consideration. In contract for towage, the crew does not have any interest or rights with the remuneration pursuant to the contract; only the owner of the towing vessel is entitled to remuneration. Salvage – a person preserves the goods or the ship which the owner either abandoned in distress at sea, or is unable to protect and secure. In salvage, the crew of the salvaging ship is entitled to salvage, and can look to the salvage vessel for its share [Barrios v. Go Thong (1963)].

D. CARRIAGE OF GOODS BY SEA ACT (COGSA) D.1. APPLICATION COGSA [Commonwealth Act No. 65] is a special law that governs all contracts of carriage of goods by sea between or to and from the Philippine ports. Its application is according to the following scheme: (1) If the com m on carrier is coming to the Philippines: (a) First: Civil Code; (b) Second: trade);

COGSA

(in

foreign

(c) Third: Code of Commerce;

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(2) If the private carrier is coming to the Philippines: (a) First: COGSA; (b) Second: Code of Commerce; (c) Third: Civil Code (excluding rules on com m on carriers); (3) If the private or common carrier is from the Philippines to a foreign country, the law of the foreign country applies [Art. 1753, Civil Code] unless the parties make COGSA applicable. Under Art. 1766, in all matters not regulated by the Civil Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and special laws. Thus, although a special law, COGSA only applies when the Civil Code has no provision dealing with the matter. D.2. NOTICE OF LOSS OR DAMAGES Notice of claim and the general nature of the loss or damage must be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods [Section 3(6), COGSA]. If damage is not patent or cannot be ascertained from the package, the shipper should file the claim with the carrier within three days from delivery. Under Section 3(6), COGSA, a failure to file a notice of claim within three (3) days will not bar recovery if it is nonetheless filed within one year. This one-year prescriptive period also applies to the shipper, the consignee, the insurer of the goods or any legal holder of the bill of lading. Inasmuch as the neither the Civil Code nor the Code of Commerce states a specific prescriptive period on the matter, the COGSA may be applied [Belgian Overseas Chartering and Shipping v. Philippine First Ins. Co. (2002)]. Note: In the Warsaw Convention, as well as the Code of Commerce, the notice requirement is a condition precedent for the right of action against the shipowner to accrue.

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D.3. PERIOD OF PRESCRIPTION The carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. The absence of a notice shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the date when the goods should have been delivered [Section 3 (6)]. COGSA, as a special law, prevails over the general provisions of the Civil Code on prescription of actions [Maritime Agencies & Services, Inc. v. CA (1990)]. D.4. LIMITATION OF LIABILITY Under Section 4(5], COGSA, the limit is set at a maximum of $500 per package or customary freight unit. This is deemed incorporated in the bill of lading even if not mention therein [Eastern Shipping v. IAC (1987)]. The declaration made by the shipper stating an amount bigger than $500 per package will make the carrier liable for such bigger amount, but only if the amount so declared is the real value of goods [Aquino (2011)]. The Civil Code does not limit the liability of the common carrier to a fixed amount per package. In all matters not regulated by the Civil Code, the right and the obligations of common carriers shall be governed by the Code of Commerce and special laws. Thus, the COGSA, which is suppletory to the provisions of the Civil Code, supplements the latter by establishing a statutory provision limiting the carrier’s liability in the absence of a shipper’s declaration of a higher value in the bill of lading. [Belgian Overseas v. Philippine First Ins. Co. (2002)]. VESSEL Vessels are those engaged in navigation, whether coastwise or on the high seas

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destined for the services of the industry or maritime commerce. The word ‘vessel’ used in the Code of Commerce was not intended to include all ships, craft, or floating structures of every kind without limitation [Lopez v. Duruelo (1928)]. Vessels are considered personal or movable property [Art. 585]; but they partake to a certain extent, of the nature and conditions of real property, on account of their value and importance in the world of commerce. Vessel of domestic ownership and of more than 15 tons gross is required to acquire a certificate of Philippine register. The purpose of the certificate is declare the nationality of a vessel engaged in trade with foreign nations and to enable her to assert that nationality wherever found.

SPECIAL CONTRACTS OF MARITIME COMMERCE LOANS ON RESPONDENTIA

BOTTOMRY

AND

Loan on bottom ry is a contract in the nature of a mortgage, by which the owner of the ship borrows money for the use, equipment and repair of the vessel and for a definite term, and pledges the ship as a security for its repayment, with maritime or extraordinary interest on account of the maritime risks to be borne by the lender, it being stipulated that if the ship be lost in the course of the specific voyage or during the limited time, by any of the perils enumerated in the contract, the lender shall also lose his money. Loan on respondentia is one made on the goods laden on board the ship, and which are to be sold or exchanged in the course of the voyage, the borrower’s personal responsibility being deemed the principal security for the performance of the contract, which is therefore called respondentia. The lender must be paid his

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principal and interest, though the ship perishes, provided that the goods are saved.

PASSENGERS ON SEA VOYAGE The right to passage issued to a specified person is non-transferrable without the consent of the captain or of the consignee [Art. 695].

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the return of the fare upon request. If the delay is due to the sole fault of the captain or ship agent, they may demand indemnity for losses and damages. (4) To be taken directly to the port or ports of destination, making all the stops indicated in its itinerary [Art. 698].

Rights of passengers include: (1) In case of suspension of voyage (a) If through the sole fault of the captain or ship agent, the passengers shall be entitled to have their passage refunded and to recover for losses and damages. (b) If due to accidental cause or force majeure, the passengers shall only be entitled to the return of the passage money [Art. 697]. (2) In case of interruption of voyage (a) If due to fortuitous event or force majeure, the passengers shall be obliged to pay only the fare in proportion to their distance covered, without right to recover for losses or damages. (b) If due to the sole fault of the captain, the passengers shall be obliged to pay only the fare in proportion to their distance covered, with a right to indemnity. (c) If due to the disability of the vessel and the passenger should agree to await the repairs, he may not be required to pay any increased price of passage, but his living expenses during the delay shall be for his own account [Art. 698]. (3) In case of delay in the departure, the passengers have a right to remain on board and to be furnished food, unless the delay is due to accidental cause or to force majeure. If the delay exceeds 10 days, the passengers are entitled to

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VI. International Air Transport

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The carrier is liable for damages for: (1) Death or injury of a passenger if the accident causing it took place: (a) On board the aircraft;

The Warsaw Convention

(b) In the course of the operations of embarking or disembarking; or

A. APPLICABILITY

(c) When there was delay [Art. 17 and 19, Warsaw Convention];

The Warsaw Convention applies to: (1) All international carriage of persons, baggage, or cargo performed by aircraft for reward; (2) Gratuitous carriage by aircraft performed by an air transport undertaking [Art. 1(1), Warsaw Convention]. International air carriage or international air transport means transportation by air between points of contact of two high contracting parties, or those countries that have acceded to the Warsaw Convention, wherein the place of departure and the place of destination are situated: (1) Within the territories of two high contracting parties, regardless of whether or not there be a break in the transportation or a transshipment; or (2) Within the territory of a single high contracting party, if there is an agreed stopping place within a territory subject to the sovereignty, mandate or authority of another power, even though the power is not a party to the Convention [Art. 1(2), Warsaw Convention]. A carriage to be perform ed by several successive air carriers is deemed, for the purposes of the Convention, to be one undivided carriage, if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts [Art. 1(3), Warsaw Convention].

(2) Destruction, loss, or damage to any baggage or goods that are checked in, if damage occurred: (a) During the transportation by air; or (b) When there was delay [Section 18 and 19, Warsaw Convention]; (3) Delay in the transport by air of passengers, baggage or goods. The carriage by air contemplated comprises the period in which the baggage or goods are in charge of the carrier, whether in an airport or on board an aircraft, or, in the case of a landing outside an airport, in any place whatsoever [Art. 18, Warsaw Convention].

B. LIMITATION OF LIABILITY With respect to the following limitations of liability, Art. 23, Warsaw Convention provides that any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract. Also, under Art. 25, Warsaw Convention: (1) The carrier shall not be entitled to avail himself of the provisions which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as is considered to be equivalent to willful misconduct; (2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by

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any agent of the carrier acting within the scope of his employment. Under Art. 29, Warsaw Convention, the right to damages under the WC is extinguished after two years from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. The method of calculating the period of limitation shall be determined by the law of the court seized of the case. B.1. LIABILITY TO PASSENGERS General rule: In the carriage of passengers, the liability of the carrier for each passenger is limited to 250,000 francs passenger. Exception: By special contract, the carrier and the passenger may agree to a higher limit [Art. 22(1), Warsaw Convention]. B.2. LIABILITY FOR CHECKED BAGGAGE General rule: In the carriage of baggage and goods, the liability of the carrier is limited to 250 francs per kilogram. Exception: The limit does not apply when the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor at delivery [Art. 22(2), Warsaw Convention]. B.3. LIABILITY BAGGAGE

FOR

HAND-CARRIED

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The Guatemala Protocol of 1971 increased the limit for passengers to $100,000 and to $1,000 for baggage. However, the Supreme Court noted in Santos III v. Northwest Orient Airlines (1992), that the Guatemala Protocol is still ineffective [Sundiang and Aquino (2013)]. The Warsaw Convention should be deemed a limit of liability only in those cases where the cause of death or injury to person, or destruction, loss or damage to property or delay in its transport is not attributable to or attended by any willful misconduct, bad faith, recklessness, or otherwise improper conduct on the part of any official or employee for which the carrier is responsible; and there is otherwise no special or extraordinary form of resulting injury [Alitalia Airways v. CA (1990)].

C. WILLFUL MISCONDUCT A common carrier may not avail of the limitation in the following cases: (1) Willful misconduct; (2) Default amounting to misconduct [Art. 25, Convention];

willful Warsaw

(3) Accepting passengers without ticket [Art. 3(2), Warsaw Convention]; (4) Accepting goods without airway bill or baggage without baggage check. Receipt by the person entitled to the delivery of baggage or cargo without complaint is prima facie evidence that the same have been delivered in good condition and in accordance with the document of carriage [Art. 26, Warsaw Convention].

As regards hand-carried baggage, the liability of the carrier is limited to 5,000 francs per passenger [Art. 22(3), Warsaw Convention].

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D. JURISDICTION An action for damages must be brought at the option of the plaintiff: (1) Before the court of the domicile of the carrier; (2) The court of its principal place of business; (3) The court where it has a place of business through which the contract had been made; or (4) The court of the place of destination [Art. 28 (2) WC]. When a passenger buys a roundtrip ticket, the place of destination is the place of first departure. E.g. In a round-trip ticket from San Francisco – Manila, the place of destination is San Francisco [Santos v Northwest Airlines (1992)]. Note: The Montreal Convention adds a 5th jurisdiction: residence of the plaintiff.

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CORPORATION CODE

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A corporation, upon coming into existence, is invested by law with a personality separate and distinct from those persons composing it as well as from any other legal entity to which it may be related. [Yutivo Sons Hardware v. CTA (1961)]

I. Corporation A. DEFINITION Corporation – is an artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence [Sec. 2, unless otherwise indicated, all sections cited herein are from B.P. 68, or the Corporation Code].

B. ATTRIBUTES OF THE CORPORATION B.1. AN ARTIFICIAL BEING A corporation exists by fiction of law. Hence, it can act only through its directors, officers and employees. Being only a juridical entity, the physical acts of the corporation, like the signing of documents, can be performed only by natural persons duly authorized for the purpose by corporate by-laws or by a special act of the Board of Directors (BOD). [Shipside, Inc. v. CA (2001)] I. MORAL DAMAGES A corporation can recover moral damages under Art 2219 (7) if it was the victim of defamation. [Pilipinas Broadcasting Network v. Ago Medical and Educational Center (2005)] II. CRIMINAL LIABILITY Since a corporation as a person is a mere legal fiction, it cannot be proceeded against criminally because it cannot commit a crime in which personal violence or malicious intent is required. Criminal action is limited to the corporate agents guilty of an act am ounting to a crim e and never against the corporation itself. [West Coast Life Ins. Co. v. Hurd (1914); Time Inc. v. Reyes (1971)] III. DOCTRINE PERSONALITY

OF

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B.2. CREATED BY OPERATION OF LAW Mere consent of the parties to form a corporation is not sufficient. The State must give its consent either through a special law [in case of government corporations] or a general law (i.e., Corporation Code in case of private corporations). A corporation comes into existence upon the issuance of the certificate of incorporation. Then and only then will it acquire juridical personality to sue and be sued, enter into contracts, hold or convey property or perform any legal act in its own name. B.3. HAS THE RIGHT OF SUCCESSION Its continued existence during its stated term cannot be affected by any change in the members or stockholders or by any transfer of shares by a stockholder to a third person. B.4. HAS THE POWERS, ATTRIBUTES AND PROPERTIES EXPRESSLY AUTHORIZED BY LAW OR INCIDENT TO ITS EXISTENCE A corporation has no power except those expressly conferred on it by the Corporation Code and by its articles of incorporation, those which may be incidental to such conferred powers, those that are implied from its existence, and those reasonably necessary to accomplish its purposes. In turn, a corporation exercises said powers through its BOD and/or its duly authorized officers and agents. [Monfort Hermanos Agricultural Dev. Corp. v. Monfort III (2004)]

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Stock

Non Stock

II. Classes of Corporations

Composed of stockholders

A. STOCK CORPORATION

C. OTHER CORPORATIONS

Stock corporations – corporations which have capital stock divided into shares AND are authorized to distribute to the holders of such shares dividends or allotments of the surplus profits on the basis of shares held [Sec. 3]. It is organized for profit.

C.1. PUBLIC CORPORATION

The governing body of a stock corporation is usually the BOD (except in certain instances, e.g. close corporations). Note: A corporation is deemed to have the power to declare dividends. Thus, so long as the corporation has capital stock and there is no prohibition in its Articles of Incorporation or in its by-laws for it to declare dividends, such corporation is a stock corporation [Sec. 43].

B. NON-STOCK CORPORATION All other corporations corporations [Sec. 3].

are

non-stock

Non-stock corporation – One where no part of the income is distributable as dividends to its members, trustees, or officers, subject to the provisions of the Code on dissolution [Sec. 87]. It is not organized for profit. Its governing body is usually the Board of Trustees (BOT). However, non-stock corporations may, through their articles of incorporation or their by-laws, designate their governing boards by any name other than as board of trustees [Sec. 138]. Stock

Non Stock

Purpose is profits for its shareholders

Exists for purposes other than profit

Profits are distributed to shareholders

Profits are for furtherance of its purposes

Composed of members

Public corporation – one formed or organized for the government of a portion of the state. Its purpose is for the general good and welfare [Sec. 3, Act 1456]. Beyond cavil, a GOCC has a personality of its own, distinct and separate from that of the government, and the intervention in a transaction of the Office of the President through the Executive Secretary does not change the independent existence of a government entity as it deals with another government entity. [Polytechnic University of the Phils. v. CA (2001)] Not all corporations which are not GOCC are ipso facto to be considered private corporations as there exists another distinct class of corporations or chartered institutions which are otherwise known as “public corporations.” These corporations are treated by law as agencies or instrumentalities of the government which are not subject to the tests of ownership or control and economic viability but to different criteria relating to their public purposes/interests or constitutional policies and objectives and their adm inistrative relationship to the government or any of its Departm ents or Offices. [Boy Scouts of the Philippines v. COA (2011)] C.2. PRIVATE CORPORATION Private corporation – One formed for some private purpose, benefit, aim or end [Sec. 3, Act 1456]; it may be either stock or non-stock, government-owned or controlled or quasi-public. The test to determine whether GOCC or private corporation: if a corporation is created

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by its own charter for the exercise of a public function, then GOCC; if by incorporation under the general corporation law, then private corporation. [Baluyot v. Holganza (2000)] C.3. CLOSE CORPORATION Close corporation - One whose articles of incorporation provide that: (1) All issued stock, exclusive of treasury shares, shall be held by persons not exceeding 20; (2) All issued stock shall be subject to one or more specified restrictions on transfer; and (3) The corporation shall not list in any stock exchange or make any public offering of any of its stock of any class. Notwithstanding the foregoing, a corporation shall not be deemed a close corporation when at least 2/3 of its voting stock or voting rights is owned or controlled by another corporation which is not a close corporation. [Sec. 96] Any corporation may be incorporated as a close incorporation, except: (1) mining or oil companies;

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trustee, the affairs, property and temporalities of any religious denomination, sect, or church, by the chief archbishop, bishop, priest, rabbi, or other presiding elder of such religious denomination, sect or church [Sec.110]. A corporation sole has no nationality but for the purpose of applying nationalization laws, nationality is determined not by the nationality of its presiding elder but by the nationality of its members constituting the sect in the Philippines. Thus, the Roman Catholic Church can acquire lands in the Philippines even if it is headed by the Pope. [Roman Catholic Apostolic, etc v. Register of Deeds of Davao City (1957)] II. CORPORATION AGGREGATE Corporation aggregate – is a religious corporation incorporated by more than one person. C.6. ELEEMOSYNARY CORPORATION Eleemosynary corporation– organized for a charitable purpose.

One

C.7. DOMESTIC CORPORATION Dom estic corporation– One formed, organized, or existing under the laws of the Philippines.

(2) stock exchanges; (3) banks; (4) insurance companies;

C.8. FOREIGN CORPORATION

(5) public utilities; (6) educational institutions; and (7) corporations declared to be vested with public interest [Sec. 96]

Foreign corporation – One formed, organized or existing under any laws other than those of the Philippines and whose law allows Filipino citizens and corporations to do business in its own country and state [Sec. 123].

C.4. EDUCATIONAL CORPORATION Educational corporation – One organized for educational purposes [Sec. 106]. C.5. RELIGIOUS CORPORATIONS I. CORPORATION SOLE Corporation sole – is one formed for the purpose of administering and managing, as

C.9. CORPORATION CREATED BY SPECIAL LAWS OR CHARTER Corporation created by special laws or charter - Corporations which are governed primarily by the provisions of the special law or charter creating them. Corporation Code has suppletory application [Sec. 4].

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C.10. SUBSIDIARY CORPORATION Subsidiary corporation – One in which control, in the form of ownership of majority of its shares, is in another corporation [the parent corporation]. C.11. PARENT CORPORATION Parent corporation – Its control lies in its power, directly or indirectly, to elect the subsidiary’s directors thus controlling its management policies. Holding com pany – a parent company which has no other business aside from the holding of the shares of its subsidiaries, which it controls. Investment company – a parent company which holds shares in other corporations not for the purpose of controlling them but merely to invest therein.

Corporation de jure – A corporation organized in accordance with the requirements of the law. C.13. DE FACTO CORPORATION De facto corporation – A corporation where there exists a flaw in its incorporation. DE

such

II. REQUISITES CORPORATION:

juridical OF

personality

DE

FACTO

(1) There is an apparently valid statute under which the corporation may be formed; (2) There has been colorable com pliance with the legal requirements in good faith; and (3) There has been user of corporate powers, i.e. the transaction of business as if it were a corporation [Campos]. An association of persons cannot claim to be a corporation if it has not been issued a certificate of incorporation since that fact belies the claim of good faith compliance with the requirements of the law. [Hall v. Piccio (1950)] C.14 CORPORATION BY ESTOPPEL

C.12 CORPORATION DE JURE

I. RULE ON CORPORATIONS

existence of [Villanueva].

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FACTO

The due incorporation of any corporation claiming in good faith to be a corporation under this Code, and its right to exercise corporate powers, shall not be inquired into collaterally in any private suit to which such corporation may be a party. Such inquiry may be made by the Solicitor General in a quo warranto proceeding [Sec. 20]. General Rule: The defect in the juridical personality of a corporation cannot be inquired into by private individuals, much less used as a defense to avoid claims, Exception: In quo warranto proceedings brought on behalf of the State where the main action is to question the validity or

Corporation by estoppel – Where a group of persons misrepresent themselves as a corporation, they are subsequently estopped from claiming lack of corporate life in order to avoid liability; - Also, a third party who had dealt with an unincorporated association as a corporation is precluded from denying its corporate existence on a suit brought by the alleged corporation on the contract. I. EFFECTS As to liability All persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all debts, liabilities and damages incurred or arising as a result thereof [Sec. 21]. As to the defense of lack of corporate personality When such ostensible corporation is sued, it is precluded from raising the defense of lack of corporate personality [Sec. 21].

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As to third party One who assumes an obligation to an ostensible corporation as such, cannot resist performance thereof on the ground that there was in fact no corporation. [Sec. 21] The doctrine of estoppel applies to a third party only when he tries to escape liability on a contract from which he has benefited on the ground of defective incorporation. It does not apply to a third party who is not trying to escape liability from the contract, but rather is the one claiming from the contract. [International Express Travel v. CA (2000)] II. DE FACTO CORPORATION CORPORATION BY ESTOPPEL

VS.

De facto

Estoppel

Where all the requisites of a de facto corporation are present, then the defectively formed corporation will have the status of a de jure corporation in all cases brought by or against it, except only as to the State in a direct proceeding

If any of the requisites are absent, then the estoppel doctrine may be applied only if any of the parties is estopped from defending: (1) the defendant association is estopped from defending on the ground of its lack of capacity to be sued, or (2) the defendant third party had dealt with the plaintiff as a corporation and is deemed to have admitted its existence.

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III. Nationality of Corporations A. PLACE OF INCORPORATION TEST The corporation is a national of the country under whose laws it is organized or incorporated [Sec. 123]. Dom estic corporations – organized and governed under and by Philippine laws Foreign corporations – organized under laws other than those of the Philippines and can operate only in the territory of the state under whose laws it was formed. However, they may be licensed to do business here [Campos].

B. CONTROL TEST A corporation shall be considered a Filipino corporation if the Filipino ownership of its capital stock is at least 60%, and where the 60-40 Filipino-alien equity ownership is NOT in doubt [SEC Opinion dated 6 November 1989; DOJ Opinion No. 18, s. 1989]. Therefore, its shareholdings in another corporation shall be considered to be of Filipino nationality when computing the percentage of Filipino equity of that second corporation [SEC Opinion dated 23 November 1993]. Control test is applied in the following: • Exploitation of natural resources “Only Filipino citizens or corporations whose capital stock is at least 60% owned by Filipinos can qualify to exploit natural resources.” [Sec. 2, Art. XII, Const.] • Public Utilities - “… no franchise, certificate or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least 60% of whose

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capital is owned by such citizens. “ [Sec. 11, Art. XII, Const.]

SEC Mem orandum Circular No. 8 dated 20 May 2013

The term "capital" in Sec. 11, Article XII of the 1987 Constitution refers only to shares of stock entitled to vote in the election of directors, and thus in the present case only to common shares, and not to the total outstanding capital stock [common and non-voting preferred shares].

Sec. 1. Covered corporations: All corporations engaged in identified areas of activities or enterprises specifically reserved, wholly or partly, to Philippine Nationals by the Constitution, the FIA and other existing laws, amendments thereto and IRRs of said laws except as may otherwise be provided therein.

Compliance with the required Filipino ownership of a corporation shall be determined on the basis of outstanding capital stock whether fully paid or not, but only such stocks which are generally entitled to vote are considered.

Sec. 2. All covered corporations shall, at all times, observe the constitutional or statutory ownership requirement. For purposes of determining compliance therewith, the required percentage of Filipino ownership shall be applied to both

For stocks to be deemed owned and held by Philippine citizens or Philippine nationals, mere legal title is not enough to m eet the required Filipino equity. Full beneficial ownership of the stocks, coupled with appropriate voting rights is essential. Thus, stocks, the voting rights of which have been assigned or transferred to aliens cannot be considered held by Philippine citizens or Philippine nationals. [Gamboa v. Teves (2011)]

(1) the total number of outstanding shares of stock entitled to vote in the election of directors; AND

The SC, however, reversed its ruling in 2012.

Method used when a domestic corporation has both domestic and foreign stockholders to determine whether or not said corporation is qualified to engage in a partially nationalized business [Campos].

The term “capital” is not lim ited to voting shares since the constitutional requirement of at least 60 % Filipino ownership applies not only to voting control of the corporation, but also to the beneficial ownership of the corporation. It is therefore imperative that such requirement apply uniformly and across the board to all classes of shares, regardless of nomenclature and category, comprising the capital of a corporation. Preferred shares, denied the right to vote in the election of directors, are anyway still entitled to vote on the eight specific corporate matters under Sec. 6. of the Corporation Code. Thus, the 60-40 ownership requirem ent in favor of Filipino citizens m ust apply separately to each class of shares, whether com m on, preferred non-voting, preferred voting or any other class of shares. [Gamboa v. Teves, (2012)]

(2) the total number of outstanding shares of stock, whether or not entitled to vote in the election of directors.

C. GRANDFATHER RULE

It involves the computation of Filipino ownership of a corporation in which another corporation of partly Filipino and partly foreign equity owns capital stock. The percentage of shares held by the second corporation in the first is multiplied by the latter’s own Filipino equity, and the product of these percentages is determined to be the ultimate Filipino ownership of the subsidiary corporation. The Grandfather Rule must be applied to accurately determine the actual participation, both direct and indirect, of foreigners in a corporation engaged in a nationalized activity or business. [SEC Opinion re: Silahis Intl Hotel (1987)] Compliance with the constitutional limitation[s] on engaging in nationalized activities must be determined by ascertaining

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if 60% of the investing corporation’s outstanding capital stock is owned by “Filipino citizens”, or as interpreted, by natural or individual Filipino citizens. If such investing corporation is in turn owned to some extent by another investing corporation, the same process must be observed. One must not stop until the citizenships of the individual or natural stockholders of layer after layer of investing corporations have been established, the very essence of the Grandfather Rule. [Redmont Consolidated Mines, Corp v. McArthur Mining, Inc., et al. (2010)] The Grandfather Rule applies only when the 60-40 Filipino foreign equity ownership is in doubt [i.e. in cases where the joint venture corporation with Filipino and foreign stockholders with less than 60% Filipino stockholdings (or 59%) invests in another joint venture corporation which is either 6040% Filipino alien or 59% less Filipino]. Stated differently, where the 60-40 Filipino foreign equity ownership is not in doubt, the Grandfather Rule will not apply. [Narra Nickel Mining and Dev. Corp v. Redmont Consolidated Mines Corp. (2014)] The Control Test can be, as it has been, applied jointly with the Grandfather Rule to determine the observance of foreign ownership restriction in nationalized economic activities. The Control Test and the Grandfather Rule are not, as it were, incompatible ownership-determinant methods that can only be applied alternative to each other. Rather, these methods can, if appropriate, be used cumulatively in the determination of the ownership and control of corporations engaged in fully or partly nationalized activities.

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below the threshold 60% , the corporation is im m ediately considered foreign-owned, in which case, the need to resort to the Grandfather Rule disappears. On the other hand, a corporation that complies with the 60-40 Filipino to foreign equity requirement can be considered a Filipino corporation if there is no doubt as to who has the “beneficial ownership” and “control” of the corporation. In that instance, there is no need for a dissection or further inquiry on the ownership of the corporate shareholders in both the investing and investee corporation or the application of the Grandfather Rule. As a corollary rule, even if the 60-40 Filipino to foreign equity ratio is apparently m et by the subject or investee corporation, a resort to the Grandfather Rule is necessary if doubt exists as to the locus of the “beneficial ownership” and “control.” In this case (where based on the incorporation papers, the Filipino-Owned corporation subscribed to 60% of the capital while the foreign corporation subscribed to 40% but the subscription of the former is only nominally paid-up and such corporation entered into a financial assistance agreement with the foreign-owned corporation), a further investigation as to the nationality of the personalities with the beneficial ownership and control of the corporate shareholders in both the investing and investee corporations is necessary. [Narra Nickel Mining and Dev. Corp v. Redmont Consolidated Mines Corp. (2015)]

The Grandfather Rule, standing alone, should not be used to determine the Filipino ownership and control in a corporation, as it could result in an otherwise foreign corporation rendered qualified to perform nationalized or partly nationalized activities. Hence, it is only when the Control Test is first complied with that the Grandfather Rule may be applied. Put in another m anner, if the subject corporation’s Filipino equity falls PAGE 142 OF 320

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FULLY/PARTIALLY AREAS Nationality Requirement 100% Filipino ownership 75% Filipino ownership 70% voting stock Filipino ownership [but may be reduced to 60%] 60% capital stock Filipino ownership

NATIONALIZED Industry • • • • •

Retail Trade Rural Banks Mass Media Inter-island shipping industry Banks [except Rural Banks]

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IV. Corporate Juridical Personality It commences from the date the SEC issues a certificate of incorporation under its official seal [Sec. 19].

A. DOCTRINE OF SEPARATE JURIDICAL PERSONALITY CONCEPT

•

•

Public utilities, corporations engaged in exploration, exploitation and utilization of natural resources Educational institutions

A corporation has a personality separate and distinct from that of its stockholders and members and is not affected by the personal rights, obligations, and transactions of the latter. A corporation, upon coming into existence, is invested by law with a personality separate and distinct from the persons comprising it as well as from any other legal entity to which it may be related. By this attribute, a stockholder may not, generally, be made to answer for acts or liabilities of said corporation, and vice versa. [Land Bank of the Philippines v. CA (2001)] PROPERTY Stockholders have no claim on corporate property as owners, but mere expectancy or inchoate right to the same upon dissolution of the corporation after all corporate creditors have been paid. Such right is limited only to their equity interest (doctrine of lim ited liability). Although a stockholder’s interest in the corporation may be attached by his personal creditor, corporate property cannot be used to satisfy his claim. [Wise and Co. v. Man Sun Lung (1940)] A.1. LIABILITY FOR TORTS AND CRIMES Being an entity with a separate juridical personality, a corporation can be held liable for torts committed by its officers for corporate purpose. [PNB v. CA (1978)]

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A.2. RECOVERY OF MORAL DAMAGES General rule: A corporation has the power to sue in its corporate name. [Sec. 36] Exception: Moral damages cannot be awarded in favor of corporations because they do not have feelings and cannot experience mental suffering. They may not even claim moral damages for besmirched reputation. [NAPOCOR v. Philipp Brothers Oceanic (2001)] Exception to the Exception: However, a corporation can recover moral damages under Art 2219 [7] if it was the victim of defamation, as it does not qualify whether the plaintiff is a natural or juridical person. [Pilipinas Broadcasting Network v. Ago Medical and Educational Center (2005)] CONSTITUTIONAL RIGHTS Corporate entities are entitled to due process, equal protection, and protection against unreasonable searches and seizures. However, a corporation is not entitled to the privilege against self-incrimination. [Bataan Shipyard and Eng’g Co. v. PCGG (1987)]

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personally liable for corporate liabilities. The mere fact that a stockholder owns majority of the stock of a corporation is not a ground to conclude that said stockholder and corporation are one and the same. [Land Bank of the Philippines v. CA (2001)] The veil of corporate fiction treats as separate and distinct the affairs of a corporation and its officers and stockholders. As a general rule, a corporation will be looked upon as a legal entity, unless and until sufficient reason to the contrary appears. When the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons. Also, the corporate entity may be disregarded in the interest of justice in such cases as fraud that may work inequities among members of the corporation internally, involving no rights of the public or third persons. In both instances, there must have been fraud and proof of it. [Suldao v. Cimech System Construction, Inc. (2006)] B.1. GROUNDS FOR APPLICATION OF DOCTRINE The corporate fiction may be pierced if used:

B. DOCTRINE OF PIERCING THE CORPORATE VEIL

(1) to defraud the government of taxes due it;

Piercing the veil of corporate entity is merely an equitable remedy, and may be granted only in cases: (1) when the corporate fiction is used to defeat public convenience, justify wrong, protect fraud or defend crime [Koppel Phil v. Yatco (1946)]; or (2) where the corporation is a mere alter ego; or (3) where the corporation is a business conduit of a person. [Yutivo Sons v. CTA, (1961)] In order to disregard the separate juridical personality of a corporation, the wrongdoing must be clearly and convincingly established. In the absence of any malice or bad faith, a stockholder or an officer of a corporation cannot be made

(2) to evade payment of civil liability; (3) by a corporation which is merely a conduit or alter ego of another corporation; (4) to evade compliance with contractual obligations; or (5) to evade financial obligation to its employees. Only in these and similar instances may the veil be pierced and disregarded: to ward off a judgment credit, to avoid inclusion of corporate assets as part of the estate of the decedent, to escape liability arising from a debt, or to perpetuate fraud and/or confuse legitimate issues either to promote or to shield unfair objectives to cover up an otherwise blatant violation of the prohibition against forum shopping. [PNB v. Andrada Electric and Engineering Co. (2002)]

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B.2. TEST APPLICABILITY

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IN

DETERMINING

General rule: the mere fact that a corporation owns all or substantially all of the stocks of another corporation is not sufficient to justify their being treated as one entity. Exception: the subsidiary is a mere instrum entality of the parent corporation. Circumstances rendering an instrum entality:

subsidiary

(1) the parent corporation owns all or most of the subsidiary’s capital stock; (2) the parent and subsidiary corporations have common directors or officers; (3) the parent corporation finances the subsidiary; (4) the parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation; (5) the subsidiary has grossly inadequate capital; (6) the parent corporation pays the salaries and other expenses or losses of the subsidiary; (7) the subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to or by the parent corporation; (8) in the papers of the parent corporation or in the statements of its officers, the subsidiary is described as a department or division of the parent corporation or its business or financial responsibility is referred to as the parent corporation’s own; (9) the parent corporation uses the property of the subsidiary as its own; (10) the directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take their orders from the parent corporation in the latter’s interest; and (11) the formal ledger requirements of the subsidiary are not observed. [PNB v. Ritratto Group (2001)]

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V. Incorporation and Organization A. PROMOTER Promoters – are persons who, acting alone or with others, take initiative in founding and organizing the business or enterprise of the issuer and receives consideration therefor [Sec. 3.10, RA 8799, The Securities Regulation Code]. A.1. LIABILITY OF PROMOTER General rule: the promoter binds himself personally and assumes the responsibility of looking to the proposed corporation for reimbursement. Exceptions: (1) Express or implied agreement to the contrary (2) Novation, not merely adoption ratification of the contract

or

A.2. LIABILITY OF CORPORATION FOR PROMOTER’S CONTRACTS General rule: A corporation is NOT bound by the contract. A corporation, until organized, has no life and no legal existence. It could not have had an agent [the promoter] who could legally bind it. [Cagayan Fishing Development Co., Inc. v. Sandiko (1937)] Exceptions: A corporation may be bound by the contract if it makes the contract its own by: (1) Adoption or ratification of the ENTIRE contract after incorporation.

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Note: • A corporation’s power to adopt a contract [by its promoters] must be understood to be limited to such contracts as the corporation itself, after its organization, would be authorized to make. [Builders’ Duntile Co. v. Dunn Mfg. Co. (1929)]

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courts is that “a contract made by the prom oters of a corporation on its behalf m ay be adopted, accepted or ratified by the corporation when organized”. [Rizal Light v. PSC and Morong Electric (1968)]

• Novation or the intent to novate the original contract is required to adopt or ratify the pre-incorporation contract. [Campos] • The Court’s ruling in Cagayan Fishing v. Teodoro Sandiko, that “a corporation should have a full and complete organization and existence as an entity before it can enter into any kind of a contract or transact any business”, is not absolute. One of the exceptions recognized by American

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(2) Acceptance of benefits under the contract with knowledge of the terms thereof. (3) Performance of its obligation under the contract

STEPS IN INCORPORATION Steps

Comments

a. Prom otional Stage

Prom oter

(See SEC. 2. Definitions)

•

brings together persons who become interested in the enterprise

•

aids in procuring subscriptions and sets in motion the machinery which leads to the formation of the corporation itself

•

formulates the necessary initial business and financial plans and, if necessary, buys the rights and property which the business may need, with the understanding that the corporation when formed, shall take over the same.

b. Drafting articles of incorporation. (See SEC. 14)

(see chart below)

c. Filing of articles; payment of fees.

•

AOI & the treasurer’s affidavit duly signed & acknowledged

•

must be filed w/ the SEC & the corresponding fees paid

•

failure to file the AOI will prevent due incorporation of the proposed corporation & will not give rise to its juridical personality. It will not even be a de facto corp.

•

Under present SEC rules, the AOI once filed , will be published in the SEC Weekly Bulletin at the expense of the corp. (SEC Circular # 4, 1982).

d. Exam ination of articles; approval or rejection by SEC.

Process: (a) SEC shall examine them in order to determine whether they are in conformity w/ law. (b) If not, the SEC must give the incorporators a reasonable time w/in w/c to correct or modify the objectionable portions. Grounds for rejection or disapproval of AOI: (a) AOI /amendment not substantially in accordance w/ the form prescribed PAGE 146 OF 320

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Steps

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Comments (b) purpose/s are patently unconstitutional, illegal, immoral, or contrary to government rules & regulations; (c) Treasurer’s Affidavit is false; (d) required percentage of ownership has not been complied with (Sec. 17) (e) corp.’s establishment, organization or operation will not be consistent w/ the declared national economic policies (to be determined by the SEC, after consultation w/ BOI, NEDA or any appropriate government agency -- PD 902-A as amended by PD 1758, Sec. 6 (k)) Decisions of the SEC disapproving or rejecting AOI may be appealed to the CA by petition for review in accordance w/ the ROC.

e. Issuance of certificate of incorporation.

Certificate of Incorporation will be issued if: (a) SEC is satisfied that all legal requirements have been complied with; and (b) there are no reasons for rejecting or disapproving the AOI.

•

It is only upon such issuance that the corporation acquires juridical personality. (See Sec. 19. Commencement of corporate existence)

•

Should it be subsequently found that the incorporators were guilty of fraud in procuring the certificate of incorporation, the same may be revoked by the SEC, after proper notice & hearing.

B. NUMBER AND QUALIFICATIONS OF INCORPORATORS

C. CORPORATE NAME — LIMITATIONS ON USE OF CORPORATE NAME

(1) Natural Persons

Corporate name

(2) Any number from 5-15

(1) Must not be identical or deceptively or confusingly similar to that of any existing corporation or to any other name already protected by law

(3) Majority are residents of the Philippines (4) Each incorporator must own or be a subscriber to at least 1 share of the capital stock of the corporation [Sec. 20]

(2) Not patently deceptive, confusing or contrary to existing laws [Sec. 18] Change of corporate name requires the amendment of the Articles of Incorporation: majority vote of the board and the vote or written assent of stockholders holding 2/3 of the outstanding capital stock [Sec. 16].

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Amendment of a corporation’s Articles of Incorporation to change its corporate name does not extinguish the personality of the original corporation. It is the same corporation with a different name, and its character is not changed. Consequently, the “new” corporation is still liable for the debts and obligations of the “old” corporation. [Republic Planters Bank v. CA (1992)]

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Except as provided for by special law and subject to the provisions of Sec. 13 Amount of Capital Stock to be Subscribed and Paid for the Purposes of Incorporation (1) At the time of incorporation, at least 25% of the authorized capital stock stated in the Articles of Incorporation should be subscribed; (2) At least 25% of the total subscription must be paid upon subscription;

D. CORPORATE TERM General rule: A corporation shall exist for a period not exceeding 50 years from the date of incorporation. [Sec. 11]

(3) The balance to be payable on • Dates fixed in the subscription contract without need of call or • Upon call by the BOD in the absence of fixed dates

Exceptions: (1) Sooner dissolved

(4) The paid-up capital can in no case be lower than P5,000.00 [Sec. 13]

(2) Period extended • For periods not exceeding 50 years in any single instance by an amendment of the Articles of Incorporation • Extensions may not be made earlier than 5 years prior to the original or subsequent expiry date[s] [Sec. 11] Except: If the SEC determines that there are justifiable reasons for an earlier extension.

F. ARTICLES OF INCORPORATION F.1. NATURE AND FUNCTION OF ARTICLES • Constitutes the charter of the corporation and sets forth the rules and conditions upon which the association or corporation is founded

Rationale: Corporations are creatures of the law through the State legislature. The State is therefore concerned that this privilege be enjoyed by corporations only “under the conditions and not beyond the period that it sees fit to grant; and particularly, that it not be abused in fraud and to the detriment of other parties; and for this reason, it has been ruled that the limitation to a definite period is an exercise of control in the interest of the public. [Benguet Consolidated Mining Co. v. Pineda (1956)]

The Articles must be filed with the SEC for the issuance of the Certificate of Incorporation.

E. MINIMUM CAPITAL STOCK AND SUBSCRIPTION REQUIREMENTS

(1) Must not be identical or deceptively or confusingly similar to that of any existing corporation or to any other name already protected by law

Stock corporations incorporated under the Corporation Code shall not be required to have a minimum authorized capital stock [Sec 12]

• Defines the contractual relationships between the State and the corporation, the stockholders and the State, and the corporation and the stockholders

F.2. CONTENTS I. CORPORATE NAME

(2) Not patently deceptive, confusing or contrary to existing laws [Sec. 18] The policy underlying the prohibition against the registration of a corporate name which is

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“identical or deceptively or confusingly similar” to that of any existing corporation or which is “patently deceptive or patently confusing” or “contrary to existing laws” is: (1) The avoidance of fraud upon the public which would have occasion to deal with the entity concerned; (2) The prevention of evasion legal obligations and duties, and

of

(3) The reduction of difficulties of administration and supervision over corporations. [Lyceum of the Philippines v. CA (1993)] To determine whether a given corporate name is "identical" or "confusingly or deceptively similar" with another entity's corporate name, one must evaluate corporate names in their entirety. The corporate name shall contain the word “Corporation” or “Incorporated”, or the abbreviations “Corp.” or “Inc.” respectively. [SEC Memo Circ. No.5, s.2008] Business or trade name which is different from the corporate name shall be indicated in the articles of incorporation. A company may have more than one business or trade name. [SEC Memo Circ. No. 12, s. 2008] Change of corporate name requires the amendment of the Articles of Incorporation: majority vote of the board and the vote or written assent of stockholders holding 2/3 of the outstanding capital stock, or the vote of or written assent of at least 2/3 of the members if non-stock [Sec. 16]. Amendment of a corporation’s Articles of Incorporation to change its corporate name does not extinguish the personality of the original corporation. It is the same corporation with a different name, and its character is not changed. Consequently, the “new” corporation is still liable for the debts and obligations of the “old” corporation. [Republic Planters Bank v. CA (1992)] II. PURPOSE CLAUSE • Must indicate the specific PRIMARY and SECONDARY purposes if there are more than one purpose, which should not

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contradict or change the nature of the corporation [Sec. 14(2)] • Must not be patently unconstitutional, illegal, immoral, and contrary to government rules and regulations [Sec. 17 (2)]. • Must not be for the purpose of practicing a profession. [People v. United Medical Service, 200 N.E. 157, cited in Campos] • Under the present state of our law and jurisprudence, a corporation cannot be organized for or engage in the practice of law in this country. This interdiction, just like the rule against unethical advertising, cannot be subverted by employing some so-called paralegals supposedly rendering the alleged support services. The remedy for the apparent breach of this prohibition is the concern and province of the Solicitor General who can institute the corresponding quo warranto action, after due ascertainment of the factual background and basis for the grant of the corporate charter, in light of the putative misuse thereof. [Ulep v. The Legal Clinic (1993)] III. PRINCIPAL OFFICE • Must be within the Philippines [Sec. 14 (3)] • Articles of Incorporation must specify both province or city or town where it is located • SEC Circular No. 3-2006: A specific address is now required; merely indicating Metro Manila is no longer allowed. Important for [1] determining venue in an action by or against the corporation, and [2] determining the province where a chattel mortgage of shares should be registered. [Chua Guan vs. Samahang Magsasaka (1935)] The residence of a corporation is the place where its principal office is located, as stated in its Articles of Incorporation. To insist that the proper venue is the actual principal office and not that stated in its Articles of Incorporation would indeed create confusion and work untold inconvenience. Enterprising litigants may, out of some ulterior motives, easily circumvent the rules on venue by the

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simple expedient of closing old offices and opening new ones in another place that they may find well to suit their needs. [Hyatt Elevators v. Goldstar Elevators (2005)]

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If STOCK corporation: • authorized capital stock in lawful money of the Philippines • the number of shares into which the ACS is divided

IV. CORPORATE TERM

• If with par value shares, the par value of each share [Sec. 14[8], Sec. 15[7]].

• Maximum life of 50 years. • Extendible for a period not exceeding 50 years at any one instance. No extension, however, can be made earlier than 5 years before the end of the term. [Sec. 11] Extension requires an amendm ent of the Articles of Incorporation subject to the exercise of appraisal right by the dissenting stockholder [Sec. 37].

• names, citizenship, residences of original subscribers • amount subscribed and paid on each subscription • fact that some or all shares are w/o par value If NON-STOCK: • amount of capital

V. NAMES, CITIZENSHIP AND RESIDENCES OF INCORPORATORS VI. NUMBER, NAMES, CITIZENSHIP AND RESIDENCES OF DIRECTORS/TRUSTEES. • Stock corporations: directors • Non-stock corporations: trustees General rule: Not less than 5 but not more than 15 directors/trustees Exceptions: Non-stock corporations whose articles or by-laws may provide for more than 15 trustees [Sec. 92] Banks may have up to 21 directors for cases of mergers and consolidation. [Sec. 17, General Banking Act]

• names, nationalities and residences of contributors • amount contributed by each VII. AMOUNT PAID BY EACH SUBSCRIBER ON THEIR SUBSCRIPTION, W HICH SHALL NOT BE LESS THAN 25% OF SUBSCRIBED CAPITAL AND SHALL NOT BE LESS THAN P5,000 [Sec 15 (8,9)] VIII. NAME OF TREASURER ELECTED BY THE SUBSCRIBERS [Sec 15(10)] IX. OTHER MATTERS

Educational non-stock corporations:

(1) Classes of shares, as well as preferences or restrictions on any such class [Sec. 6].

• trustees may not be less than 5 nor exceed 15

(2) Denial or restriction of pre-emptive right [Sec.39].

• number of trustees shall be in multiples of 5 [Sec. 108]

(3) Prohibition against transfer of stock which would reduce stock ownership to less than the required minimum in the case of a nationalized business or activity [Sec. 15(11)].

Nationalized industries

or

partly-nationalzed

• Aliens may be directors but only in such number as may be proportional to their allowable ownership of shares

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No transfer clause If the foreign shareholdings of a landholding corporation exceeds 40%, it is not the foreign stockholders’ ownership of the shares which is adversely affected but the capacity of the corporation to own land – that is, the corporation becomes disqualified to own Contents of AOI Corporate Name

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land. No law disqualifies a person from purchasing shares in a landholding corporation even if the latter will exceed the allowed foreign equity, what the law disqualifies is the corporation from owning land. [J.G. Summit Holdings, Inc. v. CA (2005)] Comments

•

Essential to its existence since it is through it that the corporation can sue and be sued and perform all legal acts

•

A corporate name shall be disallowed by the SEC if the proposed name is either: (1) identical or deceptively or confusingly similar to that of any existing corporation or to any other name already protected by law; or (2) patently deceptive, confusing or contrary to existing laws. (Sec. 18)

LYCEUM OF THE PHILS. VS. CA (219 SCRA 610) The policy underlying the prohibition against the registration of a corporate name which is “identical or deceptively or confusingly similar” to that of any existing corporation or which is “patently deceptive or patently confusing” or “contrary to existing laws is: (1) the avoidance of fraud upon the public which would have occasion to deal with the entity concerned; (2) the prevention of evasion of legal obligations and duties, and (3) the reduction of difficulties of administration and supervision over corporations. Purpose Clause

Principal Office

Term of Existence

•

A corporation can only have one (1) primary purpose. However, it can have several secondary purposes.

•

A corporation has only such powers as are expressly granted to it by law & by its articles of incorporation, those which may be incidental to such conferred powers , those reasonably necessary to accomplish its purposes & those which may be incident to its existence.

•

Corporation may not be formed for the purpose of practicing a profession like law, medicine or accountancy

•

Must be within the Philippines

•

Must specify city or province

•

Street/number not necessary

•

important in determining venue in an action by or against the corp., or on determining the province where a chattel mortgage of shares should be registered

•

Cannot specify term which is longer than 50 years at a time

•

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Contents of AOI

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Comments original or subsequent expiry date UNLESS there are justifiable reasons for an earlier extension.

Incorporators and Directors

Capital Stock

Other matters

•

Names, nationalities & residences of the incorporators;

•

Names, nationalities & residences of the directors or trustees who will act as such until the first regular directors or trustees are elected;

•

Treasurer who has been chosen by the pre-incorporation subscribers/members to receive on behalf of the corporation, all subscriptions /contributions paid by them.

•

Amount of its authorized capital stock in lawful money of the Philippines

•

Number of shares into which it is divided

•

In case the shares are par value shares, the par value of each,

•

Names, nationalities and residences of the original subscribers, and the amount subscribed and paid by each on his subscription, and if some or all of the shares are without par value, such fact must be stated

•

For a non-stock corporation, the amount of its capital, the names, nationalities and residences of the contributors and the amount contributed by each

•

25% of 25% rule to be certified by Treasurer

•

Paid up capital should not be less than P5,000

•

Classes of shares into w/c the shares of stock have been divided, preferences of, and restrictions on any such class; and any denial or restriction of the preemptive right of stockholders should also be expressly stated in said articles.

•

If the corporation is engaged in a wholly or partially nationalized business or activity, the AOI must contain a prohibition against a transfer of stock which would reduce the Filipino ownership of its stock to less than the required minimum.

F.3. AMENDMENT Amendment of Incorporation

I. LIMITATIONS the

Articles

of

(1) Requirements imposed by the Code or by special laws

(1) By a majority vote of the BOD or trustees

(2) Must be for a legitimate purpose

(2) And the vote or written assent of

(3) Must be approved by the directors/trustees and the stockholders/members through the vote requirement

• 2/3 of the outstanding capital stock, without prejudice to the appraisal right of dissenting stockholders in accordance with the provisions of this Code, • 2/3 of the members if it be a non-stock corporation. [Sec. 16]

(4) Appraisal Right (5) Both the original and the amended articles together must contain all the provisions required by law to be set out in the articles

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(6) If the corporation is governed by a special law, the amended articles must be accompanied by a favorable recommendation of the appropriate government agency to the effect that such amendment is in accordance with law [Lopez]

F.4. NON-AMENDABLE ITEMS The following items state accomplished facts, therefore, cannot be amended: (1) The names, nationalities and residences of the incorporators. Otherwise, an amendment would go against the definition of “incorporators” in Sec. 5

(7) Will take effect only • Upon their approval by the SEC by the issuance of a certificate of amended articles • Or from the date of filing with the SEC if not acted upon within 6 months from the date of filing for a cause not attributable to the corporation

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(2) Treasurer-in-trust (3) First set of directors or trustees (4) Original stock subscriptions and paid-in capital (5) Place and date of execution (6) Witnesses [De Leon]

II. PROCEDURE (1) The original and amended articles together shall contain all provisions required by law to be set out in the articles of incorporation (2) The articles, as amended shall be indicated by underscoring the change or changes made (3) A copy shall be submitted to the SEC • Duly certified under oath by the corporate secretary and a majority of the directors or trustees • Stating the fact that the amendment or amendments have been duly approved by the required vote of the stockholders or members The following items are amendable under Sec. 16: (1) Change of name of the Corporation

Note: Articles of Incorporation must be accompanied by Treasurer’s sworn statement of compliance with Sec. 13 on amount of capital to be subscribed and paid for the purposes of incorporation; otherwise, SEC shall not accept the Articles of Incorporation [Sec. 14].

G. REGISTRATION AND ISSUANCE OF CERTIFICATE OF INCORPORATION G.1. REGISTRATION OF THE ARTICLES OF INCORPORATION DOCUMENTS TO BE FILED W ITH SEC: (1) Articles of Incorporation, and By-Laws (if crafted prior to incorporation) (2) Treasurer’s Affidavit certifying that 25% of the total authorized capital stock has been subscribed and at least 25% of such has been fully paid in cash or property

(2) Adding to or changing the purpose/s

[Note: SEC Resolution No. 0331 dated July 20, 2012 no longer requires a bank certificate of deposit covering the paid-up capital if payment for shares is made in cash; where the capital stock is paid by a combination of cash and property, only the portion paid by way of property will require the submission of supporting documents.]

(3) Change of principal office (4) Change in the number of directors or trustees (5) Increase or decrease in authorized capital stock [subject to Sec. 38]

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corporate books and records to determine the existence of paid-up capital (4) Undertaking to change the corporate name in case there is another person or entity with same or similar name that was previously registered (5) Certificate of authority from proper government agency whenever appropriate like BSP for banks and Insurance Commission for insurance corporations. [Sundiang and Aquino] G.2. ISSUANCE OF CERTIFICATE INCORPORATION BY SEC

OF

Effect: Commencement of corporate existence and juridical personality [Sec. 19] Revocation of certificate of incorporation: If incorporators are found guilty of fraud in procuring the same after due notice and hearing [Sec. 6(i), PD 902-A] G.3. GROUNDS FOR DISAPPROVING THE ARTICLES OF INCORPORATION: • Does not substantially comply with form prescribed • Purpose is patently unconstitutional, illegal, immoral, contrary to government rules and regulations • Treasurer’s Affidavit concerning the amount of capital subscribed and or paid is false • Required percentage of ownership of Filipino citizens has not been complied with when required by existing laws or the Constitution. [Sec. 17] REMEDY in case of rejection - petition for review in accordance with the Rules of Court, i.e. Rule 43 [Sec. 6, last par., PD 902-A] SEC shall give the incorporators reasonable tim e to correct or modify objectionable portions of the articles or amendment [Sec. 17].

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H. ADOPTION OF BY-LAWS By-laws – has traditionally been defined as regulations, ordinances, rules or laws adopted by an association or corporation for its internal governance, including rules for routine matters such as calling meetings [SMC v. Mandaue (2005)]. Adoption of By-Laws May be done either: (1) Prior to incorporation - approved and signed by all the incorporators and submitted to SEC together with Articles of Incorporation; or (2) After incorporation - within 1 month after receipt of official notice of the issuance of its certificate of incorporation by the SEC. [Sec. 46] Effect of failure to file the By-Laws within the period Does not im ply the "dem ise" of the corporation. By-laws may be required by law for an orderly governance and management of corporations but they are not essential to corporate birth. Nonetheless, failure to file them within the period required by law by no means tolls the automatic dissolution of a corporation. [Loyola Grand Villas Homeowners Association v. CA (1997)] Note: Sec. 22 on the effect of failure to formally organize within 2 years from incorporation, the corporation’s corporate powers cease and the corporation is deemed dissolved. Organization includes: the filing and approval of by-laws with the SEC and the election of directors and officers [Campos]. H.1. NATURE AND FUNCTIONS OF BYLAWS Nature: It is a product of agreement of the stockholders or members [Campos]. Function: It establishes the rules for internal government of the corporation [Campos].

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It also regulates the affairs and relationship between and among stockholders, BOD and corporation [Lopez]. H.2. REQUISITES OF VALID BY-LAWS Approval requirement: Must be approved by the affirmative vote of the stockholders representing MAJORITY of the outstanding capital stock or majority of members

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II. HOW DELEGATION REVOKED: Any power delegated to the BOD or trustees to amend or repeal any by-laws or adopt new by-laws shall be considered as revoked whenever stockholders owning or representing a majority of the outstanding capital stock or a majority of the members in non-stock corporations, shall so vote at a regular or special meeting. [Sec. 48]

If filed pre-incorporation: must be approved and signed by all incorporators Record-Keeping: Must be kept in the principal office of the corporation, subject to inspection of stockholders or members during office hours [Sec. 74] No provision of the by-laws can be adopted if it is contrary to law. [Grace Christian High School v. CA (1997)] H.3. BINDING EFFECTS When Binding: ONLY from date of issuance of SEC of a certification that the by-laws are not inconsistent with the Code [Sec. 48] Pending such approval, they cannot bind stockholders or corporation Effect to third parties: Mere internal rules among stockholders and cannot affect or prejudice 3rd persons who deal with the corporation unless they have knowledge of the same [China Banking Corp v CA (1997)]. H.4. AMENDMENT OR REVISION Effected by: majority vote of the members of the board and m ajority vote of owners of the Outstanding Capital Stock or members, in a meeting duly called for the purpose I. DELEGATION TO THE BOD OF POW ER TO AMEND OR REPEAL BYLAW S: By vote of stockholders representing 2/3 of the Outstanding Capital Stock or 2/3 of the members [Sec. 48] PAGE 155 OF 320

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(2) “Such powers as are essential or necessary to carry out its purpose or purposes as stated in the Articles of Incorporation” – catch-all phrase [Sec. 36(11)].

VI. Corporate Powers A. GENERAL POWERS, THEORY OF GENERAL CAPACITY [SEC. 36] (1) Sue and be sued in its corporate name;

B. SPECIFIC POWERS, THEORY OF SPECIFIC CAPACITY [SECS. 37-44]

(2) Succession;



(3) Adopt and use a corporate seal;

(1) Power to Extend or Shorten Corporate Term

(4) Amend its Articles of Incorporation; (5) Adopt and amend by-laws; (6) For stock corporations - issue or sell stocks to subscribers and sell treasury stocks; for non-stock corporation - admit members to the corporation; (7) Purchase, receive, take or grant, hold, convey, sell, lease, pledge, mortgage and otherwise deal with such real and personal property, pursuant to its lawful business; (8) Enter into merger or consolidation with other corporations as provided in the Code; (9) Make reasonable donations, including those for the public welfare or for hospital, charitable, cultural, scientific, civic, or similar purposes: Provided, no corporation, domestic or foreign, shall give donations in aid of any political party or candidate or for purposes of partisan political activity; (10) Establish pension, retirement, and other plans for the benefit of its directors, trustees, officers and employees; and (11) Exercise such other powers as may be essential or necessary to carry out its purposes NOTE: The Corporation has implied powers which are deemed to exist because of the following provisions:

(2) Power to Increase or Decrease Capital Stock or Incur, Create, Increase Bonded Indebtedness (3) Power to Deny Pre-Emptive Rights (4) Power to Sell or Dispose of Corporate Assets (5) Power to Acquire Own Shares (6) Power to Invest Corporate Funds in Another Corporation or Business (7) Power to Declare Dividends (8) Power to Contract

Enter

Into

Management

B.1. EXTEND OR SHORTEN CORPORATE TERM [SEC. 37]

THE

(1) Must be approved by majority vote of the BOD/ BOT (2) Ratified at a meeting by shareholders representing 2/3 of the outstanding capital stock/ 2/3 of members of nonstock corporations (3) Written notice of meeting (includes proposed action, time and place of meeting) shall be addressed to each shareholders/member at his place of residence and deposited to the addressee in the post office, or served personally (4) Appraisal right may be exercised by the dissenting stockholder for BOTH extension and shortening of corporate term [See also Sec. 81]

(1) “Except such as are necessary or incidental to the exercise of the powers so conferred” [Sec. 45] PAGE 156 OF 320

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B.2. INCREASE OR DECREASE CAPITAL STOCK OR INCUR, CREATE, INCREASE BONDED INDEBTEDNESS [SEC. 38]

(a) From and after approval of the SEC of its certificate of filing, the capital stock shall stand increased or decreased and the incurring, creating or increasing of any bonded indebtedness authorized

(1) Same requirements above from 1-3 (2) A certificate in duplicate must be signed by a majority of the directors of the corporation (countersigned by the chairman and the secretary of the shareholders meeting), setting forth:

(b) SEC shall not accept for filing any certificate of increase unless accompanied by the sworn statement of the treasurer of the corporation showing:

(a) That requirements of this section have been complied with

(i) That at least 25% of such increased capital stock have been subscribed and

(b) The amount of the increase or diminution of the capital stock (c) In case of increase,

(ii) that at least 25% of the amount subscribed has been paid or that there has been transferred to the corporation property the value of which is equivalent to 25% of the subscription

(i) the amount of capital stock or number of shares of no-par stock actually subscribed (ii) names, nationalities and residences of the persons subscribing

(c) SEC shall not approve any decrease in the capital stock if its effect shall prejudice the rights of corporate creditors

(iii) the amount of no-par stock subscribed by each (iv) the amount paid by each on his subscription, or the amount of capital stock or number of shares of no-par stock allotted to each stockholder if such increase is for the purpose of making effective stock dividend (d) any bonded indebtedness to be incurred, created or increased (e) the actual indebtedness of the corporation on the day of the meeting (f) the amount of stock represented at the meeting (g) the vote authorizing the increase or diminution of the capital stock, or the incurring, creating or increasing of any bonded indebtedness

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(5) Bonds issued by a corporation shall be registered with the SEC B.3. DENY PREEMPTIVE RIGHT [SEC. 39] General Rule: All shareholders of a stock corporation have preemptive right to subscribe to all issues or disposition of shares of any class, in proportion to their respective shareholdings Exception: If such right is denied by the Articles of Incorporation or an amendment thereto Pre-emptive right shall not extend to:

(3) prior approval of SEC is required (4) duplicate certificates shall be kept on file in the office of the corporation and the other shall be filed with the SEC, attached in the original articles of incorporation. PAGE 157 OF 320

(1) shares to be issued in compliance with laws requiring stock offerings or minimum stock ownership by the public (2) shares to be issued in good faith with the approval of 2/3 of the stockholders representing outstanding capital stock, in exchange for property needed for corporate purposes or in payment of a previously contracted debt

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B.4. SELL OR DISPOSE OF SUBSTANTIALLY ALL ITS ASSETS [SEC. 40] (1) Same requirements from 1-3 as Sec. 37 above

B.5. ACQUIRE ITS OWN SHARES [SEC. 41] (1) For a legitimate corporate purpose/s, including but not limited to the following: (a) To eliminate fractional shares arising out of stock dividends

(2) Any dissenting shareholders may exercise his appraisal right

(b) To collect or compromise an indebtedness to the corporation, arising out of unpaid subscription, in a delinquency sale, and to purchase delinquent shares sold during said sale; and

(3) Deemed to cover substantially all the corporate property and assets (4) After authorization by the shareholders/members, the BOD/BOT may abandon such sale, lease, exchange, mortgage, pledge or other disposition, subject to the rights of third parties under any contract relating thereto, without further action or approval by the shareholders/ members (5) Corporation is not restricted in its power to sell or dispose of its assets without the authorization of shareholders or members: (a) if the same is necessary in the usual and regular course of business of the corporation or (b) if the proceeds of the sale will be appropriated for the conduct of its remaining business While the Corporation Code allows the transfer of all or substantially all the properties and assets of a corporation, the transfer should not prejudice the creditors of the assignor. The only way the transfer can proceed without prejudice to the creditors is to hold the assignee liable for the obligations of the assignor. The acquisition by the assignee of all or substantially all of the assets of the assignor necessarily includes the assumption of the assignor’s liabilities, unless the creditors who did not consent to the transfer choose to rescind the transfer on the ground of fraud. To allow an assignor to transfer all its business, properties and assets without the consent of its creditors and without requiring the assignee to assume the assignor’s obligations will defraud the creditors. The assignment will place the assignor’s assets beyond the reach of its creditors. [Caltex (Phils.) Inc. v. PNOC Shipping and Transport Corp. (2006)]

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(c) To pay dissenting or withdrawing stockholders (2) Provided there are unrestricted retained earnings in the corporate books to cover the shares purchased or acquired B.6. INVEST IN ANOTHER CORPORATION OR BUSINESS [SEC. 42] (1) Same requirements from 1-3 as Sec. 37 above (2) Any dissenting shareholders shall have appraisal right (3) Where the investment is reasonably necessary to accomplish the corporation’s primary purpose, the approval of the shareholders/ members is not necessary Notes: If it is for the same purpose, or incidental, or related to its PRIMARY purpose, the board can invest the corporate fund WITHOUT the consent of the stockholders. No appraisal right. If the investment is in another corporation of different business or purpose BUT in pursuance of the SECONDARY purpose, the affirmative vote of majority of the board consented by stockholders/ members is required. If the investment is OUTSIDE the purpose/s for which the corporation was organized, Articles of Incorporation must be amended first, otherwise it will be an Ultra Vires act. A private corporation, in order to accomplish its purpose as stated in its articles of incorporation, and subject to the limitations

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imposed by the Corporation Law, has the power to acquire, hold, mortgage, pledge or dispose of shares, bonds, securities, and other evidences of indebtedness of any domestic or foreign corporation. Such an act, if done in pursuance of the corporate purpose, does not need the approval of the stockholders; but when the purchase of shares of another corporation is done solely for investment and not to accomplish the purpose of its incorporation, the vote of approval of the stockholders is necessary. [De La Rama v. Ma-ao Sugar Central Co. (1969)] B.7. DECLARE DIVIDENDS [SEC. 43] (1) Out of unrestricted retained earnings (2) Payable in cash, in property, or in stock to all shareholders on the basis of outstanding stock held by them

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Stock dividends cannot be issued to a person who is not a stockholder in payment of services rendered. A corporation may legally issue shares of stock in consideration of services rendered to it by a person not a stockholder, or in payment of its indebtedness. A share of stock issued to pay for services rendered is equivalent to a stock issued in exchange of property, because services is equivalent to property. It is the shares of stock that are originally issued by the corporation and forming part of the capital that can be exchanged for cash or services rendered, or property. A share of stock coming from stock dividends declared cannot be issued to one who is not a stockholder of a corporation. [Nielson and Co. v. Lepanto Consolidated Mining (1968)]

(3) Any cash dividend due on delinquent stock shall first be applied to the unpaid balance on the subscription plus costs and expenses

Cash Dividends v. Stock Dividends

(4) Stock dividends shall be withheld from the delinquent stockholder until his unpaid subscription is fully paid

Voting Requirements for issuance

Board of Directors

(5) Should be approved by 2/3 of shareholders representing the outstanding capital stock at a regular/special meeting called for that purpose

Board of Directors + 2/3 of SH holding OCS

Effect on delinquent stock

Shall be applied to the unpaid balance on the subscription plus costs and expenses.

Shall be withheld from the delinquent stockholder until his unpaid subscription is fully paid.

(a) When justified by definite corporate expansion projects or programs approved by the BOD

Can be issued by Executive Committee?

No. [Sec. 35]

No, since this requires SH approval.

(b) When the corporation is prohibited under any loan agreement with any financial institution or creditor from declaring dividends without its consent, and such consent has not yet been secured



Cash Dividend

(6) Stock corporations- prohibited from retaining surplus profits in excess of 100% of their paid-in capital stock, except:

(c) When it can be clearly shown that such retention is necessary under special circumstances obtaining in the corporation

B.8. ENTER INTO CONTRACTS [SEC. 44]

Stock Dividend

MANAGEMENT

(1) Should be approved by the BOD and by shareholders owning at least the majority of the outstanding capital stock or at least a majority of the members of both the managing and the

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managed corporation at a meeting duly called for that purpose (2) Should be approved by the 2/3 of stockholders owning outstanding capital stock/members of the managed corporation when: (1) A stockholder or stockholders representing the same interest of both the managing and managed corporations own more than 1/3 of the total outstanding capital stock entitled to vote of the managing corporation; or (2) A majority of the members of the BOD of the managing corporation also constitute a majority of the BOD of the managed corporation (3) No management contract shall be entered into for a period longer than 5 years for any one term (4) 1-3 above applies to any contract whereby a corporation undertakes to manage or operate all or substantially all of the business of another corporation, whether such are called service contracts, operating agreements or otherwise (5) Service contracts or operating agreements which relate to exploration, development, exploitation or utilization of natural resources may be entered into for such periods as may be provided in the pertinent laws and regulations NOTES: 2 general restrictions on the power of the corporation to acquire and hold properties: (1) property must be reasonably and necessarily required by the business (2) that the power shall be subject to the limitations prescribed by other special laws and the Constitution (corporation may not acquire more than 30% of voting stocks of a bank; corporations are restricted from acquiring public lands except by lease of not more than 1000 hectares)

MERCANTILE LAW

B.9. ULTRA VIRES ACTS Definition Ultra Vires acts are those acts which a corporation is not empowered to do or perform because they are not conferred by its Articles of Incorporation or by the Corporation Code, or not necessary or incidental to the exercise of the powers so conferred [Sec. 45]. Types of Ultra Vires Acts (1) Acts done beyond the powers of the corporation as provided in the law or its articles of incorporation; (2) Acts or contracts entered into in behalf of a corporation by persons who have no corporate authority (Note: This is technically Ultra Vires acts of officers and not of the corporation); (3) Acts or contracts, which are per se illegal as being contrary to law. [Villanueva] i. APPLICABILITY OF ULTRA VIRES DOCTRINE It is a question, therefore, in each case of the logical relation of the act to the corporate purpose expressed in the charter. If that act is one which is lawful in itself, and not otherwise prohibited, is done for the purpose of serving corporate ends, and is reasonably tributary to the promotion of those ends, in a substantial, and not in a remote and fanciful sense, it may fairly be considered within the charter powers. The test to be applied is whether the act in question is in direct and immediate furtherance of the corporation’s business, fairly incident to the express powers and reasonably necessary to their exercise. If so, the corporation has the power to do it; otherwise, not. [Montelibano v. BacolodMurcia Milling Co., Inc. (1962)] ii. CONSEQUENCES OF ULTRA VIRES ACTS (1) Executed contract – courts will not set aside or interfere with such contracts;

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(2) Executory contracts – no enforcement even at the suit of either party (void and unenforceable);

C. HOW (CORPORATE POWERS) EXERCISED

(3) Partly executed and partly executory – principle of “no unjust enrichment at expense of another” shall apply;

C.1. BY THE SHAREHOLDERS

(4) Executory contracts apparently authorized but Ultra Vires – the principle of estoppel shall apply. Ultra Vires v. Illegal Acts

i. CORPORATE ACTS REQUIRING APPROVAL OF STOCKHOLDERS OR MEMBERS (VOTING AND NONVOTING SHARES) General Rule: Vote necessary to approve a particular corporate act as provided in this Code shall be deemed to refer only to stocks with voting rights [Sec. 6] Exceptions [Sec. 6]

Ultra Vires Acts

Illegal Acts

Not necessarily unlawful, but outside the powers of the corporation

Unlawful; against law, morals, public policy, and public order

Can be ratified

Cannot be ratified

Can bind the parties if wholly or partly executed

Cannot parties

the

(3) Sale, Lease, Mortgage or Other Disposition of Substantially all corporate assets [Sec. 40]

Voidable, and may be enforced by performance, ratification or estoppel

Void and cannot be validated

(4) Incurring, Creating or Increasing Bonded Indebtedness [Sec. 38]

bind

Voting and non-voting shares shall be entitled to vote in the following cases: (1) Amendment of Articles of Incorporation (2) Adoption, Amendment and Repeal of ByLaws [Sec. 48]

(5) Increase or Decrease of Capital Stock [Sec. 38] (6) Merger and Consolidation [Sec. 76-80]

Rem edies in Case of Ultra Vires Acts (1) State (a) Dissolution of the corporation thru a quo warranto proceeding

(7) Investment of funds in another corporation or business or for any purpose other than the primary purpose for which it was organized [Sec. 42]

(b) Injunction (c) Suspension or revocation of the certificate of registration by the SEC (2) Stockholders (a) Injunction (b) Derivative suit (c) Ratification (except when a 3rd party is prejudiced or the act is illegal) (3) Creditors (a) Nullification of contract in fraud of creditors PAGE 161 OF 320

Requisites [Sec. 42] (Bar 1995): (a) Approval of majority of the BOD or trustees (b) Ratification by the stockholders representing at least 2/3 of the Outstanding Capital Stock or the members at a meeting duly called for the purpose (c) Written notice addressed to each stockholder or member at his place of residence as shown on the books of the corporation (d) Appraisal right available to dissenting stockholders or members

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(8) Dissolution of the Corporation [Sec. 118121]

Requisites of a VALID Corporate Act by the BOD [Sec. 25]:

ii. CORPORATE ACTS REQUIRING APPROVAL OF STOCKHOLDERS OR MEMBERS (VOTING SHARES ONLY)

(a) The Board must act as a BODY in a meeting. Note: Current SEC regulations allow BOD meetings by teleconferencing or videoconferencing (SEC Memo Circular No.15, series of 2001, in relation to Sec. 16 of R.A. 8792)

(1) Declaration of Stock Dividends [Sec. 43] (2) Management Contracts [Sec. 44] (3) Fixing the Consideration of No-Par shares [Sec. 62] (4) Fixing the Compensation of Directors [Sec. 30] C.2. BY THE BOD Board as Powers

Repository

of

Corporate

General Rule (Doctrine Of Centralized Management): The corporate powers of the corporation shall be exercised, all business conducted, and all property of controlled and held by the BOD or trustees. [Sec. 23] Exceptions: (1) Executive Committee duly authorized in the by-laws [Sec. 35]; (2) A contracted manager which may be an individual, a partnership, or another corporation. NOTE: In case the contracted manager is another corporation, the special rule in Sec. 44 applies. (3) In case of close corporations, the stockholders may manage the business of the corporation rather than by a BOD, if the Articles of Incorporation so provide [Sec. 97] The power to purchase real property is vested in the BOD or trustees. While a corporation may appoint agents to negotiate for the purchase of real property needed by the corporation, the final say will have to be with the board, whose approval will finalize the transaction. [Spouses Constantine Firme v. Bukal Enterprises and Development Corporation (2003)]

(b) There must be a VALIDLY constituted meeting. (c) Their act must be supported by a MAJORITY OF THE QUORUM duly assembled (Exception: Election of officers requires a vote of majority of ALL the members of the board) (d) The act must be within the powers conferred to the Board. C.3. BY THE OFFICERS Corporate Officer

Corporate Employee

Position is provided for in the by-laws or under the Corp. Code

Employed through the action of the managing officer of the corporation

RTC has jurisdiction in case of labor dispute

NLRC has jurisdiction in case of labor disputes

I. W HO ARE CORPORATE OFFICERS [SEC. 25] President

Secretary

Treasurer

Director

YES

NO

NO

Filipino Citizen

NO

YES

YES

Residency

NO

YES

YES

Prohibited concurren t positions

Secretary or Treasurer

President

President

(1) President – must be a director; (2) Treasurer – may or may not be a director; as a matter of sound corporate practice, must be a resident and citizen of the Phil (SEC opinion)

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(3) Secretary – need not be a director unless required by the by-laws; must be a resident and citizen of the Philippines; and (4) Other officers as may be provided in the by-laws. NOTE: Any 2 or more positions may be held concurrently by the same person, EXCEPT that no one shall act as president and secretary or as president and treasurer at the same time. Additional qualifications of officers may be provided for in the by-laws [Sec. 47(5)] Conformably with Sec. 25 of the Corporation Code, a position must be expressly mentioned in the by-Laws in order to be considered as a corporate office. Thus, the creation of an office pursuant to or under a by-Law enabling provision is not enough to make a position a corporate office. Guerrea v. Lezama (1958), the first ruling on the matter, held that the only officers of a corporation were those given that character either by the Corporation Code or by the By-Laws; the rest of the corporate officers could be considered only as employees or subordinate officials. [Matling Industrial and Commercial Corp. v. Coros (2010)] A different interpretation can easily leave the way open for the BOD to circumvent the constitutionally guaranteed security of tenure of the employee by the expedient inclusion in the By-Laws of an enabling clause on the creation of just any corporate officer position. “An ‘office’ is created by the charter of the corporation and the officer is elected (or appointed) by the directors or stockholders” [Real v. Sangu Philippines citing Easycall Communications Phils., Inc. v. King, 2005, (2011)] “Corporate officers’ in the context of PD No. 902-A are those officers of the corporation who are given that character by the Corporation Code or by the corporation’s bylaws. There are three specific officers whom a corporation must have under Sec. 25 of the

MERCANTILE LAW

Corporation Code. These are the president, secretary and the treasurer. The number of officers is not lim ited to these three. A corporation may have such other officers as may be provided for by its by-laws like, but not limited to, the vice-president, cashier, auditor or general manager. The number of corporate officers is thus limited by law and by the corporation’s by-laws” (citing Garcia v. Eastern Telecommunications Philippines, Inc., 2009). ii. DISQUALIFICATIONS [SEC. 27] (1) Convicted by final judgment of an offense punishable by imprisonment for a period exceeding 6 years (2) Convicted by final judgment of a violation of the Corporation Code committed within 5 years prior to the date of his election or appointment. This includes violations of rules and regulations issued by the SEC to implement the provisions of the Corporation Code. III. AUTHORITY OFFICERS

OF

CORPORATE

A person dealing with a corporate officer is put on inquiry as to the scope of the latter’s authority but an innocent person cannot be prejudiced if he had the right to presume under the circumstances the authority of the acting officers. Associated Bank v. Pronstroller (2008, Nachura): Q: What is the Doctrine of Apparent Authority? A: If a corporation knowingly permits one of its officers, or any other agent, to act within the scope of an apparent authority, it holds him out to the public as possessing the power to do those acts; the corporation will, as against anyone who has in good faith dealt with it through such agent, be estopped from denying the agent’s authority.

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D. TRUST FUND DOCTRINE Trust Fund Doctrine means that the capital stock, properties and other assets of a corporation are regarded as equity in trust for the payment of corporate creditors. Stated simply, the trust fund doctrine states that all funds received by the corporation in payment of the shares of stock shall be held in trust for the corporate creditors and other stockholders of the corporation. Under such doctrine no fund shall be used to buy back the issued shares of stock except only in instances specifically allowed by the Corporation Code. [Boman Environmental Development Corporation v. CA (1988)] The subscribed capital is the same amount that can loosely be termed as the “trust fund” of the corporation. The “Trust Fund” doctrine considers this subscribed capital as a trust fund for the payment of the debts of the corporation, to which the creditors may look for satisfaction. Until the liquidation of the corporation, no part of the subscribed capital m ay be returned or released to the stockholder (except in the redemption of redeem able shares) without violating this principle. Thus, dividends must never impair the subscribed capital; subscription commitments cannot be condoned or remitted; nor can the corporation buy its own shares using the subscribed capital as the consideration therefor. [NTC v. CA (1999)] Under Sec. 43 of Code, the corporation can declare dividends only out of "unrestricted retained earnings;" and that under Sec. 122, no corporation shall distribute any of its assets or property except upon lawful dissolution and after payment of all its debts and liabilities. These provisions in essence provide for the "trust fund doctrine" where the "subscription to the capital of a corporation constitute a fund to which creditors have a right to look for satisfaction of their claims." [Philippine Trust Co. v. Rivera (1923)] "The Trust Fund Doctrine, first enunciated by this Court in the 1923 case of Philippine Trust Co. v. Rivera' is the underlying principle in the

MERCANTILE LAW

procedure for the distribution of capital assets, embodied in Corporation Code, which allows the distribution of corporate capital only in three instances: (1)

amendment of the Articles of Incorporation to reduce the authorized capital stock,

(2)

purchase of redeemable shares by the corporation, regardless of the existence of unrestricted retained earnings, and

(3)

dissolution and eventual liquidation of the corporation.

Furthermore, the doctrine is articulated in Sec. 41 on the power of a corporation to acquire its own shares and in Sec. 122 on the prohibition against the distribution of corporate assets and property unless the stringent requirements therefore are complied with. [Ong Yong v. Tiu (2003)] The creditors of a corporation have the right to assume that so long as there are debts and liabilities, the BOD will not use corporate assets to purchase its own shares of stock or to declare dividends to its stockholders when the corporation is insolvent. [Steinberg v. Velasco (1929)] The trust fund doctrine is not limited to reaching the stockholder’s unpaid subscriptions. The scope of the doctrine when the corporation is insolvent encompasses not only the capital stock, but also other property and assets generally regarded in equity as a trust fund for the payment of corporate debts. All assets and property belonging to the corporation held in trust for the benefit of creditors that were distributed or in the possession of the stockholders, regardless of full payment of their subscriptions, may be reached by the creditor in satisfaction of its claim. Also, under the trust fund doctrine, a corporation has no legal capacity to release an original subscriber to its capital stock from the obligation of paying for his shares, in whole or in part, without a valuable consideration, or fraudulently, to the prejudice of creditors. The creditor is allowed to maintain an action upon any unpaid subscriptions and thereby steps into the

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shoes of the corporation for the satisfaction of its debt. To make out a prima facie case in a suit against stockholders of an insolvent corporation to compel them to contribute to the payment of its debts by making good unpaid balances upon their subscriptions, it is only necessary to establish that the stockholders have not in good faith paid the par value of the stocks of the corporation. [Donnina Halley v. Printwell, Inc. (2011)]

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VII. Board Of Directors And Trustees A. DOCTRINE OF CENTRALIZED MANAGEMENT A.1. BOARD IS SEAT OF CORPORATE POWERS General Rule: Unless otherwise provided in this Code, the corporate powers of all corporations form ed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the BOD or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for 1 year until their successors are elected and qualified. [Sec. 23] Exceptions: (1) In case of an Executive Committee duly authorized in the by-laws; [Sec. 35] (2) In case of a contracted manager which may be an individual, a partnership, or another corporation Note: In case the contracted manager is another corporation, the special rule in Sec. 44 applies. (3) In case of close corporations, the stockholders may manage the business of the corporation rather than by a BOD, if the Articles of Incorporation so provide [Sec. 97] The Corporation Code of the Philippines vests in the BOD the exercise of the corporate powers of the corporation, save in those instances where the Code requires stockholders’ approval for certain specific acts. [Great Asian Sales Center Corp v. CA, (2002)] The power to purchase real property is vested in the BOD or trustees. While a corporation may appoint agents to negotiate for the purchase of real property needed by the corporation, the final say will have to be with

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the board, whose approval will finalize the transaction. [Spouses Constantine Firme v. Bukal Enterprises and Development Corporation (2003)] Indisputably, one of the rights of a stockholder is the right to participate in the control or management of the corporation. This is exercised through his vote in the election of directors because it is the BOD that controls or manages the corporation. [Gamboa v. Teves, (2011)] i. REQUISITES OF A CORPORATE ACT BY THE BOD

VALID

(a) The Board must act as a BODY in a meeting. (b) There must be a VALIDLY constituted meeting. (c) There act must be supported by a MAJORITY OF THE QUORUM duly assembled (Exception: Election of officers requires a vote of majority of ALL the members of the board) (d) The act must be within the powers conferred to the Board. ii. LIMITATIONS BOD/TRUSTEES

ON

POW ERS

OF

(1) Limitations imposed by the Constitution, statutes, articles of incorporation or bylaws; (2) Certain acts of the corporation that require joint action of the stockholders and BOD:

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(g) Fixing of compensation of directors [Sec. 30] (3) Cannot exercise powers not possessed by the corporation. A.2. PRINCIPLE BOARD POWER

ON

DELEGATION

OF

Under Sec 23, the power and the responsibility to decide whether the corporation should enter into a contract that will bind the corporation is lodged in the board, subject to the articles of incorporation, by-laws, or relevant provisions of law. However, just as a natural person may authorize another to do certain acts for and on his behalf, the BOD may validly delegate some of its functions and powers to officers, committees or agents. The authority of such individuals to bind the corporation is generally derived from law, corporate by-laws or authorization from the board, either expressly or impliedly by habit, custom or acquiescence in the general course of business. [People’s Aircargo v. CA, (1998)]

B. BUSINESS JUDGMENT RULE General Rule: Directors cannot be held liable for mistakes or errors in the exercise of their business judgment as long as they acted in good faith, with due care and prudence. Contracts entered into by the BOD are binding upon the corporation and courts will not interfere. Exceptions:

of

(1) If the contracts are so unconscionable and oppressive as to amount to a wanton destruction of the rights of the minority [Ingersoll v. Malabon Sugar (1927)];

(d) Declaration of stock dividends [Sec. 43]

(2) if they violate their duties under Sec. 31 (director willfully and knowingly assents to patently unlawful acts of the corporation, or are guilty of gross negligence or bad faith); and

(a) Removal of director [Sec. 28] (b) Amendments of Articles Incorporation [Sec. 16] (c) Fundamental changes [Sec. 6]

(e) Entering into management contracts [Sec. 44] (f) Fixing of consideration of non-par shares [Sec. 62]

(3) if they violate Sec. 34 (disloyalty of a director who acquires for himself a business opportunity that should have belonged to the corporation, unless his

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act is ratified stockholders). Consequences Judgment Rule:

CORPORATION CODE

by

of

a

the

2/3

vote

of

Business

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committed an act causing damage to the corporation or when the Board is placed in a conflict of interests scenario whereby it is unlikely that it would use such business discretion to file such suit for the best interest of the corporation.

(1) The resolution, contracts and transactions of the board cannot be overturned or set aside by the stockholders or members and not even by the courts under the principle that the business of the corporation has been left to the hands of the board

C. TENURE, QUALIFICATIONS AND DISQUALIFICATIONS OF DIRECTORS OR TRUSTEES

(2) Directors and duly authorized officers cannot be held personally liable for acts or contracts done with the exercise of their business judgment.

Directors shall hold office for 1 year until their successors are elected and qualified [Sec. 23]

C.1. TENURE

Exceptions: (1) When the Corporation Code expressly provides otherwise

Term v. Tenure [Valle Verde Country Club v. Africa, 2009] Term

Tenure

Time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another.

The period within which the director actually holds office, including the holdover period after the end of his term

Not affected by holdover.

Includes holdover May be shorter or longer (in case of a holdover) than the term for reasons within or beyond the power of the incumbent

(5) Dissolution if abuse amounts to a ground for quo warranto but Solicitor General Refuses to act

Fixed by statute and it does not change simply because the office may have become vacant, nor because the incumbent holds over in office beyond the end of the term due to the fact that a successor has not been elected and has failed to qualify.

NOTE:

1 Year

(2) When the Directors or officers acted with fraud, gross negligence or in bad faith (Sec. 31). (3) When Directors or officers act against the corporation in conflict of interest situation (Villanueva). Rem edies in case of Mism anagement (1) Removal of directors pursuant to Sec. 28 (2) Derivative suit or complaint filed with the RTC) (Sec. 5.2, R.A. 8799, Securities Regulation Code; A.M. No. 01-2-04 SC, Interim Rules of Procedure Governing Intra-corporate Controversies) (3) Receivership (4) Injunction if the act has not yet been done

Dean Villanueva opined that a derivative suit may be an exception to such Rule: this occurs when it is apparent that the Board is not in a position to validly exercise its business judgment for the protection of the corporation, e.g., when the Board itself has

C.2. QUALIFICATIONS (1) If STOCK, director must own at least 1 share of the capital stock, which stock shall stand in his own name [Sec. 23]

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Exception: Trustee in a voting trust may be elected director/trustee.

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D. ELECTIONS

(2) If NON-STOCK, trustee must be a member.

D.1. CUMULATIVE VOTING

Qualifications:

(2) Natural person

A stockholder is allowed to concentrate his votes and give one candidate as many votes as the number of directors to be elected multiplied by the number of his shares shall equal.

(3) Of Legal Age

ILLUSTRATION

(4) Other qualifications as may be prescribed in the by-laws of the corporation.

If there are 5 directors to be elected and Pedro, as shareholder, has 100 shares, Pedro can give 500 (5 x 100 shares) votes to just one candidate.

(1) Majority of the directors/trustees must be residents of the Philippines.

With the omission of the phrase "in his own right" the election of trustees and other persons who in fact are not beneficial owners of the shares registered in their names on the books of the corporation becomes formally legalized. Hence, this is a clear indication that in order to be eligible as a director, what is material is the legal title to, not beneficial ownership of, the stock as appearing on the books of the corporation. [Lee v. CA (1992)]

i. CUMULATIVE CANDIDATE

VOTING

ii. CUMULATIVE DISTRIBUTION

FOR

VOTING

ONE

BY

A stockholder may cumulate his shares by multiplying the number of his shares by the number of directors to be elected and distribute the same among as many candidates as he shall see fit.

C.3. DISQUALIFICATIONS [SEC. 27]

ILLUSTRATION

(1) Convicted by final judgment of an offense punishable by imprisonment for a period exceeding 6 years; or

In the illustration above, Pedro instead may choose to give 100 votes to candidate 1, 100 votes to candidate 2, 100 votes to candidate 3, 150 votes to candidate 4, and 50 votes to candidate 5.

(2) A violation of the Corporation Code, committed within 5 years prior to the date of his election. This includes violations of rules and regulations issued by the SEC to implement the provisions of the Corporation Code. An amendment to the corporation’s by-laws which renders a stockholder ineligible to be a director, if he be also a director in a corporation whose business is in competition with that of the other corporation, has been sustained as valid. This is based upon the principle that where the director is so employed in the service of a rival company, he cannot serve both, but must betray one or the other. Such an amendment "advances the benefit of the corporation and is good." [Gokongwei, Jr. v. SEC (1979)]

iii. STRAIGHT VOTING Every stockholder may vote such number of shares for as many persons as there are directors to be elected. D.2. QUORUM There must be present, in person or by representative authorized to act by written proxy, the owners of majority of the Outstanding Capital Stock or majority of the members entitled to vote in the meeting. Election must be by ballot if requested.

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A stockholder cannot be deprived in the articles of incorporation or in the by-laws of his statutory right to use any of the methods of voting in the election of directors.

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F.2. VACANCY BY REASON OF INCREASE IN THE NUMBER OF THE DIRECTORS/TRUSTEES

No delinquent stock shall be voted.

Vacancy/ies must stockholders:

The candidates receiving the highest number of votes shall be declared elected.

(1) in a regular or special meeting called for that purpose; or

E. REMOVAL

(2) in the same meeting authorizing the increase of directors or trustees if so stated in the notice of the m eeting.

General Rule: Any Director or Trustee of a corporation may be removed from office, with or without cause. [Sec. 28] Exception: Directors who have been elected by minority stockholders exercising cumulative voting can only be removed for cause. Removal without cause may not be used to deprive minority stockholders or members of the right of representation to which they may be entitled under Sec. 24. Other requisites: (1) by a vote of the stockholders holding or representing 2/3 of the outstanding capital stock, or if the corporation be a non-stock corporation, by a vote of 2/3 of the members entitled to vote (2) At a regular or special meeting after proper notice is given

F. FILLING OF VACANCIES F.1. VACANCY (1) BY REMOVAL; OR (2) BY EXPIRATION OF TERM; OR (3) WHEN THE REMAINING DIRECTORS DO NOT CONSTITUTE A QUORUM Vacancy/ies must be filled by the stockholders in a regular or special meeting called for that purpose. A director or trustee elected to fill a vacancy shall be elected only for the unexpired term of his predecessor in office.

be

filled

by

the

F.3. VACANCY BY OTHER CAUSES Vacancy/ies may be filled by the vote of at least a majority of the remaining directors or trustees, if still constituting a quorum .

G. COMPENSATION [SEC. 30] General Rule: Directors are only entitled to reasonable per diems. They are not entitled to compensation as directors. Exceptions: (1) When Articles of Incorporation, by-laws, or an advance contract provides for compensation. (2) Compensation other than per diems may also be granted to directors by the vote of the stockholders representing at least a majority of the Outstanding Capital Stock at a regular or special stockholders’ meeting. The total yearly compensation of directors shall not exceed 10% of the net income before income tax of the corporation during the preceding year. COMPENSATION OF DIRECTORS AS CORPORATE OFFICERS The position of being chairman and ViceChairman, like that of treasurer and secretary, are not considered directorship positions but officership positions that would entitle the occupants to compensation. Likewise, the limitation placed under Sec. 30 of the Corporation Code that directors cannot receive compensation exceeding 10% of the

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net income of the corporation would not apply to the compensation given to such positions since it is being given in their capacity as officers of the corporation and not as board members. [Western Institute of Technology v. Salas (1997)]

H. FIDUCIARY DUTIES AND LIABILITY RULES H.1. DUTIES In this jurisdiction, the members of the BOD have a three-fold duty: duty of obedience, duty of diligence, and duty of loyalty. (1) Duty of Obedience - shall direct the affairs of the corporation only in accordance with the purposes for which it was organized; (2) Duty of Diligence - shall not willfully and knowingly vote for or assent to patently unlawful acts of the corporation or act in bad faith or with gross negligence in directing the affairs of the corporation; and (3) Duty of Loyalty - shall not acquire any personal or pecuniary interest in conflict with their duty as such directors or trustees. [Strategic Alliance Development Corp v. Radstock Securities Ltd. (2009)] Duty of Obedience The Directors or Trustees and Officers to be elected shall perform the duties enjoined on them by law and by the by-laws of the corporation [Sec. 25]

by the corporation, its stockholders or members and other persons. [Sec 31] The conditions for the application of Sec. 31 of the Corporation Code require factual foundations to be first laid out in appropriate judicial proceedings. Hence, concluding that a person breached fiduciary duties as an officer and member of the BOD of a corporation without com petent evidence thereon would be unwarranted and unreasonable. [Republic of the Philippines v. Sandiganbayan (First Division) et al. (2011)] Duty of Loyalty Directors and trustees should not acquire any personal or pecuniary interest in conflict with their duty as such directors or trustees, otherwise they shall be held liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members and other persons. [Sec. 31] Where a director, by virtue of his office, acquires for himself a business opportunity which should belong to the corporation, thereby obtaining profits to the prejudice of such corporation, he must account to the latter for all such profits by refunding the same, unless his act has been ratified by a vote of the stockholders owning or representing at least 2/3 of the outstanding capital stock [Sec. 34] Doctrine of Corporate Opportunity Unless his act is ratified, a director shall refund to the corporation all the profits he realizes on a business opportunity which: (1) corporation undertake

Duty of Diligence Directors or trustees who (i) willfully and knowingly vote for or assent to patently unlawful acts of the corporation or (ii) who are guilty of gross negligence or bad faith in directing the affairs of the corporation or (iii) acquire any personal or pecuniary interest in conflict with their duty as such directors or trustees shall be liable jointly and severally for all damages resulting therefrom suffered

MERCANTILE LAW

is

financially

able

to

(2) from its nature, is in line with corporation’s business and is of practical advantage to it; and (3) one in which the corporation has an interest or a reasonable expectancy. The rule shall be applied notwithstanding the fact that the director risked his own funds in the venture. [Sec. 34]

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By embracing the opportunity, the selfinterest of the officer or director will be brought into conflict with that of his corporation. Hence, the law does not permit him to seize the opportunity even if he will use his own funds in the venture. [Sundiang and Aquino] NOTE: Differences between Sec. 31 and Sec. 34: (1) First, while both involve the same subject matter (business opportunity) they concern different personalities; Sec. 34 is applicable only to directors and not to officers, whereas Sec. 31 applies to directors, trustees and officers. (2) Second, Sec. 34 allows a ratification of a transaction by a self-dealing director by vote of stockholders representing at least 2/3 of the outstanding capital stock. [Villanueva] H.2. LIABILITIES i. SOLIDARY DAMAGES

LIABILITY

FOR

(1) Willfully and knowingly voting for and assenting to patently unlawful acts of the corporation; [Sec. 31] (2) Gross negligence or bad faith in directing the affairs of the corporation; [Sec. 31]

Any director or officer of a corporation consenting to the issuance of watered stocks or who, having knowledge thereof, does not forthwith express his objection in writing and file the same with the corporate secretary shall be solidarily liable with the stockholder concerned to the corporation and its creditors for the difference in value [Sec. 65] iii. PERSONAL LIABILITIES GENERAL RULE Members of the Board, who purport to act in good faith for and in behalf of the corporation within the lawful scope of their authority, are not liable for the consequences of their acts. When the acts are of such nature and done under those circumstances, they are attributed to the corporation alone and no personal liability is incurred. The provisions on seizing corporate opportunity and disloyalty [Secs. 31 and 34] shall also apply to corporate officers. [Price v. Innodata Phils., Inc. (2008)] NOTE: Members of the BOD who are also officers are held to a more stringent liability because they are in-charge of day-to-day activities [Campos] Doctrine of Limited Liability

(3) Acquiring any personal or pecuniary interest in conflict of duty; [Sec. 31] (4) Consenting to the issuance of watered stocks, or, having knowledge thereof, failing to file objections with secretary; [Sec. 65] (5) Agreeing or stipulating in a contract to hold himself liable with the corporation; or

MERCANTILE LAW

Shields the incorporators from corporate liability beyond their agreed contribution to the capital or shareholding in the corporation.

Doctrine of Immunity Protects a person acting for and in behalf of the corporation from being himself personally liable for his authorized actions

(6) By virtue of a specific provision of law ii. LIABILITY FOR W ATERED STOCKS

Liability of Director, Trustee or Officer (Asked in ‘96 and ‘97)

W atered Stocks – stocks issued for a consideration less than its par or issued value or for a consideration in any form other than cash, valued in excess of its fair value.

Personal liability of a corporate director, trustee or officer along (although not necessarily) with the corporation may so validly attach, as a rule, only when:

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(1) He assents (a) to a patently unlawful act of the corporation, or (b) for bad faith or gross negligence in directing its affairs, or (c) for conflict of interest, resulting in damages to the corporation, its stockholders or other persons; (2) He consents to the issuance of watered stocks or who, having knowledge thereof, does not forthwith file with the corporate secretary his written objection thereto; (3) He agrees to hold himself personally and solidarily liable with the corporation; or (4) He is made, by a specific provision of law, to personally answer for his corporate action [Tramat Mercantile, Inc. vs. CA, (1994), reiterated in Atrium Management Corp. v. CA, (2001)] IV. SPECIAL FACTS DOCTRINE Even though a director may not be under the obligation of a fiduciary nature to disclose to a shareholder his knowledge affecting the value of the shares, that duty may exist in special cases. [Strong v. Repide (1909)] General Rule: Majority view: Directors only owe its duty to the corporation. They owe no fiduciary duty to stockholders but they may deal with each other at fair and reasonable terms, as if they were unrelated. No duty to disclose facts known to the director or officer. [Taylor v. Wright, 1945] NOTE: Minority View (Realistic View) recognizes the directors’ obligation to the stockholders individually as well as collectively, and refuses to permit him to profit at the latter’s expense by the use of information obtained as a result of official position and duties. Exception: Special Facts Doctrine: Conceding the absence of a fiduciary relationship in the ordinary case, courts nevertheless hold that where special circumstances or facts are present which make it inequitable for the director to withhold information from the stockholder, the duty to disclose arises and concealment is fraud. [Strong v. Repide, 1909]

MERCANTILE LAW

I. RESPONSIBILITY FOR CRIMES Since a corporation as a person is a mere legal fiction, it cannot be proceeded against criminally because it cannot commit a crime in which personal violence or malicious intent is required. Criminal action is limited to the corporate agents guilty of an act amounting to a crime and never against the corporation itself. Since the BOD is the repository of corporate powers and acts as the agent of the corporation, the directors may be held criminally liable. [West Coast Life Ins. Co. v. Hurd (1914); Time Inc. v. Reyes (1971)] The Trust Receipts Law recognizes the impossibility of imposing the penalty of imprisonment on a corporation. Hence, if the entrustee is a corporation, the law makes the officers or employees or other persons responsible for the offense liable to suffer the penalty of imprisonment. The reason is obvious: corporations, partnerships, associations and other juridical entities cannot be put to jail. Hence, the criminal liability falls on the human agent responsible for the violation of the Trust Receipts Law. [Ong v. CA (2003)] (see also Sec. 13, P.D. 115)

J. INSIDE INFORMATION The fiduciary position of insiders, directors, and officers prohibits them from using confidential information relating to the business of the corporation to benefit themselves or any competitor corporation in which they may have a mere substantial interest. Since loss and prejudice to the corporation is not a requirement for liability, the corporation has a cause of action as long as there is unfair use of inside information It is inside information if it is not generally available to others and is acquired because of the close relationship of the director or officer to the corporation

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INSIDER, DEFINED

Ratification

“Insider” means:

In case of absence of the first two conditions above, contract may be ratified if:

(a)

the issuer;

(b)

a director or officer (or person performing similar functions) of, or a person controlling the issuer;

(c)

a person whose relationship or former relationship to the issuer gives or gave him access to material information about the issuer or the security that is not generally available to the public;

(d)

(e)

a government employee, or director, or officer of an exchange, clearing agency and/or self-regulatory organization who has access to material information about an issuer or a security that is not generally available to the public; or a person who learns such information by a communication from any of the foregoing insiders [Sec. 3.8, Securities Regulations Code]

K. CONTRACTS K.1. BY SELF-DEALING DIRECTORS WITH THE CORPORATION General Rule: A contract of the corporation with one or more of its directors or trustees is VOIDABLE, at the option of such corporation. [Sec. 32] Exceptions: Such contract is VALID if all of the following conditions are present: (a) That the presence of such director or trustee in the board meeting in which the contract was approved was not necessary to constitute a quorum for such meeting; (b) That the vote of such director or trustee was not necessary for the approval of the contract; (c) That the contract is fair and reasonable under the circumstances; and (d) That in case of an officer, the contract has been previously authorized by the BOD.

(a) Stockholders representing at least 2/3 of the outstanding capital stock or at least 2/3 of the members in a meeting called for the purpose voted to ratify the contract. (b) Full disclosure of the adverse interest of the directors or trustees involved is made at such meeting. (c) Contract is fair and reasonable under the circumstances K.2. BETWEEN CORPORATIONS INTERLOCKING DIRECTORS

WITH

Interlocking, characterized If the interests of the interlocking director in the corporations are both substantial (i.e., stockholdings exceed 20% of outstanding capital stock). [Sec. 33] General Rule: A contract between two or more corporations having interlocking directors shall not be invalidated on that ground alone. [Sec. 33] Exception: If contract is fraudulent or not fair and reasonable under the circumstances If the interest of the interlocking director in one of the corporations is nom inal (stockholdings 20% or less) while substantial in the other, the contract shall be VALID, if the following conditions are met: (a) The presence of such director or trustee in the board meeting in which the contract was approved was NOT necessary to constitute a quorum for such meeting (b) That the vote of such director or trustee was not necessary for the approval of the contract (c) That the contract is fair and reasonable under the circumstances. Where (a) and (b) are absent, the contract can be ratified by the vote of the stockholders representing at least 2/3 of the outstanding capital stock or at least 2/3 of the members

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in a meeting called for the purpose voted to ratify the contract, provided that:

in this case are silent as to the creation by its BOD of an executive committee.

(a) Full disclosure of the adverse interest of the directors/trustees involved is made on such meeting;

(1) Notwithstanding the silence of the bylaws on the matter, the SC did not rule that the BOD’s creation of the executive committee is illegal or unlawful.

(b) The contract is fair and reasonable under the circumstances. K.3. MANAGEMENT CONTRACTS [SEC 44] See: Corporate Powers (2)(h) above

L. EXECUTIVE COMMITTEE L.1. CREATION The by-laws of a corporation may create an executive committee, composed of not less than three members of the board, to be appointed by the board. Said committee may act, by majority vote of all its members, on such specific matters within the competence of the board, as may be delegated to it in the by-laws or on a majority vote of the board [Sec. 35]

CANNOT

(3) Another reason is that the BOD has the power to create positions not provided for in the by-laws since the board is the corporation’s governing body. [Filipinas Port Services Inc. v. Go (2007)]

M. MEETINGS OF BOD M.1. REGULAR OR SPECIAL

L.2. LIMITATION ON ITS POWERS Executive Committees delegated the following:

(2) One reason is the absence of a showing as to the true nature and functions of said executive committee considering that the "executive committee," referred to in Sec. 35 of the Corporation Code which is as powerful as the BOD and in effect acting for the board itself, should be distinguished from other committees which are within the competency of the board to create at anytime and whose actions require ratification and confirmation by the board.

be

(1) Matters needing stockholder approval [Sec. 35]; (2) Filling up of board vacancies; (3) Amendment, repeal or adoption of bylaws [Sec. 35]; (4) Amendment or repeal of any resolution of the Board which by its express terms is not amendable or repealable [Sec. 35]; (5) Cash dividend distribution [Sec. 35]; and (6) Acts which would render the BOD powerless and free from all responsibilities imposed on it by law [Campos] Under Sec. 35 of the Corporation Code, the creation of an executive committee must be provided for in the by-laws of the corporation. Unfortunately, the by-laws of the corporation

W ho May Attend? The members of the Board themselves; directors or trustees cannot be represented or voted by proxies at board meetings. [Sec. 25] In the Philippines, teleconferencing and videoconferencing of members of BOD of private corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange Commission issued SEC Memorandum Circular No. 15, series of 2001, on November 30, 2001, providing the guidelines to be complied with in relation to such conferences. [Expertravel and Tours, Inc. v. CA, (May 26, 2005)] i. W HEN AND W HERE W hen? [Sec.53] (1) Regular meetings of directors or trustees shall be held monthly, unless the by-laws provide otherwise.

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(2) Special m eetings of the BOD or trustees may be held at any time upon the call of the president or as provided in the by-laws. W here? [Sec. 53] Meetings of directors or trustees of corporations may be held anywhere in or outside of the Philippines, unless the by-laws provide otherwise. ii. NOTICE Notice of regular or special meetings stating the date, time and place of the meeting must be sent to every director or trustee at least 1 day prior to the scheduled m eeting, unless otherwise provided by the bylaws. A director or trustee may waive this requirement, either expressly or impliedly. [Sec. 50] M.2. WHO PRESIDES The president presides, unless the by-laws provide otherwise. [Sec. 54]

MERCANTILE LAW

(1) In stock corporations, shareholders may generally transfer their shares. Thus, on the death of a shareholder, the executor or administrator duly appointed by the Court is vested with the legal title to the stock and entitled to vote it. Until a settlement and division of the estate is effected, the stocks of the decedent are held by the administrator or executor. (2) On the other hand, membership in and all rights arising from a non-stock corporation are personal and nontransferable, unless the articles of incorporation or the bylaws of the corporation provide otherwise. In other words, the determination of whether or not “dead members” are entitled to exercise their voting rights (through their executor or administrator), depends on the Articles of Incorporation or by-laws. M.4. RULE ON ABSTENTION A vote of abstention is considered to be a vote in itself. Abstentions will not be counted towards the affirmative and such refusal to vote does not indicate acquiescence in the action of those who vote. Regular BOD Meetings

M.3. QUORUM General Rule: Majority of the number of directors or trustees as fixed in the articles of incorporation. [Sec. 25] Exceptions: (1) Unless the articles of incorporation or the by-laws provide for a GREATER majority, or (2) In case of election of officers where a vote of a majority of all the members of the board is needed. Whether or not "dead members" are entitled to exercise their voting rights (through their executor or administrator), depends on the articles of incorporation or by-laws. [Tan v. Sycip (2006)] The quorum in a members’ meeting is to be reckoned as the actual number of members of the corporation. W hat happens in the event of the death of one of them?

Special BOD Meetings W HEN

Held monthly, unless the by-laws provide otherwise

at any time upon the call of the president or as provided in the by-laws

W HERE anywhere in or outside of the Philippines, unless the by-laws provide otherwise NOTICE Notice of regular or special meetings stating the date, time and place of the meeting must be sent to every director or trustee at least 1 day prior to the scheduled meeting, unless otherwise provided by the by-laws.

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•

A director or trustee may waive this requirement, either expressly or impliedly

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QUORUM

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VIII. Stockholders and Members

General Rule: Majority of the number of directors or trustees as fixed in the articles of incorporation. [Sec. 25] Exceptions: (3) Unless the articles of incorporation or the by-laws provide for a GREATER majority, or (4) In case of election of officers where a vote of a majority of all the members of the board is needed.

A. RIGHTS OF A STOCKHOLDER AND MEMBERS (1) Direct or indirect management (Sec. 6)

participation

in

(2) Voting rights (Sec. 6) (3) Right to remove directors (Sec. 28) (4) Proprietary rights (a) Right to dividends (Secs. 43 and 71) (b) Appraisal right (Sec. 81) (c) Right to issuance of stock certificate for fully paid shares (Sec. 64) (d) Proportionate participation in the distribution of assets in liquidation (Sec. 122) (e) Right to transfer of stocks corporate books (Sec. 63)

in

(f) Pre-emptive right (Sec. 39) (5) Right to inspect books and records (Sec 74) (6) Right to be furnished with the most recent financial statements/reports (Sec. 75) (7) Right to recover stocks unlawfully sold for delinquent payment of subscription (Sec. 69) (8) Right to file individual suit, representative suit and derivative suits A.1. DOCTRINE OF EQUALITY OF SHARES All stocks issued by the corporation are presumed equal with the same privileges and liabilities, provided that the Articles of Incorporation is silent on such differences. [CIR v. CA, CTA, and A. Soriano Corporation (1999)] Doctrine of Equality of Shares provides that where the Articles of Incorporation do not PAGE 176 OF 320

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provide for any distinction of the shares of stock, all shares issued by the corporation are presumed to be equal and enjoy the same rights and privileges and are also subject to the same liabilities. [Sundiang and Aquino] The default rule is that all stockholders have equal right and obligations, expressed in the last paragraph of Sec. 6 of the Corporation Code which provides, “each share shall be equal in all respects to every other share.” [Villanueva] Note: However, when preferences or restrictions are made to apply to a class of shares, then such preferences on restrictions shall exist and be valid only when “provided in the articles of incorporation and stated in the certificate of stock.” [Villanueva] Sec. 6 of the Corporation Code also contains a “Board-enabling” clause that although the default rule is that all shareholders have equal rights and obligations, nevertheless, when authorized by the articles of incorporation, the BOD, may fix the terms and conditions of preferred shares of stock or any series thereof, or to classify its shares for the purpose of insuring compliance with constitutional or legal requirements; but such terms and conditions shall be effective upon filing of a certificate thereof with the SEC. Thus, a preference or restriction on shares may be valid and effective only if the same has formally been registered with the SEC and thereby becomes public records binding on the public. [Villanueva]

MERCANTILE LAW

the extent specified in the articles of incorporation or the by-laws.” The SEC has opined that the rule in Sec. 6 allowing non-voting shares to vote on specified fundamental matters does not apply to non-voting members of a non-stock corporation; that insofar as members of a non-stock corporation, the applicable provision is Sec. 89, which specifically provides that members may be denied entirely their voting rights in the articles of incorporation or by-laws of the corporation. [SEC Opinion, 4 September 1995]

B. PARTICIPATION IN MANAGEMENT B.1. PROXY Stockholders and members may vote in person or by proxy in all meetings of stockholders or members (Sec. 58). The right to issue a proxy is vested with public interest when it comes to stock corporations; although it may be regulated under the bylaws, it cannot be denied, since it is an aspect of ownership interest of stockholders. However, the right of members to vote by proxy may be denied under the articles of incorporation or by-laws of a non-stock corporation (Sec. 89) Requisites for a Valid and Enforceable Proxy: (1) It must be in writing (2) Signed by the stockholder or member of record; and

Nature of the Rights of Members The eleemosynary nature (i.e. charitable) of every non-stock corporation defines the characteristic of membership therein as being essentially personal in character and therefore essentially non-transferable in nature. Sec. 89 of the Corporation Code specifically provides that in a non-stock corporation, the right of members of any class or classes to vote “may be limited, broadened or denied to

(3) Filed with the corporation before the scheduled meeting with the Corporate Secretary [Sec. 58] Note: Unless otherwise provided in the proxy, it shall be valid only for the meeting for which it is intended. No proxy shall be valid and effective for a period longer than five (5) years at any one time. [Sec. 58]

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Procedural Proxies:

CORPORATION CODE

Matters

Relating

to

(1) “Proxy solicitation” involves the securing and submission of proxies, while “proxy validation” concerns the validation of such secured and submitted proxies; (2) The SEC’s power to pass upon the validity of proxies in relation to election controversies has effectively been withdrawn, tied as it is to its abrogated quasi-judicial powers, and has been transferred to the RTC Special Commercial Courts pursuant to the terms of Sec. 5.2 of the Securities Regulation Code; (3) Nevertheless, although an intracorporate controversy may animate a disgruntled shareholder to complain to the SEC a corporation’s violations of SEC rules and regulations, that motive alone should not be sufficient to deprive the SEC of its investigatory and regulatory powers, especially so since such powers are exercisable on a motu proprio basis. The fact that the jurisdiction of the RTC Special Commercial Courts is confined to the voting on election of officers, and not all matter which may be voted upon by stockholders, elucidates that the power of the SEC to regulate proxies remains extant and could very well be exercised when stockholders vote on matters other than the election of directors. [GSIS v. CA (2009)] B.2. VOTING TRUST An arrangement created by one or more stockholders for the purpose of conferring upon a trustee or trustees the right to vote and other rights pertaining to the shares for a period not exceeding 5 years at any time [Sec. 59].

MERCANTILE LAW

A voting trust agreement shall be ineffective and unenforceable unless: (1) It is in writing and notarized; (2) Specify the terms and conditions thereof; and (3) A certified copy of such agreement shall be filed with the corporation and with the SEC. Proxy

Trustee

Principal–agent

Trustee-beneficiary

Proxy cannot exceed delegated authority.

The only limit to authority is that the act must be for the benefit of trustee. (fiduciary obligation)

Must be in writing

Must be in writing and notarized

Copy must be filed with the corporation.

Copy must be filed with SEC and the corporation.

No transfer.

Transfer of legal title to trustee.

Proxy exercises voting rights only for a specific meeting (unless otherwise provided)

Trustee exercises absolute voting rights continuously, subject only to fiduciary duty.

Proxy cannot be director

Trustee can be director because he holds legal title over the shares

Revocable at will in any manner, EXCEPT if coupled with an interest.

Irrevocable, as long as no misconduct or fraud.

Max of 5 yrs at a time

Max of 5 yrs at a time (unless the voting trust is specifically required as a condition in a loan agreement)

Under a voting trust arrangement, a stockholder of a stock corporation parts with the naked or legal title, including the power to vote, of the shares and only retains the beneficial ownership of the stock. A voting trustee is a share owner vested with colorable and naked title of the shares covered for the primary purpose of voting upon stocks that he does not own. PAGE 178 OF 320

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B.3. CASES WHEN ACTION IS REQUIRED

CORPORATION CODE

STOCKHOLDERS’

Under Sec. 6 of the Corporation Code, each share of stock is entitled to vote, unless otherwise provided in the articles of incorporation or declared delinquent under Sec. 67 of the Code. [Tan v. Sycip (2006)] In non-stock corporations, the voting rights attach to membership. Members vote as persons, in accordance with the law and the by-laws of the corporation. Each member shall be entitled to one vote unless so limited, broadened, or denied in the articles of incorporation or by-laws. When the principle for determining the quorum for stock corporations is applied by analogy to nonstock corporations, only those who are actual members with voting rights should be counted. I. BY A MAJORITY VOTE 1. Power to enter into m anagem ent contracts (Sec. 44) General Rule Requires approval by majority of the BOD/BOT and approval by stockholders owning at least the majority of the outstanding capital stock/majority of members of both the managing and the managed corporation Exceptions (1) Where a stockholder/s representing the same interest of both the managing and the managed corporations own or control more than one-third (1/3) of the total outstanding capital stock entitled to vote of the managing corporation; or (2) Where a majority of the members of the managing corporation’s BOD also constitute a majority of the managed corporation’s BOD Requires at least 2/3 votes of the outstanding capital stock/membership of the managed corporation.

MERCANTILE LAW

2. Amendments to by-laws (Sec. 48) Requires approval by majority of the BOD/BOT and approval by stockholders owning at least the majority of the outstanding capital stock/majority of members Includes all stockholders with or without voting rights 3. Revocation of delegation to the BOD of the power to am end or repeal or adopt by-laws (Sec. 48) Requires approval by stockholders owning at least the majority of the outstanding capital stock/majority of members 4. Calling a meeting directors (Sec. 28)

to

remove

Meeting for the removal of directors or trustees, or any of them, must be called by the secretary on order of the president or on the written demand of the stockholders representing or holding at least a majority of the outstanding capital stock/majority of members 5. Granting com pensation other than per diems to directors (Sec. 30) Compensation other than per diems may be granted to directors by the vote of the stockholders representing at least a majority of the outstanding capital stock 6. Consideration for no-par shares (Sec. 62) When the Articles of Incorporation or the BOD does not provide for the value of no-par shares, the value of such shares shall be determined by the stockholders representing at least a majority of the outstanding capital stock

BUT only majority vote is required for the managing corporation.

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II. BY A TW O-THIRDS VOTE 1. Am endm ent of Incorporation (Sec. 16)

Articles

of

4. Increasing/decreasing capital stock (Sec. 38)

Amendment of the Articles of Incorporation may be made by a majority vote of the BOD/BOT and the vote or written assent of the stockholders representing at least twothirds 2/3 of the outstanding capital stock, without prejudice to the appraisal right of dissenting stockholders.

Requires approval by a majority vote of the BOD and approval by at least 2/3 of the outstanding capital stock.

Includes all stockholders with or without voting rights

5. Incurring, creating, increasing bonded indebtedness (Sec. 38)

Amendment of Articles of Incorporation of close corporations (Sec 103) Amendment to the Articles of Incorporation which seeks to delete or remove any provision required to be contained in the Articles of Incorporation of Close Corporations or to reduce a quorum or voting requirement stated in said Articles of Incorporation requires the affirmative vote of at least 2/3 of the outstanding capital stock, whether with or without voting rights, or of such greater proportion of shares as may be specifically provided in the Articles of Incorporation at a meeting duly called. 2. Delegating the power to amend or repeal by-laws or adopt new by-laws (Sec. 48) Delegation to the BOD/BOT of the power to amend or repeal by-laws or adopt new bylaws requires approval by at least 2/3 of the outstanding capital stock/membership. Revocation of the delegation requires only majority vote of the outstanding capital stock/membership. 3. Extending/shortening term (Sec. 37)

corporate

Includes all stockholders with or without voting rights

Requires approval by a majority vote of the BOD and approval by at least 2/3 of the outstanding capital stock. Includes all stockholders with or without voting rights 6. Issuance of shares not subject to pre-emptive right (Sec. 39) Shares issued in good faith in exchange for property or previously incurred indebtedness with the approval of the stockholders representing 2/3 of the outstanding capital stock are not subject to pre-emptive rights. 7. Sale/disposition of substantially all of assets(Sec. 40)

all or corporate

Requires approval by a majority vote of the BOD/BOT and approval by at least 2/3 of the outstanding capital stock/membership. Includes all stockholders with or without voting rights Note: In non-stock corporations where there are NO members with voting rights, the vote of at least the majority of the BOT will be sufficient authorization for any sale or disposition of all or substantially all of corporate assets. (Sec. 40)

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8. Investm ent of funds in another business (Sec. 42) Requires approval by a majority vote of the BOD/BOT and approval by at least 2/3 of the outstanding capital stock/membership. Includes all stockholders with or without voting rights

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vote of the stockholders representing at least 2/3 of the outstanding capital stock provided that the contract is fair and reasonable under the circumstances. 13. Ratifying acts of disloyalty of a director (Sec. 34) General Rule

9. Dividend declaration (Sec. 43) No stock dividend shall be issued without the approval of stockholders representing not less than 2/3 of the outstanding capital stock. 10. Power to enter into m anagem ent contracts (Sec. 44) See discussion under “By a Majority Vote” 11. Rem oval of directors or trustees (Sec. 28) Any director or trustee may be removed from office by a vote of the stockholders holding or representing at least 2/3 of the outstanding capital stock/membership. 12. Ratifying contracts with respect to dealings with directors/trustees (Sec. 32) A contract of the corporation with one or more of its directors is voidable, at the option of such corporation, unless all the following conditions are present: (1) The director’s presence in the BOD meeting in which the contract was approved was not necessary to constitute a quorum (2) The vote of such director was not necessary for the approval of the contract (3) The contract is fair and reasonable under the circumstances (4) In case of an officer, the contract has been previously authorized by the BOD.

Where a director, by virtue of his office, acquires for himself a business opportunity which should belong to the corporation, thereby obtaining profits, he must account to the corporation for all such profits by refunding it. Exception His act may be ratified by a vote of the stockholders owning or representing at least 2/3 of the outstanding capital stock. 14. Stockholders’ approval of the plan of m erger or consolidation (Sec. 77) Requires approval by majority of each of the BOD/BOT of the constituent corporations of the plan of merger or consolidation and approval by at least 2/3 of the outstanding capital stock/membership of each corporation at separate corporate meetings duly called. Amendments to the plan of merger or consolidation also requires approval by majority vote of each of the BOD and 2/3 vote of the outstanding capital stock/membership of each corporation voting separately. Includes all stockholders with or without voting rights 15. Distribution of assets in non-stock corporations (Sec. 95) The BOT shall, by majority vote, adopt a resolution recommending a plan of distribution which shall be approved by at least 2/3 of the members with voting rights.

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16. Incorporation of a religious society (Sec. 116)

C. PROPRIETARY RIGHTS

Any religious society or religious order, or any diocese, synod, or district organization of any religious denomination, sect or church, unless forbidden by the constitution, rules, regulations, or discipline of the religious denomination, sect or church of which it is a part, or by competent authority, may, upon written consent and/or by an affirmative vote at a meeting called for the purpose of at least 2/3 of its membership, incorporate for the administration of its temporalities or for the management of its affairs, properties and estate.

C.1. RIGHT TO DIVIDENDS

17. Voluntary dissolution corporation (Sec. 118-119)

of

a

Requires a resolution adopted by a majority vote of the BOD/BOT, and by a resolution duly adopted by the affirmative vote of the stockholders owning at least 2/3 of the outstanding capital stock/membership at a meeting to be held upon call for such purpose.

General Rule The right to dividends vests upon lawful declaration by the BOD. From that time, dividends become a debt owing to the shareholders. No revocation can be made. Exceptions (1) Dividends are revocable if NOT yet announced or communicated to the stockholders. (2) Stock dividends, even if already declared, may be revoked prior to actual issuance since these are not distributions but merely representations of changes in the capital structure. Note: Right to dividends vests upon declaration so whoever owns the stock at such time also owns the dividends. Subsequent transfer of stock would not carry with it right to dividends UNLESS agreed upon by the parties.

III. BY CUMULATIVE VOTING

C.2. RIGHT OF APPRAISAL

Election of Directors or Trustees (Sec. 24) - A stockholder may vote such number of shares for as many persons as there are directors to be elected or he may cumulate said shares and give one candidate as many votes as the number of directors to be elected multiplied by the number of his shares shall equal, or he may distribute them on the same principle among as many candidates as he shall see fit:

Right to withdraw from the corporation and demand payment of the fair value of the shares after dissenting from certain corporate acts involving fundamental changes in corporate structure (Sec. 81). The amount paid to the stockholder is the fair value of his shares as of the day prior to the date on which the vote was taken, excluding any appreciation or depreciation in anticipation of the corporate action (Sec. 82).

Provided, That the total number of votes cast by him shall not exceed the number of shares owned by him as shown in the books of the corporation multiplied by the whole number of directors to be elected.

I. INSTANCES OF APPRAISAL RIGHT (1) Extension or reduction or corporate term (Sec. 81) (2) Amendment to Articles of Incorporation which involves change in the rights of stockholders, authorize preferences superior to those stockholders, or restrict the right of any stockholder (Sec. 81) (3) Investment of corporate funds in another business or purpose (Sec. 42)

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(4) Sale or disposal of all or substantially all assets of the corporation (Sec. 81) (5) Merger or consolidation (Sec. 81)

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10 days after demand for payment, at the option of the corporation [Sec. 86] Effect of Extinguishment

II. REQUIREMENTS FOR EXERCISE OF APPRAISAL RIGHT (SECS. 82, 86) (1) Stockholder must have voted against the corporate act. (2) Stockholder must make a written demand on the corporation within 30 days after the vote was taken for payment of the fair value of his shares (failure to make demand within such period shall be deemed waiver of the appraisal right). (3) Stockholder must submit his certificates of stock to the corporation for notation within 10 days after demand for payment. Otherwise, right to appraisal may be terminated at the option of corporation. III. EFFECT OF DEMAND (SEC. 83) ALL rights accruing to such shares, including voting and dividend rights, shall be suspended EXCEPT the right of such stockholder to receive payment of the fair value thereof Immediate RESTORATION of voting and dividend rights if the dissenting stockholder is not paid the value of his shares within 30 days after the award. IV. EXTINGUISHMENT OF APPRAISAL RIGHT (SEC. 84, GENERALLY) (1) Withdrawal of demand by the stockholder WITH CONSENT of the corporation (2) Abandonment of the proposed action (3) Disapproval by SEC of the proposed action where such approval is necessary (4) Where SEC (now RTC) determines that such stockholder is not entitled to appraisal right (5) Failure to submit the certificates of stock representing his shares to the corporation for notation as dissenting shares within

(1) Right of dissenting stockholder to be paid the fair value of his shares shall cease; (2) His status as a stockholder thereupon be restored; and

shall

(3) All dividend distributions which would have accrued on his shares shall be paid to him. [Sec. 84] Note: If shares represented by the certificates bearing such notation are transferred, and the certificates consequently cancelled, the rights of the transferor as a dissenting stockholder under this Title shall cease and the transferee shall have all the rights of a regular stockholder; and all dividend distributions which would have accrued on such shares shall be paid to the transferee. [Sec. 86] C.3. RIGHT TO INSPECT I. BASIS OF RIGHT As the beneficial owners of the business, the stockholders have the right to know the financial condition and management of corporate affairs. A stockholder’s right of inspection is based on his ownership of the assets and property of the corporation. Therefore, it is an incident of ownership of the corporate property, whether this ownership or interest is termed an equitable ownership, a beneficial ownership, or quasi-ownership. Such right is predicated upon the necessity of self-protection. [Gokongwei Jr. v. SEC (1979)] II. RECORDS/BOOKS (SEC. 74)

TO

BE

KEPT

(1) Books that record all business transactions of the corporation which shall include contract, memoranda, journals, ledgers, etc; (2) Minute book for meetings stockholders/members;

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(3) Minute book for board/trustees;

CORPORATION CODE

meetings

of

the

its officers contest such purpose or contend that there is evil motive behind the inspection, the burden of proof is with the corporation or such officer to show the same.

(4) Stock and transfer book Stock transfer agent - One engaged principally in the business of registering transfers of stocks in behalf of a stock corporation (licensed by the SEC). The corporate secretary is the one duly authorized to make entries in the stock and transfer book. It is the corporate secretary's duty and obligation to register valid transfers of stocks and if said corporate officer refuses to comply, the transferor-stockholder may rightfully bring suit to compel performance. [Torres et al v. CA (1997)]

TEST to determine whether the purpose is legitimate – A legitimate purpose is one which is germane to the interests of the stockholder as such and not contrary to the interests of the corporation. [Gokongwei v. SEC (1979)] Among the changes introduced in the new Code with respect to the right of inspection granted to a stockholder are the following: (1) The records must be kept at the principal office of the corporation; (2) The inspection must be made on business days;

III. FINANCIAL STATEMENTS (SEC. 75)

(3) The stockholder may demand a copy of the excerpts of the records or minutes;

Within 10 days from written request, the corporation shall furnish its most recent financial statement (balance sheet and profit or loss statement as of last taxable year) At a regular meeting, the Board shall present a financial report of the operations of the corporation for the preceding year, which shall include financial statements duly signed and certified by an independent CPA. Exception If the paid-up capital is less than P50,000 – the financial statements may be certified under oath by the treasurer or any responsible officer of the corporation (instead of an independent CPA). IV. REQUIREMENTS EXERCISE OF THE INSPECTION (SEC. 74)

FOR RIGHT

THE OF

(1) It must be exercised at reasonable hours on business days and in the place where the corporation keeps all its records (i.e., principal office). (2) The stockholder has not improperly used any information he secured through any previous examination. (3) Demand is made in good faith or for a legitimate purpose. If the corporation or

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(4) The refusal to allow such inspection shall subject the erring officer or agent of the corporation to civil and criminal liabilities. However, while seemingly enlarging the right of inspection, the new Code has prescribed limitations to the same. It is now expressly required as a condition for such examination that the one requesting it must not have been guilty of using improperly any information through a prior examination, and that the person asking for such examination must be "acting in good faith and for a legitimate purpose in making his demand." [Gonzales v. PNB (1983)] Directors of a corporation have the unqualified right to inspect the books and records of the corporation at all reasonable times. The right of inspection is not to be denied on the ground that the director or shareholder is on unfriendly terms with the officers of the corporation whose records are sought to be inspected. A director or stockholder can make copies, abstracts, and memoranda of documents, books, and papers as an incident to the right of inspection, but cannot, without an order of a court, be permitted to take books from the office of the corporation. However, a director

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or stockholder does not have any absolute right to secure certified copies of the minutes of the corporation until these minutes have been written up and approved by the directors. [Veraguth v. Isabela Sugar (1932)] A stockholder of a sequestered company has the right to inspect and/or examine the records of the corporation pursuant to Sec. 74 of the Corporation Code. [Africa v. PCGG (1992)] V. REMEDIES W HEN INSPECTION IS REFUSED (1) Mandamus (2) Injunction (3) Action for damages (4) File an action under Sec. 144 to impose a penal offense by fine and/or imprisonment Refusal to allow inspection is a criminal offense. Such refusal, when done in violation of Sec 74(4) of the Corporation Code, properly falls within the purview of Sec. 144 of the same code and thus may be penalized as an offense. [Yujuico and Sumbilla v Quiambao and Pilapil (2014)] Because the obligations provided for in Sec. 74 fall on the corporation, violation of the same is done by the corporation; thus criminal action based on such violation can only be maintained against corporate officers or other such persons acting on behalf of the corporations.

MERCANTILE LAW

contract stipulations, by which the right is strictly construed against the right of person to dispose or deal with their property. Stockholders of a corporation shall enjoy preemptive right to subscribe to ALL ISSUES OR DISPOSITIONS OF SHARES OF ANY CLASS, in proportion to their respective shareholdings. The purpose is to enable the shareholder to retain his proportionate control in the corporation and to retain his equity in the surplus. Note: The broad phrase “all issues or disposition of shares of any class” is construed to include not only new shares issued in pursuance of an increase in capital stock or from the unissued shares which form part of the ACS, but also covers “treasury shares.” Treasury shares would come under the term “disposition.” Likewise considering that it is not included among the exceptions enumerated therein, where pre-emptive right shall not extend, the intention is to include it in its application. (SEC Opinion, 14 January 1993). A pre-emptive right is a right claimed against the corporation on unissued shares of its capital stock, and likewise on treasury shares held by the corporation; while the right of first refusal is a right exercisable against another stockholder on his shares of stock. [Villanueva] Basis of Preemptive Right: to preserve the existing proportional rights of the stockholders [Campos] II. LIMITATIONS TO EXERCISE PRE-EMPTIVE RIGHT (SEC. 39)

C.4. PRE-EMPTIVE RIGHT I. DEFINITION AND DISTINGUISHED FROM RIGHT OF FIRST REFUSAL Pre-emptive right is an option privilege of an existing stockholder to subscribe to a proportionate part of shares subsequently issued by the corporation before the same can be disposed of in favor of others; this right includes all issues and disposition of shares of any class. It is a common law right and may be exercised by stockholders even without legal provision. On the other hand, a right of first refusal arises only by virtue of

OF

•

Such pre-emptive right shall NOT extend to shares to be issued in compliance with laws requiring stock offerings or minimum stock ownership by the public;

•

It shall also NOT extend to shares to be issued in good faith with the approval of the stockholders representing 2/3 of the outstanding capital stock, in exchange for property needed for corporate purposes or in payment of a previously contracted debt

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•

It shall not take effect if denied in the Articles of Incorporation or an amendment thereto.

•

If one shareholder does not want to exercise his pre-emptive right, the other shareholders are not entitled to purchase the corresponding shares of the shareholder who declined. But if nobody purchased the same and later on the board re-issued the shares, the preemptive right applies. [Sundiang and Aquino]

III. REMEDIES IN UNW ARRANTED DENIAL

CASE

OF

•

Injunction

•

Mandamus

•

The suit should be individual and not derivative because the wrong done is to the stockholders individually

•

SEC can cancel shares if the 3rd party is not innocent

IV. W AIVER/ DENIAL OF PREEMPTIVE RIGHT •

•

Allowed by the Code provided that it is made in the Articles of Incorporation o

Waiver made through Articles of Incorporation – would bind present and subsequent shareholders

o

2/3 vote of the outstanding capital stock is necessary before waiver is binding

o

Result of Non-placement of waiver clause in Articles of Incorporation: waiver shall not bind future stockholders but only those who agreed to it

The shareholders must be given reasonable time within which to exercise their pre-emptive rights. Upon expiration of such period, any shareholders who did not exercise such will be deemed to have waived it. This is necessary so as to not hinder future financing plans of the

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corporation. Some new investors may be willing to invest only if all the new shares will be issued to them [Campos]. C.5. RIGHT TO VOTE •

Non-voting shares are not entitled to vote except as provided for in the last paragraph of Sec. 6.

•

Preferred or redeemable shares may be deprived of the right to vote

•

Fractional shares of stock cannot be voted

•

Treasury shares have no voting rights as long as they remain in the treasury.

•

No delinquent stock shall be voted (Sec. 71)

•

A transferee of stock cannot vote if his transfer is not registered in the stock and transfer book of the corporation.

C.6. RIGHT OF FIRST REFUSAL The right of first refusal provides that a stockholder who may wish to sell or assign his shares must first offer the shares to the corporation or to the other existing stockholders under terms and conditions which are reasonable; and that only when the corporation or the other stockholders do not or fail to exercise their option, is the offering stockholder at liberty to dispose of his shares to third parties. An agreement entered into between the two majority stockholders of a corporation whereby they mutually agreed not to sell, transfer, or otherwise dispose of any part of their shareholdings till after one year from the date of the agreement. [Lambert v. Fox (1914)] The right of first refusal is primarily an attribute of ownership, and consequently can be effected only through a contractual commitment by the owner of the shares; consequently, the waiver of a right of first refusal when duly constituted can be effected only by the registered owner. [PCGG v. SEC, unreported (1988)]

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D. REMEDIAL RIGHTS D.1. INDIVIDUAL SUIT A suit brought by the shareholder in his own name against the corporation when a wrong is directly inflicted against him.

A suit brought by the stockholder in behalf of himself and all other stockholders similarly situated when a wrong is committed against a group of stockholders. D.3. DERIVATIVE SUIT A suit is brought by a stockholder for wrongful acts committed by directors/trustees of the corporation, when the stockholder finds that he has no redress because the directors/trustees are the ones vested by law to decide whether or not to sue. as

(2) That the stockholder or member exerted all reasonable efforts, and alleges the same with particularity in the complaint, to exhaust all remedies available under the Articles of Incorporation, by-laws, laws or rules governing the corporation or partnership to obtain the relief he desires. (3) That there is no appraisal right available for the act(s) complained of;

D.2. REPRESENTATIVE SUIT

Derivative Suit jurisprudence

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defined

in

It is a suit by a shareholder to enforce a corporate cause of action. The corporation is a necessary party to the suit, and the relief which is granted is a judgment against a third person in favor of the corporation. [Chua v. CA (2004)] It is a suit brought by one or more stockholders/members in the name and on behalf of the corporation to redress wrongs committed against it, or protect/vindicate corporate rights whenever the officials of the corporation refuse to sue, or the ones to be sued, or has control of the corporation. [Sundiang and Aquino] Suits of stockholders based on wrongful or fraudulent acts of directors or other persons. Requisites of Derivative Actions (1) That the person instituting the action be a stockholder or member at the time the acts or transactions subject of the action occurred and the time the action was filed;

(4) That the suit is not a nuisance or harassment suit. (Rule 8, Interim Rules of Procedure for Intra-Corporate Controversies) Note: Fifth requisite: (implied from first paragraph of Rule 8, Section 1): The action brought by the shareholder or member must be in the name of the corporation or association [Villamor v. Umale (2014)] How this works in terms of procedure? Corporation as an unwilling co-plaintiff (Rule 3, Sec. 10, ROC); suing stockholder mere nominal party/plaintiff. Requisites of a Derivative Suit according to Jurisprudence [SMC v. Kahn, 1989] (1) the party bringing the suit should be a shareholder as of the time of the act or transaction complained of, the number of his shares not being material; (2) he has tried to exhaust intra-corporate remedies, i.e., has made a demand on the BOD for the appropriate relief but the latter has failed or refused to heed his plea; and (3) the cause of action actually devolves on the corporation, the wrongdoing or harm having been, or being caused to the corporation and not to the particular stockholder bringing the suit. [Lisam Enterprises, Inc., represented by Lolita A. Soriano and Lolita A. Soriano v. Banco de Oro Unibank, Inc., et al., (2012)] NOTE: The “wrong” contemplated in a derivative suit is one in which the injury alleged be indirect as far as the stockholders are concerned and direct only insofar as the corporation is concerned. [De Leon]

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Corporation should be made a party to the suit, either as plaintiff or defendant, for res judicata to apply. BUT the personal injury suffered by the stockholder cannot disqualify him from filing a derivative suit in behalf of the corporation. It merely gives rise to an additional cause of action for damages against the erring corporate officers. [Gochan v. Young (2001)]

•

guilty of a breach of trust, not of mere error of judgment or abuse of discretion, and intracorporate remedy is futile or useless, a shareholders may institute a derivative suit in behalf of himself and other stockholders and for the benefit of the corporation, to bring about a redress of the wrong inflicted directly upon the corporation and indirectly upon the stockholders. [Bitong v. CA (1998)] Jurisdiction over derivative suits lies with the RTC (Sec. 5.2, Securities Regulation Code)

Requisites based on jurisprudence •

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The cause of action actually devolves on the corporation, the wrong or harm having been, or being caused to it and not the shareholder filing the suit. [Evangelista vs. Santos (1950); SMC v. Kahn (1989)] The reliefs sought pertain to the corporation. [Symaco Trading Corp. v. Santos (2005)]

Recent rulings on the matter •

Status of heirs as co-owners of shares before partition of estate does not make them shareholders until there is compliance with Sec. 63 on the manner of transferring shares, thus the heirs are not automatically registered shareholders of the corporation. [Reyes v. RTC of Makati (2008)]

•

Stockholder may commence a derivative suit “for mismanagement, waste or dissipation of corporate assets because of a special injury to him for which he is otherwise without redress. In effect, the suit is an action for specific performance of an obligation owed by the corporation to the stockholders to assist its right of action when the corporation is put on default by the wrongful refusal of the directors or management to make suitable measures for its protection.” [Yu v. Yukayguan (2009)]

The power to sue and be sued in any court by a corporation even as a stockholder is lodged in the BOD that exercises its corporate powers and not in the president or officer thereof. But where corporate directors are

E. OBLIGATION OF A STOCKHOLDER E.1. LIABILITY TO THE CORPORATION FOR UNPAID SUBSCRIPTION (SEC. 67) A subscription contract is unconditional (i.e., obligation to pay is not be subject to any contingency) and indivisible (as to the amount and transferability — [Fua Cun v. Summers, (1923)]. Hence, if the subscriber paid 20% of his subscription, he is not entitled to the issuance of certificates corresponding to 20% of the shares. Unpaid claim refers to any unpaid subscription and not to any indebtedness which a subscriber may owe the corporation rising from any other transaction. [China Banking Corp. v. CA (1997)] E.2. LIABILITY TO THE CORPORATION FOR INTEREST ON UNPAID SUBSCRIPTION IF SO REQUIRED BY THE BY-LAWS (SEC. 66) General Rule: Subscribers for stock are NOT liable to pay interest on his unpaid subscription Exception: If so required in the by-laws at the rate fixed in the by-laws. If no rate is fixed in the by-laws, such rate shall be deemed to be the legal rate (Sec. 66) Notes: Transfer for consideration of treasury shares is a sale (or disposition) by the corporation (not subscription). A transfer of previously issued shares by a stockholder to a third person is a sale (or disposition). Transfer of unissued shares is subscription. Shareholders are not creditors of the corporation with respect to their

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shareholdings thereto and the principle of compensation or set-off has no application. Subscription contract is NOT required to be in writing. E.3. LIABILITY FOR WATERED STOCKS (SEC. 65) I. DEFINITION These are shares issued as fully paid when in truth no consideration is paid, or the consideration received is known to be less than the par value or issued value of the shares. (Sec. 65) These include the following: •

Issued share)

without

consideration

(bonus

•

Issued as fully paid when the corporation has received less sum of money than its par or issued value (discounted share)

•

Issued for consideration other than actual cash (i.e., property or services), the fair valuation of which is less than its par or issued value

•

Issue stock dividend when there are no sufficient retained earnings or surplus profit to justify it.

Note: Subsequent increase in the value of the property used in paying the stock does not do away with the watered stocks. Subsequent increase in the value of the property used in paying the stock does not cure the defect in issuance. The existence of watered stocks is determined at the time of issuance of the stock. II. LIABILITY OFFICERS

OF

DIRECTORS

OR

Any director or officer of a corporation consenting to the issuance of watered stocks or who, having knowledge thereof, does not forthwith express his objection in writing and file the same with the corporate secretary shall be SOLIDARILY liable with the stockholder concerned to the corporation and its creditors for the difference in value (Sec. 65).

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It is hornbook principle that personal liability of corporate directors, trustees or officers attaches only when: (a) they assent to a patently unlawful act of the corporation, or when they are guilty of bad faith or gross negligence in directing its affairs, or when there is a conflict of interest resulting in damages to the corporation, its stockholders or other persons; (b) they consent to the issuance of watered down stocks or when, having knowledge of such issuance, do not forthwith file with the corporate secretary their written objection; (c) they agree to hold themselves personally and solidarily liable with the corporation; or (d) they are made by specific provision of law personally answerable for their corporate action. [SPI Technologies Inc. v Mapua (2014)] E.4. LIABILITY UNLAWFULLY PAID

FOR

DIVIDENDS

When a director, trustee or officer attempts to acquire or acquires, in violation of his duty, any interest adverse to the corporation in respect of any matter which has been reposed in him in confidence, as to which equity imposes a disability upon him to deal in his own behalf, he shall be liable as a trustee for the corporation and must account for the profits which otherwise would have accrued to the corporation (Sec. 31). Violations of any of the provisions of the Corporation Code not otherwise specifically penalized therein shall be punished by a fine of not less than one thousand (P1,000.00) pesos but not more than ten thousand (P10,000.00) pesos or by imprisonment for not less than thirty (30) days but not more than 5 years, or both, in the discretion of the court (Sec. 144). E.5. LIABILITY FOR ASSUMING TO ACT AS A CORPORATION KNOWING IT TO BE WITHOUT AUTHORITY All persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all debts, liabilities and damages incurred or arising as a result thereof.

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When any such ostensible corporation is sued on any transaction entered or on any tort committed by it as a corporation, it shall not be allowed to use as a defense its lack of corporate personality. One who assumes an obligation to an ostensible corporation cannot resist performance thereof on the ground that there was in fact no corporation (Sec. 21).

date in April of every year as determined by the BOD or trustees. Special meetings of stockholders or members shall be held at any time deemed necessary or as provided in the by-laws. W here? •

Stock: City or municipality where the principal office of the corporation is located, or, if practicable, in the principal office of the corporation: Provided, Metro Manila shall be considered a city or municipality. (Sec. 51)

•

Non-stock: Any place even outside the place where the principal office is located, within the Philippines (Sec. 93)

F. MEETINGS General Rule: Stockholders’ or members’ approval is expressed in a meeting duly called and held for the purpose.

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Exception: In case of amendment of Articles of Incorporation, approval may be expressed by referendum or written assent of the stockholders or members (Sec. 16)

II. NOTICE (SEC. 50)

W HO MAY ATTEND AND VOTE?

•

Regular M eeting—written notice sent to all shareholders or members at least 2 weeks prior to the meeting, unless a different period is required by the by-laws

•

Special Meeting—written notice sent at least 1 week prior to the meeting, unless otherwise provided in the by-laws.

•

Subject to waiver, expressly or impliedly (i.e., attendance despite no notice)

•

Stockholders, either in person or by proxy

•

Pledgors or mortgagors (Sec. 55)

•

Pledgee or mortgagee, IF expressly given such right by the pledgor or mortgagor in writing which is recorded on the corporate books(Sec. 55)

•

Executors, administrators, receivers, and other legal representatives duly appointed by the court, without need of any written proxy(Sec. 55)

•

ALL joint owners of stocks, or any one of them with the consent of ALL the coowners, unless there is a written proxy, signed by all the co-owners(Sec. 56)

•

Any one of the joint owners of shares owned in an "and/or" capacity or a proxy thereof(Sec. 56)

Effect of Failure to Give Notice: Failure to give notice would render a meeting VOIDABLE at the instance of an absent stockholder, who was not notified of the meeting (Board v. Tan, 1959).

F.2. WHO CALLS THE MEETINGS Any petitioning stockholder or member upon order of the SEC when there is no person authorized to call a meeting. (Sec. 50)

F.1. REGULAR OR SPECIAL I. W HEN AND W HERE W hen? (Sec. 50) Regular meetings of stockholders or members shall be held annually on a date fixed in the by-laws, or if not so fixed, on any

F.3. WHO PRESIDES AT THE MEETINGS The president, unless the by-laws provide otherwise.(Sec. 54)

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The petitioning stockholder or member (when there is no person authorized to call a meeting) shall preside thereat until at least a majority of the stockholders or members present have chosen one of them as presiding officer.(Sec. 50) F.4. QUORUM General Rule: Stockholders representing majority of the Outstanding Capital Stock or majority of the members Exception: The Code or the by-laws provide otherwise Where quorum is present at the start of a lawful meeting, stockholders present cannot without justifiable cause break the quorum by walking out from said meeting so as to defeat the validity of any act proposed and approved by the majority. (However, stockholders can break the quorum for justifiable causes.) (Johnston vs. Johnston, 1965 CA decision) Regular Stockholders Meetings

Special Stockholders Meetings

W HEN held annually on a date fixed in the bylaws, or if not so fixed, on any date in April of every year as determined by the BOD or trustees

at any time upon the call of the president or as provided in the by-laws

W HERE STOCK - City or municipality where the principal office of the corporation is located, or, if practicable, in the principal office of the corporation: Provided, Metro Manila shall be considered a city or municipality (sec. 51) NON-STOCK - Any place even outside the place where the principal office is located, within the Philippines (sec. 93)

MERCANTILE LAW

Regular Stockholders Meetings

Special Stockholders Meetings

notice sent to all shareholders or members at least 2 weeks prior to the meeting, unless a different period is required by the bylaws

notice sent to all shareholders or members at least 1 week prior to the meeting, unless otherwise provided in the by-laws

QUORUM General Rule: Stockholders representing majority of the Outstanding Capital Stock or majority of the members Exception: The Code or the by-laws provide otherwise F.5. MINUTES OF THE MEETINGS A record of all the minutes of all meetings of stockholders or members, or of the BOD or trustees shall be kept and preserved at the principal office of every corporation. Contents: •

time and place of holding the meeting;

•

how the meeting was authorized;

•

the notice given;

•

whether the meeting was regular or special, if special its object;

•

those present and absent; and

•

every act done or ordered done at the meeting.

Upon dem and by any director/trustee or shareholders/m em ber, the following shall also be noted in the minutes: •

the time when any director, trustee, stockholder or member entered or left the meeting;

•

the yeas and nays on any motion or proposition;

NOTICE

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the protest of any director/trustee or stockholder/member on any action or proposed action.

Notes: The minutes of any meetings shall be open to inspection by any director/trustee or stockholder/member at reasonable hours on business days. The director/trustee or stockholder/member may demand, in writing, for a copy of excerpts from said records or minutes, at his expense. Any officer or agent of the corporation refusing to allow the examination and copying of the minutes shall be: (1) liable to the director/trustee stockholder/ member; and

or

(2) guilty of an offense punishable under Sec. 144 (Sec. 74) However, the officer of agent may use as a defense that: (1) the person demanding examination or copy thereof made improper use of any information secured through any prior examination of the records or minutes of such corporation or of any other corporation thereby; (2) the person demanding examination or copy acts in bad faith or has no legitimate purpose in making his demand.

MERCANTILE LAW

A. 1. CHARACTERISTICS A subscription is a contract for the acquisition of unissued stock of a corporation whether existing or still to be formed, and is in effect the contribution or promised contribution of a person to the capital of a corporation [Campos]. There can be a subscription only with reference to unissued shares of the Authorized Capital Stock (ACS), in the following cases: (1) The original issuance of the ACS at the time of incorporation. (2) The opening, during the life of the corporation, of the portion of the original ACS previously unissued; or (3) The increase in ACS achieved through a formal amendment of the Articles and registration thereof with the SEC. [Villanueva] A. 2. STATUS AS SHAREHOLDER One may become a shareholder in a corporation in either of two ways: (1) By entering into a SUBSCRIPTION CONTRACT with an existing or still to be formed corporation (he becomes a stockholder upon acceptance of the corporation of his offer to subscribe whether the consideration is fully paid or not). •

IX. Capital Structure

Once a subscription contract is perfected, the stockholder becomes a debtor to the corporation and may be liable to pay any unpaid portion thereof upon call by the BOD.

(2) By acquisition of already issued shares through:

A. SUBSCRIPTION AGREEMENTS Any contract for the acquisition of unissued stock in an existing corporation or a corporation still to be formed shall be deemed a subscription contract (Sec. 60).

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(a) purchase of TREASURY SHARES from the corporation (b) acquisition of shares from existing shareholders by SALE OR ANY OTHER CONTRACT [Sundiang and Aquino]

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Notes Transfer of SUBSCRIPTION

Notes unissued

shares

=

Transfer of already issued shares = NOT SUBSCRIPTION; can either be: •

SALE/DISPOSITION BY CORPORATION of treasury shares

•

SALE/DISPOSITION BY STOCKHOLDER TO A THIRD PERSON

A. 3. TYPES CONTRACTS

MERCANTILE LAW

OF

SUBSCRIPTION

I. PRE-INCORPORATION SUBSCRIPTION (SEC. 61)

Shareholders are NOT creditors of the corporation with respect to their shareholdings thereto and the principle of compensation or set-off has no application. Subscription contract is NOT required to be in writing.

B. CONSIDERATION FOR STOCKS B. 1. FORMS OF CONSIDERATION (SEC. 62) •

Actual cash

•

Property, tangible or intangible, actually received by the corporation and necessary or convenient for its use and lawful purposes at a fair valuation equal to the par or issued value of the stock issued

It is a subscription for shares of stock of a corporation still to be formed. When pre-incorporation IRREVOCABLE:

subscription

is

(1) For a period of at least 6 months from the date of subscription, UNLESS (a) all of the other subscribers consent to the revocation, or (b) the incorporation fails to materialize within 6 months or within a longer period as may be stipulated in the contract of subscription; or (2) After the submission of the Articles of Incorporation to the SEC. II. POST-INCORPORATION SUBSCRIPTION It is entered into after incorporation. A. 4. INTEREST SUBSCRIPTION

ON

-

Property should NOT be encumbered. Otherwise, it would impair the consideration.

-

Valuation is initially determined by the incorporators or the BOD, subject to approval by the SEC.

§

Labor performed for or services actually rendered to the corporation;

§

Amounts transferred from unrestricted retained earnings to stated capital (declaration of stock dividends); and

§

Outstanding shares exchanged for stocks in the event of reclassification or conversion;

§

Previously incurred indebtedness of the corporation;

UNPAID B. 2. LIMITATIONS ON CONSIDERATION

General Rule

Stocks shall NOT be issued:

Stockholder is NOT liable to pay interest on his unpaid subscription.

•

for a consideration less than the par or issued price thereof

•

in exchange for promissory notes or future service

Exception If so required by the by-laws RATE: that fixed in the by-laws, otherwise, the legal rate (Sec. 66)

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Notes Promissory notes and future service may be used as consideration provided that certificates of stock will be issued ONLY AFTER actual encashment of promissory note or performance of such services.

C. SHARES OF STOCK

MERCANTILE LAW

common of the corporate property. [Stockholders of F. Guanzon and Sons, Inc. v Register of Deeds of Manila (1962)] C. 2. SUBSCRIPTION AGREEMENTS (SEE ABOVE) C. 3. CONSIDERATION FOR SHARES OF STOCK (SEE ABOVE)

C. 1. NATURE OF STOCK Shares of stock are units into which the capital stock is divided. A share of stock represents interest of the holder thereof to participate in the management of the corporation, to share proportionally in the profits of the business and, upon liquidation, to obtain an aliquot part of corporate assets after all corporate debts have been paid. [Campos] A stockholder may own the share even if he is not holding a certificate of stock. Share of Stock

Certificate of Stock

Unit of interest in a corporation

Evidence of the holder’s ownership of the stock and of his right as a shareholder and up to the extent specified therein.

An incorporeal or intangible property

Concrete and tangible

May be issued by the corporation even if the subscription is not fully paid

May be issued only if the subscription is fully paid

C. 4. WATERED STOCK I. DEFINITION These are shares issued as fully paid when in truth no consideration is paid in any form, or the consideration received is known to be less than the par value or issued value of the shares. (Sec. 65) These include the following: §

Issued without consideration (bonus share)

§

Issued as fully paid when the corporation has received less sum of money than its par or issued value (discounted share)

§

Issued for consideration other than actual cash (i.e., property or services), the fair valuation of which is less than its par or issued value

§

Issue stock dividend when there are no sufficient retained earnings or surplus profit to justify it.

Note

A share of stock only typifies an aliquot part of the corporation's property, or the right to share in its proceeds to that extent when distributed according to law and equity, but its holder is not the owner of any part of the capital of the corporation. Nor is the shareholder entitled to the possession of any definite portion of its property or assets. The stockholder is not a co-owner or tenant in

Subsequent increase in the value of the property used in paying the stock does not do away with the watered stocks. Subsequent increase in the value of the property used in paying the stock does not cure the defect in issuance. The existence of watered stocks is determined at the time of issuance of the stock. II. LIABILITY OF DIRECTORS W ATERED STOCKS

FOR

Any director or officer of a corporation consenting to the issuance of watered stocks or who, having knowledge thereof, does not

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forthwith express his objection in writing and file the same with the corporate secretary shall be solidarily liable with the stockholder concerned to the corporation and its creditors for the difference in value (Sec. 65). III. TRUST FUND DOCTRINE FOR LIABILITY FOR W ATERED STOCKS Where the corporation issues watered stock and thereby assumes an ostensible capitalization in excess of its real assets, the transaction necessarily involves the misleading of subsequent creditors, and whether done with that purpose actually in mind or not, is at least a constructive fraud upon creditors. Hence, it is held that recovery may be had by a creditor in such case, even though the corporation itself has no cause of action against the stockholders. Some of the earlier decisions put the right of recovery in such a case upon the so-called “trust fund doctrine.” In any view of the matter, however, the creditors’ right of action to compel the making good of the representation as to the corporation’s capital is based on fraud, and the trust fund doctrine is only another way of expressing the same underlying idea. [De Leon]

with the statutory regulations is necessary. [Philippine Trust Corp. v. Rivera (1923)] C. 5. SITUS OF THE SHARES OF STOCK It is a general rule that for purposes of execution, attachment and garnishment, it is not the domicile of the owner of a certificate but the domicile of the corporation which is decisive. [Chua Guan v. Samahang Magsasaka, Inc. (1935)] C. 6. CLASSES OF SHARES OF STOCK Shares of stock of stock corporations may be divided into classes or series of shares or both. Each class or series of shares may have rights, privileges or restrictions, as stated in the Articles of Incorporation. Classification of shares: (1) Common shares (2) Preferred shares (a) Preference as to dividends (i) Participating participating

and

non-

(ii) Cumulative and non-cumulative (3) Par value shares

Despite the view of foreign authors that the fraud theory is the prevailing view, it would seem that in the Philippine jurisdiction, the trust fund doctrine on watered stock prevails. It is established doctrine that subscription to the capital of a corporation constitute a fund to which creditors have a right to look for satisfaction of their claims and that the assignee in insolvency can maintain an action upon any unpaid stock subscription in order to realize assets for the payment of its debts (citing Velasco v. Poizat, 1918). A corporation has no power to release an original subscriber to its capital stock from the obligation of paying for his shares, without a valuable consideration for such release; and as against creditors a reduction of the capital stock can take place only in the manner and under the conditions prescribed by the statute or the charter or the articles of incorporation. Moreover, strict compliance

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(4) No-par value shares (5) Founder’s shares (6) Redeemable shares (7) Treasury shares (8) Convertible shares (9) Non-voting shares General Rule No share may be deprived of voting rights (Sec. 6) Exceptions

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•

Preferred non-voting or

•

Redeemable shares,

•

Provided by the Code (e.g., Treasury shares)

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There shall always be a class/series of shares which have COMPLETE VOTING RIGHTS (Sec. 6)

Preference as to dividends: (1) Participating and Non-participating (a) Participating - those which, after getting their fixed dividend preference, share with common stocks the rest of the dividends.

Doctrine of Equality of Shares Each share shall be EQUAL in ALL respects to every other share, except as otherwise provided in the Articles of Incorporation and stated in the certificate of stock (Sec. 6)

(b) Non-participating - those which, after getting their fixed dividend preference, have no more right to share in the remaining dividends with the common stocks.

I. COMMON SHARES The most common type of shares, which enjoy no preference but the owners thereof are entitled to management (via exclusive right to vote) of the corporation and to equal pro-rata division of profits after preference. It represents a residual ownership interest in the corporation.

(c) Unless otherwise provided, preferred stocks are non-participating. (2) Cumulative and Non-cumulative

II. PREFERRED SHARES Stocks which are given preference by the issuing corporation in dividends, or in the distribution of assets of the corporation in case of liquidation, or both, or such other preferences as may be stated in the Articles of Incorporation which do not violate the Corporation Code. Unless the right to vote is clearly withheld, a preferred stockholder would have such right as it is an incident to stock ownership. Lim itations: •

Preferred shares can only be issued with par value.

•

Preferred shares must be stated in the Articles of Incorporation and in the certificate of stock.

•

The BOD may fix the terms and conditions only when so authorized by the Articles of Incorporation and such terms and conditions shall be effective upon filing a certificate thereof with the SEC.

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(a) Cumulative - regardless of lack of profits in any given year, and lack of declaration of dividends, the arrears for such year have to be paid to the preferred stocks in a subsequent year (once profits are made) before any dividends can be paid to the common stocks. (b) Non-Cumulative – entitlement to receipt of dividends essentially depends on declaration of such; types: (i) Discretionary – right to dividends in a particular year depends on the discretion of the board, even if the corporation has profits. (ii) Mandatory – a positive duty is imposed to declare preferred dividends every year that profits are earned. (iii) Earned cumulative or dividend credit – board with discretion not to declare dividends even if there were profits in a certain year; however, once the board decides that dividends will be declared, the preferred stockholders have a right to arrears in dividends for the years when there were profits but no dividend was declared.

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(c) In the absence of any express stipulation, preferred stocks are deemed cumulative. Note: Only preferred and redeemable shares may be deprived of the right to vote. (Sec. 6, Corporation Code) Exception: As otherwise provided in the Corporation Code.

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•

Cannot be issued as preferred stocks (Sec. 6)

•

Cannot be issued by banks, insurance companies, trust companies, building and loan associations, and public utilities (Sec. 6)

•

Issued price may be fixed in the Articles of Incorporation, or by the BOD pursuant to authority conferred upon it by the Articles of Incorporation, or, in the absence thereof, by majority vote of the outstanding shares in a meeting called for the purpose (Sec. 62).

III. PAR VALUE SHARES These are shares with a stated value set out in the Articles of Incorporation. This remains the same regardless of the profitability of the corporation. This gives rise to financial stability and is the reason why banks, trust corporations, insurance companies and building and loan associations must always be organized with par value shares. Par value is minimum issue price of such share in the Articles of Incorporation which must be stated in the certificate. IV. NO-PAR VALUE SHARES These are shares without a stated value. “A no par share does not purport to represent any stated proportionate interest in the capital stock measured by value, but only an aliquot part of the whole number of such shares of the issuing corporation” (Agbayani) Lim itations: •

Cannot have an issue price of less than P5.00 per share (Sec. 6)

•

Once issued, they shall be deemed fully paid and non-assessable and the holders of such shares shall not be liable to the corporation or to its creditors in respect thereto (Sec. 6)

•

Entire consideration received by the corporation shall be treated as capital and shall not be available for distribution as dividends (Sec. 6)

•

Articles of Incorporation must state the fact that the corporation issues no-par shares and the number of shares

V. FOUNDER’S SHARES (SEC. 7) These are shares, classified as such in the Articles of Incorporation, which are given certain rights and privileges not enjoyed by the owners of other stocks. Where exclusive right to vote and be voted for in the election of directors is granted, such right must be for a limited period not to exceed 5 years subject to approval by SEC. The 5 year period shall commence from date of approval by SEC. VI. REDEEMABLE SHARES (SEC. 8) These are shares which permit the issuing corporation to redeem or purchase its shares. Lim itations:

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•

Redeemable shares may be issued only when expressly provided for in the Articles of Incorporation (Sec. 8).

•

The terms and conditions affecting said shares must be stated both in the Articles of Incorporation and in the certificate of stock (Sec. 8).

•

Redeemable shares may be deprived of voting rights in the Articles of Incorporation.

•

The corporation is required to maintain a sinking fund to answer for redemption price if the corporation is required to redeem. [SEC-OGC Opinion No. 07-03]

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•

The redeemable shares are deemed retired upon redemption unless otherwise provided in the Articles of Incorporation (i.e., if the Articles of Incorporation allows for reissuance of such shares).

•

Unrestricted retained earnings is NOT necessary before shares can be redeemed but there must be sufficient assets to pay the creditors and to answer for operations. [Republic Planters Banks v. Agana (1997)]

•

Redemption cannot be made if such redemption will result in insolvency or inability of the corporation to meet its obligations (SEC Opinion, 24 Aug 1987).

Note Redeemable shares reacquired shall be considered retired and no longer issuable, unless otherwise provided in the Articles of the redeeming corporation (SEC Rules Governing Redeemable and Treasury Shares, 26 April 1982).

MERCANTILE LAW

outstanding shares. Consequently, although a treasury share, not retired by reacquisition, may be re-issued or resold, such share, as long as it is held by the corporation as a treasury share, participates neither in the dividends, because dividends cannot be declared by the corporation to itself nor in the meetings of the corporation as voting stock, for otherwise equal distribution of voting powers among stockholders will be effectively lost and the directors will be able to perpetuate their control of the corporation, though it still represents a paid for interest in the property of the corporation. [CIR v. Manning (1975) cited in San Miguel Corporation v. Sandiganbayan (2000)] Note Delinquent stocks, which are stocks that have not been fully paid, may become treasury stocks upon bid of the corporation in absence of other bidders (Sec.68). VIII. CONVERTIBLE SHARES A type of preferred stock that the holder can exchange for a predetermined number of common shares at a specified time IX. NON-VOTING SHARES (SEC. 6)

VII. TREASURY SHARES (SEC. 9)

General Rule

These are shares which have been issued and fully paid for, but subsequently re-acquired by the issuing corporation by purchase, redemption, donation or through some other lawful means. Such shares may again be disposed of for a reasonable price fixed by the BOD.

Non-Voting Shares are not entitled to vote. Exceptions

They are excluded from the definition of outstanding capital stock [Sec. 137] Treasury shares shall have no voting right as long as such shares remain in the Treasury. [Sec. 57] Pre-emptive right of stockholders in close corporations shall extend to reissuance of treasury shares unless otherwise provided in the Articles of Incorporation. [SEC. 102] Treasury shares are issued shares, but being in the treasury, do not have the status of

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•

Amendment of Incorporation

•

Adoption and amendment of by-laws

•

Sale, lease, exchange, other disposition of all or substantially all of the corporate property

•

Incurring, creating or bonded indebtedness

•

Increase or decrease of capital stock

•

Merger and consolidation

•

Investment of corporate funds in another corporation or business

•

Dissolution

of

the

the

Articles

of

increasing

corporation

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Common

Preferred

Definition

Stock which entitles the owner of such stocks to an equal pro rata division of profits

Stock which entitles holder to some preference either in dividends or distribution of assets upon liquidation, or in both

Voting Rights

Usually vested with the exclusive right to vote

Value

Depends if it’s par or no par

Can vote only under certain circumstan ces Stated par value

Preference Upon Liquidation

No advantage, priority, or preference over any other SH in the same class

Par

Depends if it’s common or preferred Fixed in the AOI, and indicated in the stock certificate. May be sold at a value higher, but not lower, than that fixed in the AOI.

No Par*

Depends if it’s common or preferred Value not fixed in the AOI, and therefore not indicated in the stock cert. Price may be set by BOD, SH’s or fixed in the AOI after.

First crack at dividends / profits / distribution of assets

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Treasury

Redeemable

Founder’s

Shares that have been issued and fully paid but subsequently reacquired by the issuing corporation by lawful means.

Shares issued by the corporation that may be taken up by the corp upon expiration of a fixed period. regardless of the existence of unrestricted retained earnings Usually denied voting rights.

Special shares whose exclusive rights and privileges are determined by the AOI.

None for as long as stock remains in the treasury (Sec. 57)

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D. PAYMENT OF BALANCE SUBSCRIPTION (SEC. 66 AND 67)

OF

an action for the call. [Lingayen Gulf Electric Power Co., Inc. v. Baltazar (1965)] •

D. 1. CALL BY BOD The BOD of any stock corporation may at any time declare due and payable to the corporation unpaid subscriptions to the capital stock and may collect the same or such percentage thereof, in either case with accrued interest, if any, as it may deem necessary. Payment shall be made on the date specified in the contract of subscription or on the date stated in the call. Failure to pay on such date shall render the entire balance due and payable and shall make the stockholder liable for interest at the legal rate on such balance, unless a different rate of interest is provided for in the by-laws. If within 30 days from said date no payment is made, all stocks covered by said subscription shall become delinquent and subject to sale under Sec. 68 unless the BOD orders otherwise. There are 2 instances when call is not necessary to make the subscriber liable for payment of the unpaid subscription: (1) When, under the terms of the subscription contract, subscription is payable, not upon call, but immediately, or on a specified day, or when it is payable in installments at specified times; and (2) If the corporation becomes insolvent, which makes the liability on the unpaid subscription due and demandable, regardless of any stipulation to the contrary in the subscription agreement [Villanueva] D. 2. NOTICE REQUIREMENT Where call is necessary, notice must be given to the stockholder concerned. A call without notice to the subscriber is practically no call at all.

MERCANTILE LAW

The right to notice of call, however, may be waived by the subscriber. [De Leon]

D. 3. SALE OF DELINQUENT SHARES (SEC. 68) Delinquent Shares - These are shares for which the corresponding subscription or balance remains unpaid after a grace period of 30 days from the date specified in the contract of subscription or from the date stated in the call made by the BOD. (Sec. 67) I. EFFECT OF DELINQUENCY (SEC. 71) No delinquent stock shall be voted for or be entitled to vote or to representation at any stockholders’ meeting The holder thereof shall NOT be entitled to any of the rights of a stockholder except the right to dividends. But the dividends it will receive will be subject to Sec. 43, that is, cash dividends shall first be applied to the unpaid balance on the subscription plus costs and expenses, and stock dividends shall be withheld until the unpaid subscription is fully paid. Such shares shall be subject to delinquency sale. II. CALL BY RESOLUTION OF THE BOD (SEC. 68) The BOD may, by resolution, order the sale of delinquent stock and shall specifically state the amount due on each subscription plus all accrued interest, and the date, time and place of the sale which shall not be less than 30 days nor more than 60 days from the date the stocks became delinquent, which is 30 days after the date specified in the contract of subscription or on the date stated in the call.

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III. NOTICE OF SALE

interest, costs of advertisement and expenses of the sale.

If the BOD resolves to proceed with the sale: (1) Notice of sale and a copy of the resolution shall be sent to every delinquent stockholder either personally or by registered mail. (2) Notice of sale shall furthermore be published once a week for 2 consecutive weeks in a newspaper of general circulation in the province or city where the principal office of the corporation is located. IV. AUCTION SALE AND THE HIGHEST BIDDER Procedure for delinquency sale (Sec. 68) •

Call for payment made by the BOD.

•

Notice of call served on each stockholder.

•

Notice of delinquency issued by the BOD upon failure of the stockholder to pay within 30 days from date specified.

•

Service of notice of delinquency on the non-paying subscriber, PLUS publication in a newspaper of general circulation in the province or city where the principal office of the corporation is located, once a week for 2 consecutive weeks.

Note Requirements on notice and publication are mandatory. Lacking such requirements, the stockholder may question the sale as provided under Sec. 69. •

MERCANTILE LAW

Public auction - the highest bidder is one who is willing to pay the balance of the subscription for the least number of shares. If there are no bidders, the corporation must bid for the whole number of shares regardless of how much the shareholders has paid. Such stocks will pertain to the corporation as fully paid treasury stocks.

The delinquent stockholder may stop the auction by paying to the corporation on or before the date specified for the sale the balance due on his subscription, plus accrued

Otherwise, the public auction shall proceed and the delinquent shares shall be sold to the bidder that will pay the full amount of the balance of subscription with accrued interest, costs and expenses of the sale, for the smallest number of shares or fraction of a share. The stock so purchased shall be transferred to such purchases in the books of the corporation and a certificate of such stock shall be issued in his favor. The remaining shares, if any, shall be credited in favor of the delinquent stockholder who shall likewise be entitled to the issuance of a certificate of stock covering such shares. Irregularities in the delinquency sale (Sec. 69) •

Action to recover delinquent stock must be on the ground of irregularity or defect in: o

the notice of sale or

o

in the sale itself of delinquent stock

•

Unless, party seeking to recover first pays or tenders to the party holding the stock the sum for which the same was sold, with interest from the date of sale at the legal rate.

•

The action must be commenced within 6 months from the date of sale.

E. CERTIFICATE OF STOCK E. 1. NATURE OF THE CERTIFICATE A certificate of stock is an instrument formally issued by the corporation with the intention that the same constitute the best evidence of the rights and status of a shareholders (not a condition precedent to the acquisition of such rights). A certificate of stock is the paper representative or tangible evidence of the stock itself and of the various interests therein. The certificate is not a stock in the corporation but is merely evidence of the holder’s interest and status in the corporation,

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his ownership of the share represented thereby. It is not in law the equivalent of such ownership. It expresses the contract between the corporation and the stockholder, but is not essential to the existence of a share of stock or the nature of the relation of shareholder to the corporation. [Makati Sports Club v. Cheng (2010)] Shares of stock issued pursuant to requisites in Section 63 are personal property and may be transferred by delivery of the certificate or certificates indorsed by the owner, attorney in fact, or other person legally authorized to make the transfer. [Sec. 63] E. 2. UNCERTIFICATED SHARES

Transfers of uncertificated securities, how m ade §

Uncertificated Shares/Securities Security evidenced by electronic or similar records (Sec. 3.14, Securities Regulation Code)

§

If so resolved by the BOD and agreed by a shareholder, investor or securities interm ediary, issue shares to, or record the transfer of some or all its shares into the name of such shareholders, investors or, securities intermediary in the form of uncertified securities

The use of uncertified securities in these circumstances shall be without prejudice to the rights of the securities intermediary subsequently to require the corporation to issue a certificate in respect of any shares recorded in its name; and §

If so provided in its articles of incorporation and by-laws, issue all of the shares of a particular class in the form of uncertificated securities and subject to a condition that investors may not require the corporation to issue a certificate in respect of any shares recorded in their name.

Valid as between parties - validly made and consummated by appropriate book-entries in the securities intermediaries, or in the stock and transfer book held by the corporation or the stock transfer agent.

A transfer made pursuant to the foregoing has the effect of delivery of a security in bearer form or duly indorsed in blank representing the amount of security or right transferred, including the unrestricted negotiability of that security by reason of such delivery. §

Notwithstanding Sec. 63 of the Corporation Code (certificate of stock and transfer of shares), a corporation whose securities are registered pursuant to the SRC or listed on securities exchange may:

MERCANTILE LAW

Valid as to corporation – when the transfer is recorded in the books of the corporation so as to show the names of the parties to the transfer and the number of shares transferred (Sec. 43, Securities Regulation Code).

E. 3. NEGOTIABILITY Theory of Quasi-Negotiability A stock certificate is regarded as quasinegotiable only in the sense that it may be transferred by endorsement, coupled with delivery. This notwithstanding, it is well-known that the instrum ent is non-negotiable, because the holder thereof takes it without prejudice to such rights or defenses as the registered owner or creditor may have under the law, except insofar as such rights or defenses are subject to the limitations imposed by the principles governing estoppel. Certificates of stock are not negotiable instruments. Consequently, a transferee under a forged assignment acquires no title which can be asserted against the true owner, unless the latter’s negligence has been such as to create an estoppel against him. If the owner of the certificate has endorsed it in blank, and it is stolen from him, no title is acquired by on innocent purchaser for value. [De los Santos v. Republic (1955)]

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I. REQUIREMENTS FOR TRANSFER OF STOCKS For a valid transfer of requirements are as follows:

VALID

stocks,

the

(1) There must be delivery of the stock certificate; (2) The certificate must be endorsed by the owner or his attorney-in-fact or other persons legally authorized to make the transfer; and (3) To be valid against third parties, the transfer must be recorded in the books of the corporation (i.e., showing the names of the parties to the transaction, the date of the transfer, the number of the certificate or certificates and the number of shares transferred) [Sec. 63] [Bitong v. CA (1998)] No shares of stock against which the corporation holds an unpaid claim shall be transferable in the books of the corporation (Sec. 63). The Corporation Code acknowledges that the delivery of a duly indorsed stock certificate is sufficient to transfer ownership of shares of stock in stock corporations. Such mode of transfer is valid between the parties. In order to bind third persons, however, the transfer must be recorded in the books of the corporation. Clearly then, the absence of a deed of assignment is not a fatal flaw which renders the transfer invalid.

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execution of a deed of assignment. [Rural Bank of Lipa City v. CA (2001)] The stock and transfer book is the basis for ascertaining the persons entitled to the rights and subject to the liabilities of a stockholder. Where a transferee is not yet recognized as a stockholder, the corporation is under no specific legal duty to issue stock certificates in the transferee’s name. [Ponce v. Alsons Cement Corp. (2002)] •

Citing Hager v. Bryan (1911): A mandamus should not issue to compel the secretary of a corporation to make a transfer of the stock on the books of the company, unless it affirmatively appears that he has failed or refused so to do, upon the demand either of the person in whose name the stock is registered, or of some person holding a power of attorney for that purpose from the registered owner of the stock.

A transfer of shares is not valid unless recorded in the books of the corporation. The purpose of registration is two-fold: (a) to enable the transferee to exercise all the rights of a stockholder, including the right to vote and to be voted for, and (b) to inform the corporation of any change in share ownership so that it can ascertain the persons entitled to the rights and subject to the liabilities of a stockholder. [Batangas Laguna Tayabas Bus Co. v. Bitangas (2001)] •

Requisites for a valid transfer Sec. 63: (1) Between the parties: (a) Delivery (b) Indorsement (2) To be valid as to third persons: (a) Recorded in the books of the corporation [Republic v. Estate of Hans Menzi (2005)] The execution of a deed of sale does not necessarily make the transfer effective. The delivery of the stock certificate duly indorsed by the owner is the operative act that transfers the shares. The absence of delivery is a fatal defect which is not cured by mere PAGE 203 OF 320

Until challenged in a proper proceeding, a stockholder of record has a right to participate in any meeting; his vote can be properly counted to determine whether a stockholders’ resolution was approved, despite the claim of the alleged transferee. On the other hand, a person who has purchased stock, and who desires to be recognized as a stockholder for the purpose of voting, must secure such a standing by having the transfer recorded on the corporate books. Until the transfer is registered, the transferee is not a stockholder but an outsider.

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E. 4. ISSUANCE

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regarding the certificates.

I. FULL PAYMENT

ownership

of

said

Note

General Rule No certificate of stock shall be issued to a subscriber until the full am ount of his subscription together with interest and expenses (in case of delinquent shares), if any is due, has been paid (Sec. 64) Exception Where it was the practice of the corporation since its inception to issue certificates of stock to its individual SHs for unpaid shares of stock and to give full voting power to shares fully paid. [Baltazar v. Lingayen Gulf Electric Power Company (1965)] II. PAYMENT PRO-RATA The entire subscription must be paid first before the certificates of stock can be issued. Partial payments are to be applied pro rata to each share of stock subscribed. [Nava Peers Mktg. Corp. and Fua Cun v. Summers (1923)] E. 5. LOST OR DESTROYED CERTIFICATES

Except in cases of fraud, bad faith, or negligence on the part of the corporation and its officers, no action may be brought against the corporation which shall have issued certificates of stock in lieu of those lost, stolen or destroyed pursuant to the above procedure.

F. STOCK AND TRANSFER BOOK F. 1. CONTENTS •

a record of all stocks in the names of the stockholders alphabetically arranged;

•

the installments paid and unpaid on all stock for which subscription has been made, and the date of payment of any installment;

•

a statement of every alienation, sale or transfer of stock made, the date thereof, and by and to whom made; and

•

such other entries as the by-laws may prescribe.

Procedure for re-issuance in case of loss, stolen or destroyed certificates: (1) Registered owner to file an affidavit of loss with the corporation. (2) Publication of notice of loss in a newspaper of general circulation published in the place where the corporation has its principal office, once a week for 3 consecutive weeks at the expense of the owner of the certificate of stock

F. 2. WHO MAY MAKE VALID ENTRIES (1) An SEC-licensed stock transfer agent; or (2) The Corporate Secretary of the stock corporation provided all rules and regulations imposed on stock transfer agents shall be applicable, except payment of license fee.

(3) Cancellation of the certificate in the books of the corporation and issuance of new certificates, after the expiration of 1 year from the date of the last publication and there is no contest. The right to make such contest shall be barred after the expiration of the one-year period.

G. DISPOSITION AND ENCUMBRANCE OF SHARES

(4) Issuance of new certificates before 1 year period if the registered owner files a bond and there is no pending contest

Shares of stock so issued are personal property and may be transferred (Sec. 63). (FREE TRANSFERABILITY OF SHARES)

G. 1. ALLOWABLE RESTRICTIONS ON THE SALE OF SHARES General Rule

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Exception In CLOSE corporations, restrictions on the right to transfer shares may be provided in the Articles of Incorporation, by-laws and certificates (Sec. 98). G. 2. SALE OF PARTIALLY PAID SHARES Under Sec. 63 of the Corporation Code, no shares of stock against which the corporation holds any unpaid claim shall be transferable in the books of the corporation. Therefore, a corporation may refuse to acknowledge and register a sale or assignment of shares which are not fully paid, and may continue to hold the original subscriber liable on the payment of the subscription. However, in China Banking Corp. v. CA (1997), the court said that the above principle in section 63 cannot be utilized by the corporation to refuse to recognize ownership over pledged shares purchased at public auction. The term “unpaid claims” refers to “any unpaid claims arising from unpaid subscription, and not to any indebtedness which a subscriber or stockholder may owe the corporation arising from any other transactions. Obligations arising from unpaid monthly dues do not fall within the coverage of Sec. 63.” G. 3. SALE OF A PORTION OF SHARES NOT FULLY PAID The SEC has opined on several occasions that a stockholder who has not paid the full amount of his subscription cannot transfer part of his subscription in view of the indivisible nature of a subscription contract. The reason behind the principle of disallowing transfer of not fully paid subscription to several transferee is that it would be difficult to determine whether or not the partial payments made should be applied as full payment for the corresponding number of shares which can only be covered by such payment or as proportional payment to each and all of the entire number of subscribed shares, and it would be difficult to determine the unpaid balance to be assumed by each transferee. [Villanueva]

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G. 4. SALE OF ALL OF SHARES NOT FULLY PAID On the other hand, the SEC has opined that the entire subscription, although not yet fully paid, may be transferred to a single transferee, who as a result of the transfer must assum e the unpaid balance. It is necessary, however, to secure the consent of the corporation since the transfer of subscription rights and obligations contemplates a novation of contract which under Article 1293 of the Civil Code cannot be made without the consent if the creditor. [Villanueva] G. 5. SALE OF FULLY PAID SHARES Shares of stock so issued are personal property and may be transferred by delivery of the certificate or certificates indorsed by the owner or his attorney-in-fact or other person legally authorized to make the transfer. No transfer however shall be valid except as between the parties until the transfer is recorded in the books of the corporation showing the names of the parties to the transaction, the date of the transfer, the number of the certificate or certificates and the number of shares transferred (Sec. 63) G.6. REQUISITES OF A VALID TRANSFER Same as requirements for valid transfer of stocks G. 7. INVOLUNTARY DEALINGS WITH SHARES The right of a stockholder to pledge, mortgage or otherwise encumber his shares is recognized under Sec. 55 of the Corporation Code, which regulates the manner of voting on pledged or mortgaged shares. If the restriction on the right to pledge or mortgage shares of stock absolutely prohibits the stockholders from pledging or mortgaging their shares without the consent of the BOD, it would be violative of the statutory right of the stockholders to

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encumber shares of stock as allowed in Sec. 55. However, when the restriction merely allows the corporation or existing stockholders to accept the offer within the option period, and thereafter, if no one accepts the offer, the stockholder is free to pledge or mortgage his shares in favor of any 3rd party, such provision is reasonable, valid and binding. By the strict application of Sec. 63 of the Corporation Code to cover only the sale, assignment or absolute disposition of shares of stock, the SC has placed a bias against voluntary sales, assignments or dispositions of shares of stock vis-à-vis pledges, mortgages, attachment or levy thereof. To be valid and binding on third parties, the voluntary sale, assignment or disposition of shares requires the essential element of registration in the stock and transfer book; otherwise the sale, assignment or disposition is considered void as to third parties, even when they have actual notice. Whereas, when it comes to pledge, mortgage, encumbrance, attachment or levy of shares, registration thereof in the stock and transfer book is not essential either for validity or as a species of notifying third parties. [Villanueva].

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X. Dissolution and Liquidation Dissolution of a corporation is the extinguishment of its franchise and the termination of its corporate existence or business purpose. However, for the purpose only of winding up its affairs and liquidating its assets, its corporate existence continues for a period of 3 years from such dissolution [Sec. 122]. Upon dissolution, the corporation ceases to be a juridical person and consequently can no longer continue transacting its business [Campos]. Note: If no dissolution papers are filed with the SEC by a corporation claiming dissolution voluntarily, such corporation is still deemed legally existing, notwithstanding the fact that it has ceased to operate. [De Leon]

A. MODES OF DISSOLUTION Based on jurisprudence, the methods of effecting dissolution as prescribed by law are exclusive, and a corporation cannot be dissolved except in the manner prescribed by law. [De Leon] A.1. VOLUNTARY I. W HERE NO CREDITORS AFFECTED [SEC. 118]

ARE

•

Notice of the meeting should be given to the stockholders or members by personal delivery or registered mail at least 30 days prior to the meeting.

•

The notice of meeting should also be published for 3 consecutive weeks in a newspaper published in the place where the principal office of said corporation is located. If no newspaper is published in such place, then in a newspaper of general circulation in the Philippines.

•

The resolution to dissolve must be approved by the majority of the BOD/BOT

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and approved by the stockholders representing at least 2/3 of the Outstanding Capital Stock or 2/3 of members. o

Non-voting shares are entitled to vote in this matter [Sec. 6. Par 6(8)]

•

A copy of the resolution shall be certified by the majority of the BOD/BOT and countersigned by the secretary.

•

The signed and countersigned copy will be filed with the SEC and the latter will issue the certificate of dissolution.

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posting for 3 consecutive weeks in 3 public places is sufficient. •

A hearing shall be conducted 5 days after the lapse of the expiration of the time to file objections.

•

If the objections are insufficient or the material facts in the petition are true, judgment shall be rendered dissolving the corporation and directing the disposition of assets. The judgment may include appointment of a receiver. o

As long as 2/3 vote is obtained, no member/ stockholder can prevent such dissolution unless the majority stockholders acted in bad faith. The latter may be held liable for damages [Campos].

o

Even where there are creditors of the corporation who may be prejudiced by the dissolution, it is still possible for the corporation to terminate its existence prior to the expiration of its term, provided said creditors are given the opportunity to present their claims and objections so that their interests may be protected [Campos].

Note Thus, except for the expiration of its term, no dissolution can be effective without some act of the State. [Daguhoy Enterprises v. Ponce (1954)] II. W HERE CREDITORS AFFECTED [SEC. 119] •

•

•

ARE

A petition shall be filed with the SEC containing the following: o

signature by a majority of its BOD or BOT or other officers having management of its affairs;

o

verified by its president, or secretary or one of its director or trustees;

III. BY SHORTENING OF CORPORATE TERM

o

all claims and demands against the corporation; and

o

resolved upon by affirmative vote of the stockholders representing at least 2/3 of the Outstanding Capital Stock or 2/3 of members;

A voluntary dissolution may be effected by amending the Articles of Incorporation to shorten the corporate term; and upon approval of the expired shortened term, the corporation shall be deemed dissolved without any further proceedings.

If the petition is sufficient in form and substance, the SEC shall issue an order fixing the date on or before which objections to the petition may be filed. Such date shall not be less than 30 days nor more than 60 days after the entry of the order. A copy of the order shall be published at least once a week for 3 consecutive weeks in a newspaper of general circulation, or if there is no newspaper in the city or municipality of the principal office,

A publication of notice of dissolution is required and cannot be dispensed with by alleging that it was not required in Sec. 120 and that no creditors will be prejudiced by its dissolution. [SEC Opinion, August 30, 1988] SEC Opinion No. 06-20, Mar. 13, 2006: •

If the shortened term expires before the SEC approval à the corporation will be dissolved upon the SEC approval

•

If the shortened term expires after the SEC approval à the corporation will be dissolved upon the expiration of the shortened term

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•

If SEC fails to act within 6 months from filing of the amended Articles of Incorporation and shortened term expires after the 6-month period à the corporation will be dissolved upon the expiration of the shortened term.

•

•

If SEC fails to act within 6 months from filing of the amended Articles of Incorporation and shortened term expires before the 6-month period à the corporation will be dissolved at the end of the 6-month period. [Campos]

Failure to operate for at least 5 consecutive years after commencement of business ground for suspension or revocation of its corporate franchise or certificate of incorporation. Note: Dissolution in this case is not automatic. [Campos]

A.2. INVOLUNTARY I. BY EXPIRATION OF CORPORATE TERM Once the period expires, the corporation is automatically dissolved without any other proceeding and it cannot thereafter be considered a de facto corporation. II. FAILURE TO ORGANIZE AND COMMENCE BUSINESS W ITHIN 2 YEARS FROM INCORPORATION Failure to formally organize and commence the transaction of its business or construction of its works within 2 years - its corporate powers shall cease and the corporation shall be deemed dissolved [Sec. 22] •

Dissolution in this case is automatic [Campos].

•

Contrary view : Since there is a defense available to the corporation, that is, if its failure to organize and commence its business is due to causes beyond the control of the corporation as may be determined by the SEC, therefore, the dissolution is not automatic.

Transacting business implies a continuity of acts or dealings in the accomplishment of the purpose for which the corporation was formed. [Mentholatum v. Mangaliman (1946)] Formal organization includes not only adoption of the by-laws but also establishment of the body which administer the affairs of the corporation exercise its powers

By-laws should be adopted within one month of receipt of official notice of the issuance of the certificate of incorporation, otherwise the certificate may be suspended or revoked [PD 902-A, Sec. 6 (i)(5)]

the the will and

The corporation may show that the failure to commence its business or to continuously operate is due to causes beyond its control [Sec. 22] III. LEGISLATIVE DISSOLUTION The inherent power of Congress to make laws carries with it the power to amend or repeal them. Involuntary corporate dissolution may be effected through the amendment or repeal of the Corporation Code. [implied from Sec. 145, De Leon] The limitations on the power to dissolve corporations by legislative enactment are as follows: (1) Under the Constitution, the amendment, alteration, or repeal of the corporate franchise of a public utility shall be made only “when the common good so requires”; (2) Under Sec. 145 of the Code, it is provided that: “No right or remedy in favor of or against any corporation, its stockholders, members, directors, trustees, or officers, nor any liability incurred by any such corporation, stockholders, members, directors, trustees, or officers, shall be removed or impaired either by the subsequent dissolution of said corporation or by any subsequent amendment or repeal of this Code or of any part thereof”; (3) While Congress may provide for the dissolution of a corporation, it cannot

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impair the obligation of existing contracts between the corporation and third persons, or take away the vested rights of its creditors. [De Leon] IV. DISSOLUTION BY THE SEC ON GROUNDS UNDER EXISTING LAW S A corporation may be dissolved by the SEC, upon a verified complaint and after proper notice and hearing, on the following grounds [Sec. 6, par. i, PD 902-A]: (1) Fraud in procuring its certificate of registration (2) Serious misrepresentation as to what the corporation can or is doing to the great prejudice of or damage to the general public (3) Refusal to comply or defiance of any lawful order of the Commission restraining commission of acts which would amount to a grave violation of its franchise (4) Continuous inoperation for a period of at least five years (5) Failure to file by-laws within the required period (6) Failure to file required reports in appropriate forms as determined by the Commission within the prescribed period (7) Other grounds Other grounds: (a) Violation by the corporation of any provision of the Corporation Code [Sec. 144 BP 68] (b) In case of a deadlock in a close corporation, and the SEC deems it proper to order the dissolution of the corporation as the only practical solution to the dispute (Sec. 104 BP 68)

MERCANTILE LAW

B. METHODS OF LIQUIDATION Liquidation is the process by which all the assets of the corporation are converted into liquid assets (cash) in order to facilitate the payment of obligations to creditors, and the remaining balance if any is to be distributed to the stockholders. It is a proceeding in rem. B.1. BY THE CORPORATION ITSELF Under Sec. 122 of the Corporation Code, a corporation whose corporate existence is terminated in any manner continues to be a body corporate for 3 years after its dissolution for purposes of prosecuting and defending suits by and against it and to enable it to settle and close its affairs, culminating in the disposition and distribution of its remaining assets. It may, during the 3-year term, appoint a trustee or a receiver who may act beyond that period. The termination of the life of a corporate entity does not by itself cause the extinction or diminution of the rights and liabilities of such entity. If the 3-year extended life has expired without a trustee or receiver having been expressly designated by the corporation, within that period, the BOD (or trustees) itself, may be permitted to so continue as "trustees" by legal implication to complete the corporate liquidation. [Pepsi-Cola Products Philippines, Inc. v. CA (2004)] A corporation under liquidation may not amend its articles of incorporation to extend its lifespan. When a corporation is liquidating pursuant to the statutory period of 3 years to liquidate, it is only allowed to continue for the purpose of final closure of its business and no other purposes. In fact, within that period, the corporation is enjoined from “continuing the business for which it was established.” [Alhambra Cigar and Cigarette Mfg. v. SEC (1968)] B.2. CONVEYANCE TO A TRUSTEE WITHIN A 3-YEAR PERIOD In this method, the 3-year limitation does not apply, provided that the designation of the trustees is made within the period.

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General rule

B.4. LIQUIDATION AFTER THREE YEARS

There is no time limit within which the trustee must finish the liquidation, and he may sue and be sued as such even beyond the 3-year period.

Q: What is the difference Liquidation and Rehabilitation?

Exception The trusteeship is limited in its duration by the deed of trust. Trustees to whom the corporate assets have been conveyed pursuant to liquidation may sue and be sued as such in all matters connected with the liquidation. [National Abaca v. Pore (1961)] The trustee of a dissolved corporation may commence a suit which can proceed to final judgment even beyond the 3-year period of liquidation. No reason can be conceived why a suit already commenced by the corporation itself during its existence, not by a mere trustee who, by fiction, merely continues the legal personality of the dissolved corporation, should not be accorded similar treatment — to proceed to final judgment and execution thereof. [Reburiano v. CA (1999)] Unless the trusteeship is limited in its duration by the deed of trust, there is no time limit within which the trustee must finish liquidation. [Board of Liquidators v Kalaw (1967)] B.3. BY MANAGEMENT COMMITTEE OR REHABILITATION RECEIVER In SEC’s judgment dissolving the corporation and directing disposition of its assets as justice requires, it may appoint a receiver to collect such assets and pay the debts of the corporation [Sec. 119]. The mere appointment of a receiver, without anything more, does not result in the dissolution of the corporation nor bar it from the exercise of its corporate rights. [Leyte Asphalt and Mineral Oil Co. Ltd., v. Block Johnston and Breenbrawn (1928)]

between

A: Liquidation is the winding up of a corporation so that assets are distributed to those entitled to receive them. It is the process of reducing assets to cash, discharging liabilities and dividing surplus or loss. On the other hand, rehabilitation contemplates a continuance of corporate life and activities in an effort to restore and reinstate the corporation to its former position of successful operation and solvency. Both cannot be undertaken at the same time. [Phil. Veterans Bank v. Employees Union (2001)] If full liquidation can only be effected after the 3-year period and there is no trustee, the directors may be permitted to complete the liquidation by continuing as trustees by legal implication. [Reburiano v CA (1999)] A corporation’s BOD is not rendered functus officio by its dissolution. Since Sec. 122 allows a corporation to continue its existence for a limited purpose, necessarily there must be a board that will continue acting for and on behalf of the dissolved corporation for that purpose. [Aguirre vs. FQB+, Inc. (2013)] The trustee of a corporation may continue to prosecute a case commenced by the corporation within 3 years from its dissolution until rendition of the final judgment, even if such judgment is rendered beyond the 3-year period allowed by Sec. 122 of the Corporation Code. However, an already defunct corporation is barred from initiating a suit after the lapse of the said 3-year period. If a petition is filed after the corporate existence, the effect is that petitioner lacks the capacity to sue as a corporation. To allow such petition to prosper, on the ground that it is for the sole purpose of liquidating the corporation’s assets, would be to circumvent the provisions of Sec. 122 of the Corporation Code. [Alabang Development Corporation v. Alabang Hills Village Association and Rafael Tinio (2014)]

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XI. Other Corporations

Also note that, even after satisfying the 3 mandatory provisions, a corporation shall not be deemed a close corporation when at least 2/3 of its voting stock or voting rights is owned or controlled by another corporation which is not a close corporation within the meaning of this Code.

A. CLOSE CORPORATIONS General concept: Most characteristic feature is the identity of stock ownership and active management, i.e., all or most of the stockholders are active in the corporate business either as directors, officers or other key men in management [Campos] Statutory definition: [Sec. 96] A close corporation is one whose articles of incorporation provide that:

A narrow distribution of ownership does not, by itself, make a close corporation. When a corporation’s Articles of Incorporation does not contain the provisions enumerated under Sec. 96 of the Code, such corporation is not a “close corporation”. It does not become one either, just because only a few individuals owned 99.866% of its subscribed capital stock. [San Juan Structural and Steel Fabricators v. CA (1998)]

(1) All the corporation's issued stock of all classes, exclusive of treasury shares, shall be held of record by not more than a specified number of persons, not exceeding 20;

General Rule

(2) All the issued stock of all classes shall be subject to one or more specified restrictions on transfer permitted by this Title; and

Exception

(3) The corporation shall not list in any stock exchange or make any public offering of any of its stock of any class. General Rule: Any corporation incorporate as a close corporation

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may

Exceptions: mining or oil companies, stock exchanges, banks, insurance companies, public utilities, educational institutions and corporations declared to be vested with public interest Notes Under Sec. 96, the 3 provisions MUST appear in the Articles of Incorporation, otherwise, a corporation is not considered as a close corporation. [San Juan Structural and Steel Fabricators v CA (1998)]

Free transferability of shares - Shares of stock so issued are personal property and may be transferred In close corporations: Restriction on transfer provided in Articles of Incorporation Lim it: Restriction on the transfer must NOT be more onerous than granting the existing shareholders or corporation the option to purchase the shares (Right of First Refusal). Rationale: Considering the special circumstances attending a close corporation (e.g. formed by persons who know each other well, thus they would want to choose the persons who will be allowed in their group), it is justifiable and even imperative for its stockholders to protect themselves from future conflicts by placing restrictions on the right of each one of them to transfer his shares to an outsider. The stocks cannot be listed in the stock exchange nor be publicly offered.

However, do note that in the earlier case of Dulay v CA (1993), the court did not look at Sec. 96 in concluding that the corporation involved was a close corporation. PAGE 211 OF 320

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A.1. CHARACTERISTICS CORPORATION

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OF

A

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CLOSE

A.3. ISSUANCE OR TRANSFER OF STOCK IN BREACH OF QUALIFYING CONDITIONS

Direct m anagem ent by stockholders (Sec. 97):

If stock of a close corporation is issued or transferred to any person who is not entitled under any provision of the articles of incorporation to be a holder of record of its stock, and if the certificate for such stock conspicuously shows the qualifications of the persons entitled to be holders of record thereof, such person is conclusively presumed to have notice of the fact of his ineligibility to be a stockholder.

The stockholders themselves can directly manage the corporation and perform the functions of directors without need of election: (1) When they manage, stockholders are liable as directors; (2) There is no need to call a meeting to elect directors; (3) The stockholders active in the management of the close corporation are personally liable for corporate torts unless the corporation has obtained reasonably adequate liability insurance [Sec. 100(5)] Identity and number of stockholders (Sec. 96): (1) Stockholders of record not more than 20 (2) Stocks not publicly listed (3) Restricted transfer of ownership A.2. VALIDITY OF RESTRICTIONS ON TRANSFER OF SHARES Validity of Restrictions (Sec. 98) Restrictions must appear in the articles of incorporation and in the by-laws as well as in the certificate of stock; otherwise, the same shall not be binding on any purchaser thereof in good faith. Restrictions shall not be m ore onerous than granting the existing stockholders or the corporation the option to purchase the shares of the transferring stockholder with such reasonable terms, conditions or period stated therein. After expiration of said period and upon failure of the existing stockholders or the corporation to purchase said shares, the transferring stockholder may sell his shares to any third person.

If the articles of incorporation of a close corporation states the number of persons, not exceeding 20, who are entitled to be holders of record of its stock, and if the certificate for such stock conspicuously states such number, and if the issuance or transfer of stock to any person would cause the stock to be held by more than such number of persons, the person to whom such stock is issued or transferred is conclusively presumed to have notice of this fact. If a stock certificate of any close corporation conspicuously shows a restriction on transfer of stock of the corporation, the transferee of the stock is conclusively presum ed to have notice of the fact that he has acquired stock in violation of the restriction, if such acquisition violates the restriction. Whenever any person to whom stock of a close corporation has been issued or transferred has, or is conclusively presumed under this section to have, notice either (a) that he is a person not eligible to be a holder of stock of the corporation, or (b) that transfer of stock to him would cause the stock of the corporation to be held by more than the number of persons permitted by its articles of incorporation to hold stock of the corporation, or (c) that the transfer of stock is in violation of a restriction on transfer of stock, the corporation m ay, at its option, refuse to register the transfer of stock in the nam e of the transferee. The provisions of subsection (4) shall not be applicable if the transfer of stock, though contrary to subsections (1), (2) of (3), has been consented to by all the stockholders of the close corporation, or if the close corporation

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has amended its articles of incorporation in accordance with this Title.

A.4. WHEN BOARD MEETING IS UNNECESSARY OR IMPROPERLY HELD

The term "transfer", as used in this section, is not limited to a transfer for value.

W hen Unnecessary –

The provisions of this section shall not impair any right which the transferee may have to rescind the transfer or to recover under any applicable warranty, express or implied [Sec. 99] Sum m ary: •

•

CONCLUSIVE PRESUMPTION OF NOTICE: Restriction conspicuously shown in stock certificate o

that he is a person not eligible to be a holder of stock of the corporation

o

that transfer of stock to him would cause the stock of the corporation to be held by more than the number of persons permitted by its articles of incorporation to hold stock of the corporation

o

that the transfer of stock is in violation of a restriction on transfer of stock

EFFECTS OF PRESUMPTION:

CONCLUSIVE

o

General Rule: Corporation may, at its option, refuse to register the transfer of stock in the name of the transferee

o

Exceptions: refuse if

Corporation may not

Any action by the directors of a close corporation without a meeting shall nevertheless be deemed valid if: (1) Before or after such action is taken, written consent thereto is signed by all the directors; or (2) All the stockholders have actual or implied knowledge of the action and make no prompt objection thereto in writing; or (3) The directors are accustomed to take informal action with the express or implied acquiescence of all the stockholders; or (4) All the directors have express or implied knowledge of the action in question and none of them makes prompt objection thereto in writing [Sec. 101] Manuel R. Dulay Enterprises v. CA (1993): In a close corporation, a board resolution authorizing the sale or mortgage of the subject property is not necessary to bind the corporation for the action of its president. At any rate, corporate action taken at a board meeting without proper call or notice in a close corporation is deemed ratified by the absent director unless the latter promptly files his written objection with the secretary of the corporation after having knowledge of the meeting.

•

Transfer is consented to by all the stockholders

W hen Improperly Held

•

Articles of Incorporation has been amended to remove the restrictions

When a director’s meeting is held without proper call or notice, an action taken therein within the corporate powers is deemed ratified by a director who failed to attend. UNLESS he promptly files his written objection with the secretary of the corporation after having knowledge thereof [Sec. 101]

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A.5. PRE-EMPTIVE RIGHT

A.7. DEADLOCKS

The pre-emptive right of stockholders in close corporations shall extend to all stock to be issued, including reissuance of treasury shares, whether for money, property or personal services, or in payment of corporate debts, UNLESS the articles of incorporation provide otherwise [Sec. 102].

Requisites:

A.6. AMENDMENT INCORPORATION

OF

ARTICLES

OF

Amendment to the Articles of Incorporation which seeks to: (1) delete or remove any provision required to be contained in the Articles of Incorporation of Close Corporations (under the Title on Close Corporations); or (2) to reduce a quorum or voting requirement stated in said Articles of Incorporation Requires the affirmative vote of at least 2/3 of the outstanding capital stock, whether with or without voting rights, or of such greater proportion of shares as may be specifically provided in the Articles of Incorporation at a meeting duly called.

MERCANTILE LAW

(1) The directors or stockholders are so divided respecting the management of the corporation's business and affairs (2) The votes required for any corporate action cannot be obtained that the business and affairs of the corporation can no longer be conducted to the advantage of the stockholders generally Powers of the SEC in case of Deadlock in Close Corporations (1) Cancel or alter any provision in the articles of incorporation or by-laws (2) Cancel, alter or enjoin any resolution of the corporation (3) Direct or prohibit any act of the corporation (4) Require the purchase at their fair value of shares of any stockholder either by any stockholder or by the corporation regardless of the availability of unrestricted retained earnings. (5) Appoint a provisional director (6) Dissolve the corporation (7) Granting such other relief circumstances may warrant.

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as

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Close Corporations

MERCANTILE LAW

Regular Corporations 1. MANAGEMENT / BOARD AUTHORITY

There can be classification of directors into one or more classes, each of whom may be voted for and elected solely by a particular class of stock; and

There is no such classification as in the case of close corporations.

The articles of incorporation of a close corporation may provide that the business of the corporation shall be managed by the stockholders of the corporation rather than by a BOD. So long as this provision continues in effect:

Corporate Powers devolved upon BOD whose powers are executed by officers. Cannot provide that it be managed by stockholders

No meeting of stockholders need be called to elect directors.

BOD must be elected in a stockholders meeting Stockholders of a corporation are separate and distinct from directors

Unless the context clearly requires otherwise, the stockholders of the corporation shall be deemed to be directors for the purpose of applying the provisions of this Code. The stockholders of the corporation shall be subject to all liabilities of directors. The articles of incorporation may likewise provide that all officers or employees or that specified officers or employees shall be elected or appointed by the stockholders, instead of by the BOD.

Officers must be elected by the BOD

2. MEETINGS Unless the by-laws provide otherwise, any action by the directors of a close corporation without a meeting shall nevertheless be deemed valid if: (1) Before or after such action is taken, written consent thereto is signed by all the directors; or (2) All the stockholders have actual or implied knowledge of the action and make no prompt objection thereto in writing; or (3) The directors are accustomed to take informal action with the express or implied acquiescence of all the stockholders; or (4) All the directors have express or implied knowledge of the action in

The directors or trustees shall not act individually nor separately but as a body in a lawful meeting. They will act only after discussion and deliberation of matters before them. Contracts entered into without a formal board resolution does not bind the corporation except when ratified or when majority of the board has knowledge of the contract and the contract benefited the corporation. Absence of a prompt objection in writing does not ratify acts done by directors without a valid meeting. There must be express or implied ratification. Express ratification may consist of a Board Resolution to that effect Implied ratification may consist of acceptance of benefits from said unauthorized act while having knowledge of said act Failure to give notice would render a meeting voidable. Attendance to a meeting despite want of notice will be PAGE 215 OF 320

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question and none of them makes prompt objection thereto in writing. If a director's meeting is held without proper call or notice, an action taken therein within the corporate powers is deemed ratified by a director who failed to attend, unless he promptly files his written objection with the secretary of the corporation after having knowledge thereof.

MERCANTILE LAW

deemed implied waiver All proceedings had and any business transacted at any meeting of the stockholders or members, if within the powers or authority of the corporation, shall be valid even if the meeting be improperly held or called, provided all the stockholders or members of the corporation are present or duly represented at the meeting. (Sec. 51)

3. VOTING/ QUORUM The Articles of Incorporation may provide for a classification of directors into one or more classes, each of which may be voted for and elected solely by a particular class of stock.

No share may be deprived of voting rights, except Preferred or Redeemable shares, unless otherwise provided by the Code There shall always be a class/series of shares which have COMPLETE VOTING RIGHTS EACH SHARE SHALL BE EQUAL IN ALL RESPECTS TO EVERY OTHER SHARE, except as otherwise provided in the Articles of Incorporation

The Articles of Incorporation may provide for a greater quorum or voting requirements in meetings of stockholders or directors than those provided in this Code.

For BOD, the by-laws or Articles of Incorporation can provide for a greater majority in quorum For stockholders, the Articles of Incorporation can provide for a different percentage in quorum

4. PRE-EMPTIVE RIGHT The pre-emptive right of stockholders in close corporations shall extend to all stock to be issued, including reissuance of treasury shares, whether for money, property or personal services, or in payment of corporate debts, unless the articles of incorporation provide otherwise.

Limitations on the exercise of pre-emptive right: Such pre-emptive right shall not extend to shares to be issued in compliance with laws requiring stock offerings or minimum stock ownership by the public; Not extend to shares to be issued in good faith with the approval of the stockholders representing 2/3 of the outstanding capital stock, in exchange for property needed for corporate purposes or in payment of a previously contracted debt Shall not take effect if denied in the Articles of Incorporation or an amendment thereto.

5. TRANSFERABILITY Restrictions on the right to transfer shares must appear in the Articles of Incorporation and in the by-laws as well as in the certificate of stock otherwise the same shall not be binding on any purchaser thereof in good faith

Restrictions on the right to transfer not allowed

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6. APPRAISAL RIGHT Any stockholder of a close corporation may, for any reason, compel the said corporation to purchase his shares at their fair value, which shall not be less than their par or issued value, when the corporation has sufficient assets in its books to cover its debts and liabilities exclusive of capital stock

Stockholders may require the corporation to buy-back their shares at fair value when the Corporation has Unrestricted Retained Earnings: (a) In case of any amendment to the articles of incorporation which has the effect of:

Any stockholder of a close corporation may, by written petition to the SEC, compel the dissolution of such corporation whenever: (a) Any of acts of the directors, officers or those in control of the corporation is illegal, or fraudulent, or dishonest, or oppressive or unfairly prejudicial to the corporation or any stockholder, or Corporate assets are being misapplied or wasted.

(i)

changing or restricting the rights of any stockholder or class of shares, or

(ii)

authorizing preferences in any respect superior to those of outstanding shares of any class, or

(iii)

extending or shortening the term of corporate existence

(b) In case of sale, lease, exchange, transfer, mortgage, pledge or other disposition of all or substantially all of the corporate property and assets as provided in the Code; and (c) In case of merger or consolidation (d) Investment of corporate funds in another corporation or business (e) Diversion of funds of corporation from primary purpose to secondary purpose (Sec. 41) The corporation may buy-back shares of stockholders subject to the following limitations (Treasury shares): There must be unrestricted retained earnings Must be for a legitimate purpose

B. NON-STOCK CORPORATIONS Stock Corporations

Non-Stock Corporations DEFINITION

Corporations which have capital stock divided into shares and are authorized to distribute to the holders of shares dividends or allotments of the surplus profits on the basis of the shares (Sec. 3)

All other private corporations (Sec. 3) One where no part of its income is distributable as dividends to its members, trustees or officers. (Sec. 87)

PURPOSE Primarily to make profits for its shareholders

May be formed or organized for charitable, religious, educational, professional, cultural, fraternal, literary, scientific, social, civic service, or similar purposes like trade, industry, agricultural and like chambers, or any combination thereof. (Sec. 88) PAGE 217 OF 320

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Stock Corporations

MERCANTILE LAW

Non-Stock Corporations DISTRIBUTION OF PROFITS

Profit is distributed to shareholders

Whatever incidental profit made is not distributed among its members but is used for furtherance of its purpose. AOI or by-laws may provide for the distribution of its assets among its members upon its dissolution. Before then, no profit may be made by members. (Sec. 87) SCOPE OF VOTING RIGHTS

Each stockholder votes according to the proportion of his shares in the corporation. No shares may be deprived of voting rights except those classified and issued as "preferred" or "redeemable" shares, and as otherwise provided by the Code. (Sec. 6)

Each member, regardless of class, is entitled to one (1) vote UNLESS such right to vote has been limited, broadened, or denied in the AOI or by-laws. (Sec. 89)

VOTING BY PROXY Cannot be denied. (Sec. 58)

May be denied by the AOI or the by-laws. (Sec. 89) W HO EXERCISES CORPORATE POW ER

Board of Directors or Trustees, consisting of 515 directors / trustees. (Sec. 23, 92)

Board of Trustees, which may consist of more than 15 trustees unless otherwise provided by the AOI or bylaws. (Sec. 23, 92)

TERM OF DIRECTORS OF TRUSTEES Directors / trustees shall hold office for 1 year and until their successors are elected and qualified (Sec. 23).

Board classified in such a way that the term of office of 1/3 of their number shall expire every year. Subsequent elections of trustees comprising 1/3 of the board shall be held annually, and trustees so elected shall have a term of 3 years. (Sec. 92)

ELECTION OF OFFICERS Officers are elected by the Board of Directors (Sec. 25), except in close corporations where the stockholders themselves may elect the officers. (Sec. 97)

Officers may directly elected by the members UNLESS the AOI or by-laws provide otherwise. (Sec. 92)

TRANSFERABILITY OF INTEREST OR MEMBERSHIP Transferable.

Generally non-transferable since membership and all rights arising therefrom are personal. However, the AOI or by-laws can provide otherwise. (Sec. 90)

B.1. DEFINITION One where no part of its income is distributable as dividends to its members, trustees, or officers, subject to the provisions of this Code on dissolution. [Sec.87]

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B.2. PURPOSES

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(4) All other assets shall be distributed to members, as provided in the Articles of Incorporation or by-laws [Sec. 94]

•

Charitable

•

Religious

•

Educational

•

Professional

•

Cultural

•

Fraternal

•

Literary

•

Scientific

•

Social

•

Civic services

•

Similar purposes, such trade, industry or agriculture and like chambers, or combinations thereof [Sec. 88]

Procedure Distribution

for

the

Plan

for

BOT, by majority vote in a resolution, shall adopt a plan for distribution of the assets of the corporation Written notice for a meeting must be sent to all members entitled to vote, stating the time and place of such meeting and the purpose thereof At such meeting, the plan must be approved by 2/3 votes of the members having the right to vote, who are present or represented by proxy [Sec. 95; Villanueva]

C. RELIGIOUS CORPORATIONS

B.3. TREATMENT OF PROFITS Any profit which a non-stock corporation may obtain as an incident to its operations shall, whenever necessary or proper, be used for the furtherance of the purpose or purposes for which the corporation was organized. [Sec. 87,2nd sentence] B.4. DISTRIBUTION OF ASSETS UPON DISSOLUTION Order of distribution of assets upon dissolution of non-stock corporation (1) All liabilities and obligations of the corporation shall be paid, satisfied and discharged, or adequate provision shall be made therefore (2) Assets held subject to return on dissolution shall be delivered back to the givers. (3) Assets held for charitable, religious purposes, etc., without a condition for their return on dissolution, shall be conveyed to one or more organizations engaged in similar activities as dissolved corporation

C.1. CORPORATION SOLE (SEC. 110) One formed for the purpose of administering and managing, as trustee, the affairs, property and temporalities of any religious denomination, sect or church by the chief archbishop, bishop, priest, minister, rabbi or other presiding elder of such religious denomination, sect or church. [Sec. 110] A special form of corporation, usually associated with clergy and consists of one person only and his successors, who are incorporated by law to give some legal capacities and advantages. A registered corporation sole can acquire land if its members constitute at least 60% Filipinos [SEC Opinion, 8 August 1994]. NATIONALITY A corporation sole does not have any nationality but for purposes of applying our nationalization laws, nationality is determined by the nationality of the members. [Roman Catholic Apostolic Church v. Land Registration Commission (1957)]

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C.2. RELIGIOUS SOCIETIES

of the corporation from “sole” or one to the greater number authorized by its amended articles. [Iglesia Evangelica Metodista En Las Filipinas (Corporation Sole) Inc., et al v. Bishop Nathanael Lazaro, et al (2010)]

Non-stock corporation formed by a religious society, group, diocese, synod, or district of any religious denomination, sect, or church after getting the approval of 2/3 of its members. [Sec. 116] The Corporation Code provides no specific mechanism for amending the articles of incorporation of a corporation sole. But Sec. 109 allows the application to religious corporations of the general provisions governing non-stock corporations. •

For non-stock corporations, the power to amend its Articles of Incorporation lies in its members. The code requires twothirds of their votes for the approval of such an amendment. So how will this requirement apply to a corporation sole that has technically but one member (the head of the religious organization) who holds in his hands its broad corporate powers over the properties, rights, and interests of his religious organization?

•

Although a non-stock corporation has a personality that is distinct from those of its members who established it, its Articles of Incorporation cannot be amended solely through the action of its BOT. The amendment needs the concurrence of at least two-thirds of its membership. If such approval m echanism is m ade to operate in a corporation sole, its one m em ber in whom all the powers of the corporation technically belongs, needs to get the concurrence of two-thirds of its m em bership. The one member is but a trustee of its membership.

•

There is no point to dissolving the corporation sole of one member to enable the corporation aggregate to emerge from it. The one member, with the concurrence of two-thirds of the membership of the organization for whom he acts as trustee, can selfwill the amendment. He can, with membership concurrence, increase the technical number of the members

MERCANTILE LAW

D. FOREIGN CORPORATIONS Foreign Corporation are those formed, organized, or existing under any laws other than those of the Philippines and whose laws allow Filipino citizens and corporations to do business in its own country or state [Sec. 123] D.1. BASES OF AUTHORITY OVER FOREIGN CORPORATIONS I. CONSENT As a rule, a foreign corporation can have no legal existence or status beyond the bounds of the State or sovereignty by which it is created or incorporated and organized. It exists only in contemplation of law and by force of the law and where that law ceases to operate, the corporation can have no existence. This principle, however, does not prevent a corporation from acting in another State or country with the latter’s express or implied consent. This is the “consent doctrine” which is provided in Sections 125 and 126. But every power which a corporation exercises as such in another State depends for its validity upon the laws of the sovereignty in which it is exercised. A corporation can exercise none of the functions and privileges conferred by its charter in another State or country except by the comity and consent of such State or country. [De Leon] II. DOCTRINE OF “DOING BUSINESS” (RELATE TO DEFINITION UNDER THE FOREIGN INVESTMENTS ACT, R.A. NO. 7042) Jurisprudential Tests Of “Doing Business In The Philippines” (Asked in ‘98 and ‘02)

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1. Twin Characterization Test •

•

Under the Continuity Test, doing business implies a continuity of commercial dealings and arrangements, or performance of acts normally incidental to the purpose and object of the organization. Under the Substance Test, a foreign corporation is doing business in the country if it is continuing the body or substance of the enterprise of business for which it was organized [Mentholatum v. Mangaliman (1941)]

MERCANTILE LAW

It relates to “business activities… not only casual, but so systematic and regular as to manifest continuity and permanence of activity to constitute doing business here…” To constitute doing business in the Philippines, the activity should involve profitmaking. [Cargill v. Intra-Strata Assurance Corporation (2010)] It is the performance by a foreign corporation of the acts for which it was created, regardless of volume of business, that determines whether a foreign corporation needs a license or not. [European Resources and Technologies Inc. v. Ingenieuburo Birkhanh + Nolte (2004)]

2. Contract Test

Not Doing Business

A foreign corporation is doing business in the Philippines if the contracts entered into by the foreign corporation or by an agent acting under the control and direction of the foreign corporation are consummated in the Philippines. [Pacific Vegetable Oil v. Singson (1955)]

A. Statutory: Sec. 3(d) FIA and Sec. 1 FIA IRR

Statutory Definition Of “Doing Business”: Foreign Investm ent Act Of 1991 [Sec. 3(D), Ra 7042] (Asked in ‘98 and ‘02) Doing Business • •

•

•

Soliciting orders, service contracts, or opening offices; Appointing representatives, distributors domiciled in the Philippines or who stay for a period or periods totaling 180 days or more; Participating in the management, supervision, or control of any domestic business, firm, entity, or corporation in the Philippines; Any act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to some extent the performance of acts or works or the exercise of some functions, normally incident to and in progressive prosecution of the purpose and object of its organization.

•

Mere investment as shareholder and exercise of rights as investor;

•

Having a nominee director or officer to represent its interest in the corporation;

•

Appointing a representative or distributor which transacts business in its own name and for its own account;

•

The publication of a general advertisement through any print or broadcast media

•

Maintaining a stock of goods in the PH solely for the purpose of having the same processed by another entity in the PH

•

Consignment by a foreign entity of equipment with a local company to be used in the processing of products for export

•

Collecting information in the Philippines

•

Performing services auxiliary to an existing isolated contract of sale which are not on a continuing basis, such as installing in the Philippines machinery it has manufactured or exported to the Philippines, servicing the same, training domestic workers to operate it, and similar incidental services

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B. Jurisprudential •

Agilent’s activities were confined to maintaining a stock of goods in the PH and consignment of equipmen. [Agilent v Integrated Silicon (2004)]

•

The imposition of minimum standards concerning sales, marketing, finance and operations is nothing more than an exercise of sound business practice to increase sales and maximize profits. For as long as these requirements do not impinge on a distributor’s independence, then there is nothing wrong with placing reasonable expectations. [Steelcase v Design Int’l (2010)]

•

Multiple transactions are still considered a single transaction where there are constantly failed attempts in complying with the contract by one of the contracting parties. [Antam Consolidated v CA (1986)]

•

A foreign firm which does business through middlemen acting on their own names shall not be deemed doing business in the Philippines. [Le Chemise Lacoste v Fernandez (1984)]

D.2. NECESSITY OF A LICENSE TO DO BUSINESS I. REQUISITES FOR ISSUANCE OF A LICENSE The foreign corporation should file a copy of its articles of incorporation and by-laws, and a verified application (See Sec. 125) accompanied by the following: (1) Name and address of its designated resident agent who will receive summons and notices for the corporation; a special power of attorney should also be submitted for such purpose (2) An agreement that if it ceases to transact business or if there is no more resident agent, summons shall then be served through the SEC (3) Oath of Reciprocity stating that the foreign corporation’s country allows Filipino citizens and corporations to do business in said country

MERCANTILE LAW

Within 60 days from issuance of license, the corporation should deposit at least P100,000 (cash, property, bond) for the benefit of creditors subject to further deposit every six months [See Sec. 126] II. RATIONALE REQUIREMENT: JURISDICTION

FOR THE LICENSE ACQUISITION OF

The purpose of the law in requiring that foreign corporations doing business in the country be licensed to do so, is to subject the foreign corporations doing business in the Philippines to the jurisdiction of the courts, otherwise, a foreign corporation illegally doing business here because of its refusal or neglect to obtain the required license and authority to do business may successfully though unfairly plead such neglect or illegal act so as to avoid service and thereby impugn the jurisdiction of the local courts. The same danger does not exist among foreign corporations that are indubitably not doing business in the Philippines. Indeed, if a foreign corporation does not do business here, there would be no reason for it to be subject to the State’s regulation [Avon Insurance PLC v. CA (1997)]. III. RESIDENT AGENT A resident Agent may be an individual, who must be of good moral character and of sound financial standing, residing in the Philippines, or a domestic corporation lawfully transacting business in the Philippines, designated in a written power of attorney by a foreign corporation authorized to do business in the Philippines, on whom any summons and other legal processes may be served in all actions or other legal proceedings against the foreign corporation [Sec. 127-128] D.3. PERSONALITY TO SUE A foreign corporation transacting business in the Philippines is required to secure a license to have the personality to sue before, or

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intervene in, any court or administrative proceeding. [Campos; Sec. 133] D.4. SUABILITY CORPORATIONS

OF

Status

Indeed if a foreign corporation, not engaged in business in the Philippines, is not barred from seeking redress from courts in the Philippines, a fortiori, that same corporation cannot claim exemption from being sued in Philippine courts for acts done against a person or persons in the Philippines. [Facilities Management Corporation v. De La Osa (1979)]

NOT doing business May sue, and may be in the PH, on isolated sued transactions

D.6. GROUNDS FOR REVOCATION OF LICENSE I. UNDER THE CORPORATION CODE •

Failure to file its annual report or pay any fees as required by this Code;

•

Failure to appoint and maintain a resident agent in the Philippines as required by this Title;

•

Failure, after change of its resident agent or of his address, to submit to the Securities and Exchange Commission a statement of such change as required by this Title;

•

Failure to submit to the Securities and Exchange Commission an authenticated copy of any amendment to its articles of incorporation or by laws or of any articles of merger or consolidation within the time prescribed by this Title;

•

A misrepresentation of any material matter in any application, report, affidavit or other document submitted by such corporation pursuant to this Title;

•

Failure to pay any and all taxes, imposts, assessments or penalties, if any, lawfully due to the Philippine Government or any of its agencies or political subdivisions;

•

Transacting business in the Philippines outside of the purpose or purposes for which such corporation is authorized under its license;

•

Transacting business in the Philippines as agent of or acting for and in behalf of any foreign corporation or entity not duly licensed to do business in the Philippines; or

D.5. INSTANCES WHEN UNLICENSED FOREIGN CORPORATIONS MAY BE ALLOWED TO SUE • •

When the corporation is considered “not doing business” in the PH When the Philippine citizen or entity is estopped from challenging the foreign corporation’s personality to sue [Merrill Lynch Futures v. Court of Appeals (1992)]

Sum m ary of Rules on Capacity to Sue [Agilent Technologies Singapore v. Integrated Silicon Technologies (2004)]: Status

Consequence

Doing Business in the PH, WITH a license

Can sue and be sued

Doing Business in the PH, WITHOUT a license

GR: Cannot sue, but may be sued in the PH

Consequence to sue may not be questioned if the other party is estopped

FOREIGN

No foreign corporation transacting business in the Philippines without a license, or its successors or assigns, shall be permitted to maintain or intervene in any action, suit or proceeding in any court or administrative agency of the Philippines; but such corporation m ay be sued or proceeded against before Philippine courts or administrative tribunals on any valid cause of action recognized under Philippine laws. [Sec 133]

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Any other ground as would render it unfit to transact business in the Philippines (Sec. 134)

D.6.B. UNDER SPECIAL LAWS

MERCANTILE LAW

XVII. Mergers and Consolidations A. DEFINITION AND CONCEPT

I. INSURANCE CODE The Insurance Commissioner is authorized to suspend or revoke all certificates of authority granted to an insurance company, whether domestic or foreign, when: (1) it is in unsound condition; or (2) it has failed to comply with the provisions of law or regulations obligatory upon it; or (3) its condition or method of business is such as to render its proceedings hazardous to the public or to its policyholders; or (4) its paid-up capital stock, in the case of a foreign company, is impaired or deficient, or that the margin of solvency required of such company is deficient [Sec. 247, Insurance Code]

II. GENERAL BANKING ACT The Monetary Board may revoke the license to transact business in the Philippines of any foreign bank, if it finds that: (1) the foreign bank is insolvent; or

Merger – a corporation absorbs the other and remains in existence while the others are dissolved. [Sec.76] One of the constituent corporations remains as an existing juridical person, whereas the other corporation shall cease to exist. Merger is the disappearance of one of the corporations [generally by amending the articles of incorporation and shortening its term of existence (Sec.40)] with the other corporation acquiring all the assets, rights of action, and assuming all the liabilities of the disappearing corporation. Consolidation – a new corporation is created, and consolidating corporations are extinguished [Sec.76] If there is consolidation, there will be disappearance of all constituent corporations with the emergence of a new corporate entity which shall obtain all the assets of the disappearing corporations, and likewise shall assume all their liabilities.

B. CONSTITUENT VS. CONSOLIDATED CORPORATION

(2) in imminent danger thereof; or (3) its continuance in business will involve probable loss to those transacting business with it. [Sec. 78, GBA]

Constituent Corporations – the parties to a merger or consolidation Consolidated Corporation - The new single corporation created through consolidation. Surviving Corporation – one of the constituent corporations which remain in existence after the merger

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C. PLAN OF MERGER OR CONSOLIDATION [SEC. 76]

MERCANTILE LAW

E. PROCEDURE

Each of the constituent corporations must draw up a Plan of Merger or Consolidation which shall set forth: (1) Names of the corporation involved; (2) Terms and mode of carrying it; (3) Statement of changes, if any, in the present articles of the surviving corporation to be formed in the case of merger; and with respect to the consolidated corporation in case of consolidation

D. ARTICLES OF MERGER OR CONSOLIDATION Each of the constituent corporation shall execute Articles of Merger or Consolidation signed by the president/vice-president, and certified by the secretary/assistant secretary setting forth: (1) Plan of merger or consolidation; (2) For stock corporation, the number of shares outstanding; for non-stock, the number of members; (3) As to each corporation, number of shares or members voting for and against such plan respectively. The Articles of Merger or Consolidation: (1) take the place of the Articles of Incorporation of the consolidated corporation; or (2) amend the Articles of Incorporation of the surviving corporation.

E.1. APPROVAL OF PLAN OF MERGER OR CONSOLIDATION BY BOD AND STOCKHOLDERS OF CONSTITUENT CORPORATIONS Approval by majority vote of each of the board of directors or trustees of the constituent corporations of the plan of merger or consolidation. Approval by the stockholders or members of each of such corporations. The affirmative vote of stockholders representing at least two-thirds (2/3) of the outstanding capital stock of each corporation in the case of stock corporations or at least two-thirds (2/3) of the members in the case of non-stock corporations shall be necessary for the approval of such plan. Holders of non-voting shares are entitled to vote on the plan. (Sec. 6, par. 6(6)) Notice of such meetings shall be given to all stockholders or members of the respective corporations, at least 2 weeks prior to the date of the meeting, either personally or by registered mail. Said notice shall state the purpose of the meeting and shall include a copy or a summary of the plan of merger or consolidation. Any dissenting stockholder in stock corporations may exercise his appraisal right in accordance with the Code. Provided, that if after the approval by the stockholders of such plan, the board of directors decides to abandon the plan, the appraisal right shall be extinguished. Amendment to the plan of merger or consolidation may be made by approval of the majority vote of the respective boards of directors or trustees of all the constituent corporations and ratified by the affirmative vote of stockholders representing at least two-thirds (2/3) of the outstanding capital stock or of two-thirds (2/3) of the members of each of the constituent corporations. Such plan, together with any amendment, shall be considered as the agreement of merger or consolidation.

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E.2. EXECUTION OF ARTICLES OF MERGER OR CONSOLIDATION Articles of Merger or Articles of Consolidation shall be executed by each of the constituent corporations. E.3. SUBMISSION TO SEC OF ARTICLES Submission of Four (4) copies of the Articles of Merger or Articles of Consolidation to the SEC for approval. •

Mergers and consolidations of corporations governed by special laws requires a recommendation from the appropriate government agency (Sec. 79 (1))

E.4. ACTION BY SEC Conduct hearing or issue certificate If necessary, the SEC shall set a hearing, notifying all corporations concerned at least 2 weeks before. Issuance of certificate consolidation.

of

merger

or

MERCANTILE LAW

In the case of merger or consolidation of banks or banking institutions, building and loan associations, trust companies, insurance companies, public utilities, educational institutions and other special corporations governed by special laws, the favorable recommendation of the appropriate government agency shall first be obtained

H. EFFECTS (SEC. 80) H.1. AS TO CORPORATIONS:

THE

CONSTITUENT

I. CORPORATE EXISTENCE The constituent corporations shall become a single corporation. The separate existence of the constituents shall cease, except that of the surviving or the consolidated corporation. The absorbed or constituent corporations are ipso facto dissolved by operation of law [SEC Opinion, July 16, 1981] II. ASSETS AND LIABILITIES There is no liquidation of the assets of the dissolved corporations [Campos].

F. EFFECTIVITY Upon issuance of the certificate of merger or consolidation, such merger or consolidation shall become effective [Sec. 79]. Merger or consolidation does not become effective by mere agreement of the constituent corporations. The approval of the SEC is required. [PNB v. Andrada Electric and Engr. Co., Inc. (2002)] Notwithstanding Sec. 79, parties may stipulate a specific effective date of merger (or consolidation) where no 3rd party will be prejudiced [SEC Opinion No. 09-13, July 1, 2009]

G. LIMITATIONS CONSENT OF APPROPRIATE GOVERNMENT AGENCY [SEC. 79]

The surviving or the consolidated corporation shall possess all the rights, privileges, immunities, powers, and franchises of each constituent corporation and the properties shall be deemed transferred to and vested in the surviving or consolidated corporation without further act or deed The surviving or the consolidated corporation shall be subject to all the duties and liabilities of the dissolving corporation(s). H.2. AS TO CREDITORS Any claim, action or proceeding pending by or against any of the constituent corporations may be prosecuted by or against the surviving or consolidated corporation; and The rights of the creditors or lien upon the property of any of each constituent corporation shall not be impaired by such merger or consolidation.

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I. The New Central Bank Act [RA 7653]

(d) Authority to collect interests on loans and advances to closed financial institutions; [Sec. 85, NCBA] and (e) BSP can't acquire shares, including by collateral, nor participate in neither ownership nor management of enterprises, nor engage in development banking or financing [Sec. 128, NCBA]

A. STATE POLICIES The State shall maintain a central monetary authority that shall function and operate as an independent and accountable body corporate in the discharge of its mandated responsibilities concerning money, banking and credit. [Sec. 1] In line with this, the Bangko Sentral ng Pilipinas is: (1) A central monetary authority; (2) An independent and accountable body; and (3) A government-owned corporation that enjoys fiscal and administrative autonomy. [Secs. 1 & 2, NCBA]

C. CREATION OF THE BANGKO SENTRAL NG PILIPINAS (BSP) There is hereby established an independent central monetary authority, which shall be a body corporate known as the Bangko Sentral ng Pilipinas [Sec. 2, NCBA]. The BSP replaced the Central Bank of the Philippines, and shares the same functions, but is a new entity altogether. C.1. NATURE OF THE BSP (1) A central monetary authority;

B. SALIENT FEATURES (1) Assurance of BSP independence by providing for the majority of the members of the Monetary Board to come from the private sector. [Sec. 6] (2) The BSP may now concentrate on monetary policy, and will phase out its fiscal agency functions and its responsibilities in respect of finance companies without quasi-banking functions, which in the past, had distracted it from its primary function. The latter has been assumed by the Securities and Exchange Commission. [Secs. 3, 129, & 130, NCBA] (3) Provides safeguards to ensure that unlike the old Central Bank which sustained huge losses, the BSP would have a positive net income position by the following provisions: (a) Capitalization of P50B; [Sec.2, NCBA] (b) Maintenance of positive net foreign asset position; [Sec.71, NCBA]

(2) An independent and accountable body; and (3) A government-owned corporation but enjoys fiscal and administrative autonomy. [Secs. 1 & 2, NCBA] C.2. CAPITALIZATION The BSP shall have a capitalization of P50B to be fully subscribed by the Government. [Sec. 2, NCBA]

D. RESPONSIBILITY AND PRIMARY OBJECTIVE D.1. PRIMARY OBJECTIVES (1) To maintain price stability conducive to balanced and sustainable economic growth. (2) To promote and maintain monetary stability and the convertibility of the peso.

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departments performing supervision and examination functions, against all costs and expenses reasonably incurred by such persons in connection with any civil or criminal action, suit or proceeding, to which any of them may be made a party by reason of the performance of his functions or duties, unless such members or other officials is found to be liable for negligence or misconduct. [Sec. 15, NCBA]

D.2. OTHER RESPONSIBILITIES (1) To provide policy directions in the areas of money, banking, and credit (2) To supervise operations of banks (3) Regulates finance companies and nonbank financial institutions performing quasi-banking functions [Sec. 3, NCBA] D.3. BSP AS TRANSFEREE OF PHILIPPINE CENTRAL BANK POWERS All powers, duties and functions vested by law in the Central Bank of the Philippines not inconsistent with the NCBA shall be deemed transferred to the BSP. All references to the Central Bank of the Philippines in any law or special charters shall be deemed to refer to the BSP. [Sec. 136, NCBA]

E. MONETARY BOARD The body through which the powers and functions of the Bangko Sentral are exercised [Sec 6, NCBA] E.1. POWERS AND FUNCTIONS (1) Issue rules and regulations it considers necessary for the effective discharge of the responsibilities and exercise of the powers vested in it; (2) Direct the management, operations, and administration of the BSP, reorganize its personnel and issue such rules and regulations as it may deem necessary or desirable for this purpose; (3) Establish a human resource management system which governs the selection, hiring, appointment, transfer, promotion, or dismissal of all personnel; (4) Adopt an annual budget for and authorize such expenditures by BSP as are in the interest of the effective administration and operations of Bangko Sentral in accordance with applicable laws and regulations; and

E.2. COMPOSITION The MB shall be composed of 7 members appointed by the President with a 6-year term. [Sec. 6, NCBA] MEMBERS (1) The BSP Governor or his designated alternate (a deputy governor); (2) A Cabinet member to be designated by the President or his designated alternate (an Undersecretary in his department); and (3) 5 members from the private sector [Sec. 6, NCBA] E.3. REAPPOINTMENT No member of the MB may be reappointed more than once. [Sec. 6, NCBA] E.4. QUALIFICATIONS (1) Citizenship – Natural-born citizens of the Philippines; (2) Age General Rule: At least 35 years old Exception: Governor must be at least 40 years old; (3) Of good moral character; (4) Of unquestionable integrity; (5) Of known probity and patriotism; and (6) With recognized competence in social and economic disciplines. [Sec. 8, NCBA]

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E.5. DISQUALIFICATIONS In addition to the disqualifications under the Code of Conduct and Ethical Standards for Public Officials and Employees [RA 6713], a member of the Monetary Board is disqualified by: (1) Direct connection with any multilateral banking or financial institution; or (2) Substantial interest in any private bank in the Philippines, within 1 year prior to his appointment [Sec. 9, NCBA] E.6. PROHIBITION ON MEMBERS OF THE MB (1) Being a director, officer, employee, consultant, lawyer, agent or stockholder of any bank, quasi-bank, or any other institution which is subject to supervision or examination by the BSP (rem edy: resign and divest interests before assuming office]; (2) Holding any other public office or public employment during their tenure; and (3) Being employed in any multilateral banking or financial institution within 2 years after the expiration of his term. Exception: When he serves as an official representative of the government to such institution. [Sec. 9, NCBA] E.7. GROUNDS FOR REMOVAL OF ANY MEMBER OF THE MB (1) If the member is subsequently disqualified under Sec. 8; (2) If he is physically or mentally incapacitated that he cannot properly discharge his duties and responsibilities and such incapacity has lasted for more than 6 months; (3) If he is guilty of acts or operations which are of fraudulent or illegal character or which are manifestly opposed to the aims and interests of the BSP; and (4) If he no longer possesses the qualifications under Sec. 8. [Sec. 10, NCBA]

MERCANTILE LAW

E.8. VACANCIES, HOW FILLED Causes: (1) Death; (2) Resignation; or (3) Removal. Effect: A new member will be appointed to complete the unexpired period of the term of the member concerned. [Sec. 7, NCBA] E.9. CIVIL LIABILITY OF MEMBERS OF THE MB Members of the MB, officials, examiners, and employees of the BSP are liable when they: (1) Willfully violate the provisions of the NCBA; (2) Are guilty of negligence, abuses or acts of malfeasance or misfeasance; or (3) Fail to exercise extraordinary diligence in the performance of his duties; (4) Disclose confidential information, or information relating to MB discussions or resolutions, or about the BSP’s confidential operations Exceptions: (a) Disclosure is in connection with the performance of official functions with the BSP; (b) MB or BSP authorization; or

Governor’s

prior

(5) Use confidential information for their personal gain –or– to the detriment of the Government, BSP, or 3rd Parties [Sec. 16, NCBA]

F. HOW THE BSP HANDLES BANKS IN DISTRESS W HEN BANKS ARE IN DISTRESS Illiquidity – occurs when the bank is not liquid. It means that the bank cannot meet its current liabilities. Liquidity is the ability of an asset to be converted into cash. An entity is liquid when

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it is able to pay its liabilities when they fall due. o

Illiquidity is conservatorship.

handled

by

MERCANTILE LAW

(3) The Board of Directors must be informed in writing of the order of the Monetary Board directing conservatorship. III. DURATION

Insolvency – When the actual market value of assets are insufficient to pay its liabilities, not considering capital stock and surplus which are not liabilities for such purpose. An entity is insolvent when it is unable to meet current and long-term obligations. o

o

In contrast, a bank is solvent when current assets are more than current liabilities, providing the ability to pay debts. It is able to meet its long term obligations/liabilities. Insolvency is handled by receivership and/or closure.

F.1. CONSERVATORSHIP Conservatorship involves the appointment of a conservator to preserve the assets of the bank when the latter is illiquid, and take measures I. GROUNDS FOR APPOINTMENT OF A CONSERVATOR Whenever, on the basis of a report submitted by the appropriate supervising or examining department, the MB finds that a bank or quasi-bank is: (1) In a state of continuing inability; or (2) Unwillingness to maintain a condition of liquidity deemed adequate to protect the interest of depositors and creditors [Sec. 29, NCBA] II. REQUISITES IN PLACING A BANK UNDER CONSERVATORSHIP (1) There must be a report submitted by the appropriate supervising or examining department of the BSP; (2) There must be a finding that the bank or quasi-bank falls under either of the grounds for conservatorship.

Shall not exceed 1 year [Sec. 29, NCBA] IV. EXPENSES The expenses attendant to the conservatorship shall be borne by the bank or quasi-bank concerned [Sec. 29, NCBA] V. GROUNDS FOR TERMINATION OF CONSERVATORSHIP BY MB (1) When MB is satisfied that the institution can continue to operate on its own and the conservatorship is no longer necessary; or (2) When, on the basis of the report of the conservator or of its own findings, the MB determines that the continuance in business of the institution would involve probable loss to its depositors or creditors (effect: the bank or quasi-bank would then be placed under receivership) [Sec. 29, NCBA] VI. EFFECTS OF CONSERVATORSHIP (1) Bank/Quasi-bank personality

retains

juridical

(2) Not a precondition to the designation of a receiver [Sec. 30, NCBA], and; (3) Perfected transactions cannot be repudiated [First Philippine International Bank v. CA, G.R. No. 115849 (1996)] While the Central Bank law gives vast and far reaching powers to the conservator of a bank, such powers must be related to the preservation of the assets of the bank, the reorganization of the management and the restoration of viability. Such powers cannot extend to the post-facto repudiation of perfected transactions, otherwise they would infringe against the non-impairment clause of the Constitution. [First Philippine International Bank v. CA, G.R. No. 115849 (1996)]

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VII. QUALIFICATIONS CONSERVATOR

OF

A

The conservator should be competent and knowledgeable in bank operations and management. [Sec. 29, NCBA] The appointment of a conservator shall be vested exclusively in the MB. [Sec. 30, NCBA] Note that the conservator is a natural person to be appointed by the Monetary Board. In contrast, the receiver is always the PDIC. VIII. POW ERS AND CONSERVATOR

DUTIES

OF

A

(1) To take charge of the assets, liabilities, and the management thereof; (2) To reorganize the management;

MERCANTILE LAW

X. REM UNERATION General Rule: The conservator shall receive remuneration in an amount not to exceed 2/3 of the salary of the president of the institution in 1 year, payable in 12 equal monthly payments. Exception: A conservator connected with the BSP, in which case said conservator shall not be entitled to receive any remuneration or emolument. [Sec. 29, NCBA] F.2. CLOSURE I. CONCEPT The MB may summarily and without need for prior hearing close a banking institution and place it under receivership.

(5) To report and be responsible to the MB;

Receivership is equivalent to an injunction to restrain the bank in any way. Thus, the appointment of a receiver operates to suspend the authority of the bank and of its directors and officers over its property and effects [Villanueva v. CA, G.R. No. 114870 (1995)]

(6) To overrule or revoke the actions of the previous management and board of directors of the bank or quasi-bank. [Sec. 29, NCBA]

Receivership refers to the stage within which the PDIC manages the affairs of the closed bank and preserves its assets for the benefit of creditors [RA 9302, Sec. 10(a,b)]

(3) To collect all monies and debts due said institution; (4) To exercise all powers necessary to restore its viability;

However, note that the management of the bank is still with its board of directors and management. However, the conservator may revoke their actions. In contrast, in receivership, the receiver takes over the management of the bank. IX. THE CONSERVATOR CANNOT REPUDIATE PERFECTED CONTRACTS While the Central Bank law gives vast and far reaching powers to the conservator of a bank, such powers must be related to the preservation of the assets of the bank, the reorganization of the management and the restoration of viability. Such powers cannot extend to the post-facto repudiation of perfected transactions, otherwise they would infringe against the non-impairment clause of the Constitution. [First Philippine International Bank v. CA, G.R. No. 115849 (1996)]

III. GROUNDS Under the GBL When a banking institution: (1) Notifies the BSP or publicly announces a bank holiday; or (2) Suspends the payment of its deposit liabilities continuously for more than 30 days in any manner[Sec. 53, GBL] (3) Persistence in conducting business in an unsafe or unsound manner [Sec. 56, GBL] Under the NCBA Whenever the MB finds that a bank or quasibank: (1) Is unable to pay its liabilities as they become due in the ordinary course of business.

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(a) Except for inability to pay caused by extraordinary demands induced by financial panic in the banking community; (bank run) (b) Has insufficient realizable assets, as determined by the BSP, to meet its liabilities; or (c) Cannot continue in business without involving probable losses to its depositors or creditors; or (d) Has willfully violated a cease-and-desist order under Sec. 37 that has become final, involving acts or transactions which amount to fraud or a dissipation of the assets of the institution. (a) Special rule: in this situation, the MB may act summarily and without hearing [Sec. 30, NCBA]

MERCANTILE LAW

(3) Cannot continue in business without involving probable losses to its depositors or creditors; or (4) Has willfully violated a cease-and-desist order under Sec. 37 that has become final, involving acts or transactions which amount to fraud or a dissipation of the assets of the institution. Special rule: in this situation, the MB may act summarily and without hearing [Sec. 30, NCBA] III. W HO ACTS AS RECEIVER (1) If a banking institution: the PDIC (2) If a quasi-bank: any person of recognized competence in banking or finance [Sec. 30, NCBA] IV. W HO APPOINTS RECEIVERS

F.3. RECEIVERSHIP I. REQUISITES (1) Report of the head of the supervising department involving the bank (2) Finding of the Monetary Board of the existence of any of the grounds for receivership. (3) Decision of the MB to forbid the institution from doing business, which decision may be done summarily and without need for prior hearing. (4) Notice in writing to the BOD informing the institution of the order of the MB.

The appointment of a receiver shall be vested exclusively in the MB. [Sec. 30, NCBA] V. CONSERVATORSHIP RECEIVERSHIP

VIS-À-VIS

The designation of a conservator is not a precondition to the designation of a receiver. [Sec. 30, NCBA] VI. POW ERS RECEIVER

AND

DUTIES

OF

A

II. GROUNDS

(1) Immediately gather and take charge of all the assets and liabilities of the institution

Whenever the MB finds that a bank or quasibank:

(2) Administer the assets for the benefit of the creditors

(1) Is unable to pay its liabilities as they become due in the ordinary course of business. Exception: This shall not include inability to pay caused by extraordinary demands induced by financial panic in the banking community;

(3) Exercise the general powers of a receiver under the Revised Rules of Court (4) Not to pay or commit any act that will involve the transfer or disposition of any asset of the institution.

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Exceptions: (1) Administrative expenditures; (2) Receiver may deposit or place funds in non-speculative investments.

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(5) Subject to prior approval of the MB, determine, as soon as possible, but not later than 90 days from take-over, whether the institution may be rehabilitated or otherwise placed in such a condition so that it may be permitted to resume business with safety to its depositors and creditors and the general public. [Sec. 30, NCBA]

In other words, when there is a ground for closure and receivership, such closure may be effected without notice and hearing. The validity of closure may be challenged afterwards.

Exceptions:

After undergoing conservatorship, closure, and/or receivership, if the bank cannot be rehabilitated, it shall be liquidated

(1)

Administrative expenditures;

(2) Receiver may deposit or place funds in non-speculative investments.[Sec. 30, NCBA] The assets of the institution under receivership and liquidation shall be deemed in custodia legis and shall be exempt from any order of garnishment, levy, attachment, or execution. [Sec. 30, NCBA] So, in contrast to a conservator, the receiver takes over the operations of the bank and the management of its assets. However, the main duty of a receiver is to, within 90 days of takeover, to determine whether the bank can be rehabilitated or not. If it can, receivership will continue, or the bank will be placed under conservatorship. If it cannot, the bank will be liquidated. VII. CLOSE SCHEME

NOW ,

HEAR

LATER

Sec. 29 of the Central Bank Act does not contemplate prior notice and hearing before a bank may be directed to stop operations and placed under receivership. It is enough that such action is made subject of a subsequent judicial review. When the law provides for the filing of a case within 10 days after the receiver takes charge of the assets of the bank, it is unmistakable that the assailed actions should precede the filing of the case. The legislature could not have intended to authorize “no prior notice and hearing” in the bank’s closure and at the same time allow a suit to annul it on the basis of absence thereof [Central Bank vs. CA and Triumph Savings Bank, GR No. 76118, March 30, 1993]

F.4. LIQUIDATION I. CONCEPT

Liquidation refers to the recovery and conversion of assets into cash for distribution to all creditors in accordance with the rules on concurrence and preference of credits. II. KINDS OF LIQUIDATION (1) Voluntary liquidation, and (2) Involuntary liquidation III. VOLUNTARY LIQUIDATION The Stockholders and the Board of Directors can decide to liquidate a bank in accordance with the procedure under the Corporation Code. However, as an additional requirement, written notice of the liquidation should be sent to the MB before the liquidation is undertaken. Further, the MB shall have the right to intervene and take such steps as may be necessary to protect the interests of creditors. [Sec. 68, GBL] IV. GROUNDS FOR LIQUIDATION (1) The condition of the bank is one of insolvency, (2) Its continuance would involve probable loss to its creditors (3) In both cases, the MB determines that the bank cannot be rehabilitated.

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V. HOW INSTITUTED Should the determination be that the institution cannot be rehabilitated or permitted to resume business, the MB shall notify in writing the board of directors of the institution of its findings and direct the receiver to proceed with the liquidation of the institution. [Sec. 30, NCBA]

(a) If a quasi-bank, the liquidation plan is adopted by the MB; (2) Upon acquiring jurisdiction, the court shall, upon motion by the receiver after due notice: (a) Adjudicate disputed claims against the institution; (b) Assist the enforcement of individual liabilities of the stockholders, directors, and officers; and

VI. CHALLENGING THE DECISION OF THE RECEIVER Only stockholders representing a majority of the capital stock of the bank have the personality to file a petition for certiorari to be filed within 10 days from receipt by the BOD of the order directing receivership, conservatorship, or liquidation. VII. EFFECTS OF LIQUIDATION (1) Retention of juridical personality;

(c) Decide on other issues as may be material to implement the liquidation plan (3) The receiver shall convert the assets of the institutions to money, dispose of the same to creditors and other parties, for the purpose of paying the debts of such institution in accordance with the rules on concurrence and preference of credit under the Civil Code. [Sec. 30, NCBA]

(2) Suspension of operations / Stoppage of business;

IX. SUITS BY RECEIVER

(3) Assets are deemed in custodia legis, i.e., exempt from garnishment, levy or execution;

The receiver may institute actions to collect and recover assets or defend actions against the institution, with the assistance of counsel as he may retain. [Sec. 30, NCBA]

(4) Stay of execution of judgment to prevent depletion of bank assets; (5) Bank is not liable to pay interest on deposits which accrued during the period of suspension of operation; (6) Restriction of bank’s capacity to do new business (new loans, deposits) but with obligation to collect pre-existing debts. (a) It cannot take new deposits or grant new loans. (b) However, it can collect pre-existing debts. (7) Deposits do not become preferred credits VIII. PROCEDURE (1) The receiver shall file ex parte with the proper RTC, and without requirement of prior notice or any other action, a petition for assistance in the liquidation of the institution pursuant to the liquidation plan adopted by the PDIC.

X. DISPOSITIONS After payment of the cost of proceedings, including reasonable expenses and fees of the receiver to be allowed by the court, the receiver shall pay the debts of such institution, under order of the court, in accordance with the rules on concurrence and preference of credit in the Civil Code. [Sec. 31, NCBA] All revenues and earnings realized by the receiver in winding up the affairs and administering the assets of any bank or quasi-bank shall be used to pay the costs of proceedings, salaries of such personnel whose employment is rendered necessary in the discharge of the liquidation together with other additional expenses caused thereby. The balance of revenues and earnings, after the payment of all said expenses, shall form part of the assets available to creditors. [Sec. 32. NCBA]

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X. COMPARISON LIQUIDATION

Concept

OF

CONSERVATORSHIP,

Power and duties thereof

CLOSURE

AND

RECEIVERSHIP,

Conservatorship A bank suffering from illiquidity is placed under conservatorship to protect its creditors and to allow it to become liquid again.

Closure/Receivership An insolvent bank is placed under the control of a receiver, who will decide whether to rehabilitate it or liquidate it.

A bank or quasi-bank is: (1) In a state of continuing inability to maintain liquidity deemed adequate to protect the interest of depositors or creditors, or (2) Unwillingness to do so.

Under the GBL When a banking institution: (1) Notifies the BSP or publicly announces a bank holiday; or (2) Suspends the payment of its deposit liabilities continuously for more than 30 days in any manner (3) Persistence in conducting business in an unsafe or unsound manner

Grounds

Who carries it out

MERCANTILE LAW

Conservator, who is an individual appointed by the BSP. (1) To take charge of the assets, liabilities, and the management thereof; (2) To reorganize the management;

AND

Liquidation The assets of a bank, which is not capable of being rehabilitated, are sold, and the proceeds are used to pay off the bank’s debts. (1) The condition of the bank is one of insolvency, (2) Its continuance would involve probable loss to its creditors (3) In both cases, the MB determines that the bank cannot be rehabilitated.

Under the NCBA Whenever the MB finds that a bank or quasi-bank: (1) Is unable to pay its liabilities as they become due in the ordinary course of business. (2) Has insufficient realizable assets, as determined by the BSP, to meet its liabilities; or (3) Cannot continue in business without involving probable losses to its depositors or creditors; or (4) Has willfully violated a ceaseand-desist order under Sec. 37 that has become final, involving acts or transactions which amount to fraud or a dissipation of the assets of the institution. Receiver, who in the case of banks is the PDIC

Liquidation Court and Receiver

(1) Immediately gather and take charge of all the assets and liabilities of the institution (2) Administer the assets for the benefit of the creditors (3) Exercise the general powers of

Court: (1) Adjudicate disputed claims against the institution; (2) Assist the

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(3) To collect all monies and debts due said institution; (4) To exercise all powers necessary to restore its viability; (5) To report and be responsible to the MB; (6) To overrule or revoke the actions of the management and board of directors of the bank (7) Notably does not have the power to take over bank affairs.

a receiver under the Revised Rules of Court (4) Within 90 days, decide whether the bank can be rehabilitated or should be liquidated. (5) Not to pay or commit any act that will involve the transfer or disposition of any asset of the institution.

After 1 year

Within 90 days, if liquidation is decided upon Until the bank is viable again, if rehabilitation decided upon

G. HOW THE BSP HANDLES EXCHANGE CRISIS

enforcement of individual liabilities of the stockholders, directors, and officers; and (3) Decide on other issues as may be material to implement the liquidation plan Receiver: (1) convert the assets of the institutions to money, and (2) dispose of the same to for the purpose of paying the debts of the institution When debts have been paid in accordance with the liquidation plan.

G.2. RETIREMENT OF OLD NOTES AND COINS The BSP may call in for replacement:

G.1. LEGAL TENDER POWER All notes and coins issued by the BSP shall be fully guaranteed by the Government of the Republic of the Philippines and shall be legal tender in the Philippines for all debts, both public and private. [Sec. 52, NCBA] Lim itation: Coins shall be legal tender in amounts not exceeding P50 for denominations of 25 centavos and above, and in amounts not exceeding P20 for denominations of 10 centavos or less. Exception to Lim itation: MB may fix otherwise. [Sec. 52, NCBA] The maximum amount of coins to be considered as legal tender is: [BSP Circular 537 (2006)]

(1) Notes which are more than 5 years old, and (2) Coins which are more than 10 years old. Those called in for replacement remain legal tender until one year from call After that period, they will no longer be legal tender, but may be exchanged for new tender, for a period to be determined by the BSP. After the period for exchange, they cease to be a liability of the BSP and will be demonetized. In times of exchange crises, the BSP may, in its discretion, stop issuing legal tender, or issue more legal tender, as the case may be, in order to achieve exchange stability.

(1) P1,000.00 for denominations of 1-Piso, 5Piso and 10-Piso coins; and (2) P100.00 for denominations of 1-sentimo, 5-sentimo, 10-sentimo, and 25-sentimo coins.

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G.3. RATE OF EXCHANGE The MB shall: (1) Determine the exchange rate policy of the country; (2) Determine the rates at which the BSP shall buy and sell spot exchange; (3) Establish deviation limits from the effective exchange rate or rates as it may deem proper. (4) Determine the rates for other types of foreign exchange transactions by the BSP, including purchases and sales of foreign notes and coins. [Sec. 74, NCBA] Lim itation: The margins between the effective exchange rates and the rates established by the MB may not exceed the corresponding margins for spot exchange transactions by more than the additional costs or expenses involved in each type of transactions. [Sec. 74, NCBA] I. IN TIMES OF CRISES The MB may exercise its emergency restrictions on Exchange Operations •

These restrictions may be exercised by a majority vote of the entire MB, i.e. 5 votes.

•

The vote must be approved by the President.

These restrictions the BSP may choose to impose are: (1) Temporary suspension or restriction of sales of exchange by the BSP. (2) Subjecting all transactions in gold and foreign to license by the BSP, or

MERCANTILE LAW

II. Law on Secrecy of Bank Deposits [RA No. 1405, as amended] A. POLICY (1) To give encouragement to the people to deposit their money in banking institutions; and (2) To discourage private hoarding. [Sec. 1]

B. PURPOSE (1) To encourage the people to deposit their money in banks (2) To discourage private hoarding, so that the funds can be used by the bank to grant loans to assist in economic development. The absolute confidentiality rule in R.A. No. 1405 actually aims at protection from unwarranted inquiry or investigation if the purpose of such inquiry or investigation is merely to determine the existence and nature, as well as the amount of the deposit in any given bank account.[China Banking Corporation v. Ortega, G.R. No. L-34964 (1973)]

C. PROHIBITED ACTS (1) Examination, inquiry, or looking into deposits by persons, government officials, bureaus, or offices; [Sec. 2, RA 1405] (2) Disclosure by banking institutions' officials or employees to unauthorized persons regarding information about covered accounts. [Sec. 3, RA 1405]

(3) Requiring that any foreign exchange thereafter obtained by any person residing in or any entity operating in the Philippines be delivered to the BSP or to an agent bank, at effective exchange rates.(Sec. 74) Note: These restrictions do not apply to Foreign Currency Deposits under RA 6426.

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D. DEPOSITS COVERED

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authority to inquire into such accounts, then such doubts must be resolved in favor of confidentiality. [Republic v. Eugenio, G.R. No. 174629 (2008)]

D.1. GENERAL RULE All deposits of whatever nature with banks or banking institutions in the Philippines are considered as of an absolutely confidential nature. [Sec. 2,] This includes investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities. Note that investments in bonds in foreign currency are still covered by RA 1405, and have not been exempted by the Foreign Currency Deposit Act. Exceptions: (1) Foreign Currency Deposits, which are governed by the Foreign Currency Deposit Act, infra. (2) Funds placed in a bank not in the nature of a deposit by private individuals. However, these may also not be disclosed, under Sec. 55.1 of the GBL of 2000. However, take note of the ruling in Ejercito v. SB.

D.4 ZONES OF PRIVACY Under the RA 1405, bank deposits are statutorily protected or recognized zones of privacy. [People v. Estrada, G.R. No. 164368 (2009); Marquez v. Desierto, G.R. No. 135882 (2001); Ople v. Torres, G.R. No. 107737 (1999)] It is conceded that while the fundamental law has not bothered with the triviality of specifically addressing privacy rights relative to banking accounts, there, nevertheless, exists in our jurisdiction a legitimate expectation of privacy governing such accounts. The source of this right of expectation is statutory, and it is found in R.A. No. 1405, otherwise known as the Bank Secrecy Act of 1955. [BSB Group, Inc., v. Go, G.R. No. 168644 (2010)]

E. EXCEPTIONS Deposits:

D. 2 TRUST ACCOUNTS The term "deposits" is to be understood broadly and not limited to accounts giving rise to creditor-debtor relations between the bank and depositor. The deposit of money which may be used by banks for authorized loans to 3rd persons also falls under RA 1405. Therefore, trust accounts are also covered. [Ejercito v. SB Special Division, G.R. Nos. 157294-95 (2006)] D.3 CONSTRUCTION OF CONFIDENTIALITY By force of statute, all bank deposits are absolutely confidential, and that nature is unaltered even by the legislated exceptions. There is disfavor towards construing these exceptions in such a manner that would authorize unlimited discretion on the part of the government or of any party seeking to enforce those exceptions and inquire into bank deposits. If there are doubts in upholding the absolutely confidential nature of bank deposits against affirming the

(1) Upon written permission of the depositor (2) In cases of impeachment (3) Upon order of competent court in cases of bribery and dereliction of duty. (4) In cases where the money deposited or invested is the subject matter of litigation If the case is for the recovery of money as a result of failure to inform regarding improper crediting, the money in the account is not the subject matter of litigation. This is because the amount sought to be recovered is different from the amount that is already in the account. By the terms of RA 1405, the ‘money deposited’ itself should be the subject matter of the litigation [Union Bank v. Court of Appeals, G.R. No. 134699 (1999)] In contrast, where the case is for the recovery of amounts converted by the depositors, the amount sought to be recovered is exactly the money that is supposedly in the account. If the case necessarily involves inquiring into

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the whereabouts of the illegally-acquired amount, this falls under the exceptions to bank secrecy under RA 1405. [Mellon Bank, N.A. v. Magsino, G.R. No. 71479 1990] OTHER EXCEPTIONS: (1) The Commissioner of Internal Revenue can inquire into the bank accounts of the ff. taxpayers: (a) A decedent in order to determine his gross estate, or (b) A taxpayer who has filed an application to compromise his tax liability on the ground of financial incapacity. (NIRC, Sec. 6(f)) (c) A taxpayer, information on whose account is requested by a foreign tax authority (2) Unexplained wealth under Sec. 8 of the Anti-Graft and Corrupt Practices Act [RA 3019]. [PNB v. Gancayco, G.R. No. L-18343 (1965); Banco Filipino v. Purisima, G.R. No. L-56429 (1988); Marquez v. Desierto, G.R. No. 135882 (2001)] (3) Cases under the AMLA [RA 9160, the Anti-Money Laundering Act of 2001] when there is probable cause that the deposits or investments involved are in any way related to an unlawful activity or a money laundering offense. [Sec. 11, AMLA, see infra.] (a) Under the Human Security Act of 2007, cases involving: (i) Kidnapping for Ransom [RPC] (ii) Dangerous Drugs [2002 Comprehensive Dangerous Drugs Act] (iii) Hijacking and other violations of RA 6235, and (iv) Destructive arson and murder, are exceptions to the requirement of a court order in order to examine the accounts.

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(5) Disclosure of certain information about bank deposits which have been dormant for at least 10 years, to the Treasurer of the Philippine in a sworn statement, a copy of which is posted in the bank premises. [Sec. 2, Unclaimed Balances Law, Act No. 3926, as amended by PD 679] (6) The PDIC and/or the BSP can inquire into or examine deposit accounts and all information related thereto in case there is a finding of unsafe and unsound banking practice [Sec. 8, paragraph 8, R.A. 3591, as amended by R.A. 9576]. Not an exception: Power of the Ombudsman to “examine and have access to bank accounts and records” under Sec. 15[8] of RA 6770 [Morales, The Philippine General Banking Law (2004)]

F. POWER OF THE OMBUDSMAN TO EXAMINE ACCOUNTS While the Ombudsman is empowered to “examine and have access to bank accounts and records” under Sec. 15[8] of RA 6770, this power was limited in Marquez v. Desierto [G.R. No.135882 (2001)], where the SC ruled that before an inspection could be allowed, there m ust be a pending case before a court of com petent jurisdiction. This is, in turn, subject to the ff. additional requirements: (1) The account must be clearly identified, (2) The inspection limited to the subject matter of the pending case before the court of competent jurisdiction, (3) The bank personnel and the account holder must be notified to be present during the inspection, and (4) Such inspection may cover only the account identified in the pending case.

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G. GARNISHMENT OF DEPOSITS General rule: The prohibition against examination of or inquiry into a bank deposit under Republic Act 1405 does not preclude its being garnished to insure satisfaction of a judgment. [China Banking Corporation v. Ortega, G.R. No. L-34964 (1973); Philippine Commercial and Industrial Bank v. Court of Appeals, G.R. No. 84526 (1991)] “[T]he prohibition against examination of or inquiry into a bank deposit under Republic Act 1405 does not preclude its being garnished to insure satisfaction of a judgment. Indeed there is no real inquiry in such a case, and if the existence of the deposit is disclosed the disclosure is purely incidental to the execution process. It is hard to conceive that it was ever within the intention of Congress to enable debtors to evade payment of their just debts, even if ordered by the Court, through the expedient of converting their assets into cash and depositing the same in a bank.”[China Banking Corporation v. Ortega, G.R. No. L-34964 (1973)]

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(2) On grounds of equity, garnishment was allowed in a case where a Filipino child was raped by a foreigner, the SC allowed, pro hac vice, garnishment of foreign currency deposits stating[Salvacion v. CA, G.R. No. 94723 (1997)] (a) However, again, this was pro hac vice, so it is doubtful if this applies in other cases.

I. PENALTIES (1) Imprisonment of not more than 5 years; or (2) Fine of not more than P20,000; or (3) Both, in the discretion of the court [Sec. 5, RA 1405]

Exception: Foreign Currency Deposits The foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. [Sec. 8, FCDA – Foreign Currency Deposit Act]

H. CONFIDENTIALITY OF FOREIGN CURRENCY DEPOSITS General rule: Foreign currency deposits are confidential. Exceptions: (1) Upon written permission of the depositor [Sec. 8, Foreign Currency Deposit Act ; Intengan vs CA, G.R. No. 128996 (2002)] (a) This is the only exception given by law. [GSIS v. CA, G.R. No. 189206 (2011)] (b) However, jurisprudence provides another exception for garnishment. PAGE 241 OF 320

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III. General Banking Law of 2000 [RA 8791]

B. To invest in non-allied enterprises

A. INTRODUCTION

II. COMMERCIAL BANK (KB)

A.1. DEFINITION OF BANKS "Banks" shall refer to entities engaged in the lending of funds obtained in the form of deposits. (Sec. 3.1)

efforts (excess to be returned to the firm)

-

Has the powers defined in Secs. 29. And 53, infra.

-

This is the most common kind of bank.

III. THRIFT BANK •

Thrift banks are banks that focus on basic banking services for their clients, with an emphasis on individuals and small businesses. (Some Financial Textbook since the Thrift Banks Act doesn’t have a working definition of thrift banks)

•

Thrift banks are primarily governed by RA 7906, the Thrift Banks Act.

•

Thrift banks include:

I. HOW BANKS ARE STRUCTURED Generally, Banks are corporations. However, cooperative banks may also be formed under the Cooperatives Code. NB. Note that under RA 10641, banks may now be fully foreign owned, through any of the ff. modes of entry: (1) Acquiring, purchasing, or owning up to 100% of the voting stock of an existing bank, (2) Investing in up to 100% of the voting stock of a new banking subsidiary incorporated under the laws of the Philippines, or (3) Establishing branches with full banking authority. •

However, the foreign bank must be established, reputable, and financially sound.

•

Further, it must be widely-owned and publicly listed in the country of origin.

o

Savings and mortgage banks

o

Savings and loan associations, and

o

Private development banks.

D. RURAL BANKS •

Are banks that are formed for the purpose of providing adequate credit facilities to farmers and merchants, or to cooperatives of such farmers and merchants and in general, the people of the rural communities.

•

They are primarily governed by RA 7353, the Rural Banks Act.

A.2. CLASSIFICATION OF BANKS V. COOPERATIVE BANKS

I. UNIVERSAL BANK (UB) As the name implies, a universal bank has the most banking power, as it has the same powers as a commercial bank, plus the powers: (1) To operate an investment house, whether as an integral unit or as a subsidiary. (a) In turn, an investment house underwrites securities either on firm underwriting (good as sold) or best

Are those which are organized as cooperatives under RA 6938, the Cooperatives Code. VI. ISLAMIC BANKS There is exactly one Islamic Bank in the Philippines, the Al-Amanah Islamic Bank, which aims to provide banking under the Shari’a principles governing banking.

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The General Banking Law of 2000) or to perform investment management services under Section 53 of RA 8791.

VII. OTHER BANKS AS CLASSIFIED BY THE BSP This includes Land Bank, the Philippine Veteran’s Bank, and Development Bank of the Philippines. A.3. QUASI-BANKS AND TRUST ENTITIES Quasi-banks refer to entities engaged in the borrowing of funds through the issuance, endorsement or assignment with recourse or acceptance of deposit substitutes as defined in Section 95 of the "New Central Bank Act" for purposes of relending or purchasing of receivables and other obligations. A.4. DEPOSIT SUBSTITUTES A deposit is an alternative form of obtaining funds from the public, other than deposits, through the issuance, endorsement, or acceptance of debt instruments for the borrower's own account, for the purpose of relending or purchasing of receivables and other obligations. o

These instruments may include, but need not be limited to, bankers acceptances, promissory notes, participations, certificates of assignment and similar instruments with recourse, and repurchase agreements

o

Instead, the funds are received from investors in exchange for a financial instrument like a bond or a loan, which will be paid at a given time.

o

However, the deposit substitute must be on a with recourse basis.

A.5. TRUST ENTITIES REGULATION OF BANKS)

(MANUAL

OF

Trust entity (TE) shall refer to a: (1) bank or an NBFI, through its specifically designated business unit to perform trust functions; or (2) trust corporation, authorized by the Bangko Sentral to engage in trust and other fiduciary business under

A.6 CORE BANKING FUNCTIONS As defined, (1) the taking of deposits and (2) the lending of the funds coming from the same. I. RELATIONSHIP DEPOSITOR AND BANK

BETW EEN

Creditor(bank) and Debtor (Depositor) II. NATURE OF DEPOSITED FUNDS Thus, the deposit is a contract of loan, with the bank being lent money by the depositor. Under the Civil Code provisions on loan, this means that the money deposited with the bank becomes its property, which it is free to use, subject to the condition that the depositor can demand repayment, in the form of withdrawals, at any time. III. QUASI-DEPOSITS o

Funds placed with bank, but which is not in the nature of a deposit

o

Must be on with recourse basis

o

As banks no longer have to apply for authority to accept deposit substitutes, this may now be considered a core banking function.

B. POWERS OF A COMMERCIAL BANK (SEC. 29) A commercial bank shall have, in addition to the general powers incident to corporations, all such powers as may be necessary to carry on the business of commercial banking such as: (1) accepting drafts and (2) issuing letters of credit;

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(3) discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt;

o

A 3% monthly interest rate has been ruled iniquitous. [Macalinao v. BPI, G.R. No. 175490 (2009)]

(4) accepting or creating demand deposits;

o

Also, while it is acceptable for banks to stipulate that interest rates on a loan not be fixed and instead be made dependent on market conditions, there should always be a reference rate upon which to peg the rates.[Consolidated Bank v. CA, G.R. No. 114286 (2011)]

(5) receiving other types of deposits and deposit substitutes; (6) buying and selling foreign exchange and gold or silver bullion; (7) acquiring marketable bonds and other debt securities; and (8) extending credit.

B. 4. INCIDENTAL BANKING POWERS

B.1 CORPORATE POWERS Aside from the powers listed above, banks, generally being in the form of a corporation, also have all the powers a corporation has. o

The exception is cooperative banks, which are in the form of a cooperative, and have all the powers of a cooperative under the Cooperatives Code.

B.2. GRANTING OF LOANS; SECURITY REQUIREMENT The GBL no longer requires credit to be secured. o

This is in contrast to the General Banking Act it replaced, which requires all loans to be secured.

In addition to the operations specifically authorized in this Act, a bank may perform the following services: (1) Receive in custody funds, documents and valuable objects; (2) Act as financial agent and buy and sell, by order of and for the account of their customers, shares, evidences of indebtedness and all types of securities; (3) Make collections and payments for the account of others and perform such other services for their customers as are not incompatible with banking business; (4) Upon prior approval of the Monetary Board, act as managing agent, adviser, consultant or administrator of investment management/advisory/consultancy accounts; and (5) Rent out safety deposit boxes.

B. 3. STIPULATIONS ON INTEREST As an accessory to its power to grant loans, banks may stipulate interests. o

With the removal of the limit on imposable interest under CB Circular 905, banks may impose interest past the legal interest rate of 6% (CB Circular 799-13)

o

However, this does not give banks the right to impose excessive interests. A stipulated interest rate may nevertheless be equitably reduced should the same be found to be iniquitous, unconscionable, and exorbitant under Art. 1556 of the CC. If such is the case, there is no stipulated rate, and the legal rate applies. [Dio v. Japor, G.R. No. 154129 (2005)]

C. DISTINCTION OF BANKS FROM QUASI-BANKS AND TRUST ENTITIES See p. 243, supra

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D. BANK POWERS AND LIABILITIES D.1. CORPORATE POWERS CORPORATION CODE]

[SEC.

36,

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(3) Discounting and negotiating promissory notes, drafts, bills of exchange, and other evidence of debt (4) Accepting or creating demand deposits (5) Receiving other types of deposits and deposit substitutes

(1) Sue and be sued in its corporate name;

(6) Buying and selling foreign exchange and gold or silver bullion

(2) Succession; (3) Adopt and use a corporate seal; (4) Amend its Articles of Incorporation;

(7) Acquiring marketable bonds and other debt securities

(5) Adopt and amend by-laws;

(8) Extending credit

(6) For stock corporations - issue or sell stocks to subscribers and sell treasury stocks; for non-stock corporation - admit members to the corporation;

I. ACCEPTING DRAFTS

(7) Purchase, receive, take or grant, hold, convey, sell, lease, pledge, mortgage and otherwise deal with such real and personal property, pursuant to its lawful business; (8) Enter into merger or consolidation with other corporations as provided in the Code; (9) Make reasonable donations, including those for the public welfare or for hospital, charitable, cultural, scientific, civic, or similar purposes: Provided, no corporation, domestic or foreign, shall give donations in aid of any political party or candidate or for purposes of partisan political activity; (10) Establish pension, retirement, and other plans for the benefit of its directors, trustees, officers and employees; and (11) Exercise such other powers as may be essential or necessary to carry out its purposes

II. ISSUING LETTERS OF CREDIT III. DISCOUNTING AND NEGOTIATING PROMISSORY NOTES, DRAFTS, BILLS OF EXCHANGE, AND OTHER EVIDENCE OF DEBT IV. ACCEPTING OR DEMAND DEPOSITS

CREATIN G

General rule: Only a UB KB can accept or create demand deposits [Sec. 33, GBL] Exception: Banks other than a UB or KB with prior approval of, and subject to such conditions and rules as may be prescribed by the Monetary Board [Sec. 33, GBL] Fixed, savings, and current deposits of money in banks and similar institutions shall be governed by the provisions concerning simple loan. [Art. 1980, NCC] Presumption of ownership of deposits

D.2. BANKING AND INCIDENTAL POWERS All such powers as may be necessary to carry on the business of commercial banking [Sec. 29, GBL] (1) Accepting drafts (2) Issuing letters of credit

It is presumed that money deposited in a bank account belongs to the person in whose name the deposit account is opened. A depositor is presumed to be the owner of funds standing in his name in a bank deposit; and where a bank is not chargeable with notice that the money deposited in such account is the property of some other person than the depositor, the bank is justified in paying out the money to the depositor or

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upon his order, and cannot be liable to any other person as the true owner. [Fulton Iron Works Co. v. China Banking Corporation, G.R. No. 32576 (1930)] No duty to set-off A bank is under no duty or obligation to make an application or set-off against the deposit accounts of a borrower. To apply the deposit to the payment of a loan is a privilege, a right of set-off which the bank has the option [but not the obligation] to exercise. [BPI v. CA and Eastern Plywood, G.R. No. 104612 (1994)]

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(4) Negotiable Order of W ithdrawal Accounts – Interest-bearing deposit accounts that combine the payable on demand feature of checks and investment feature of savings accounts [Sec. X223, Manual of Regulations for Banks] VI. BUYING AND SELLING FOREIGN EXCHANGE AND GOLD OR SILVER BULLION VII. ACQUIRING MARKETABLE BONDS AND OTHER DEBT SECURITIES

Safety deposit boxes The rent of safety deposit boxes is a special kind of deposit and cannot be characterized as an ordinary contract of lease because the full and absolute possession and control of the deposit box is not given to the renters. The prevailing rule is that the relation between the bank renting out and the renter is that of bailor and bailee the bailment being for hire and mutual benefit. [CA Agroindustrial Dev. Corp. v. CA, G.R. No. 90027 (1993)] V. RECEIVING DEPOSITS SUBSTITUTES

OTHER AND

TYPES OF DEPOSIT

Types of Deposits (1) Time Deposit - Interest rate stipulated depending on the number of days. During this period, the money deposited may not be withdrawn without incurring penalty. High interest rates. (2) Savings Deposit - Bank pays an interest rate, but not as high as time deposits. (3) Dem and Deposits/Current Accounts - No interest is paid by the bank because the depositor can take out his funds any time. It is called demand deposit because the depositor can withdraw the money he deposited on the very same day when he deposited it or at any time thereafter. [Villanueva, Commercial Law Review (2012)]

VIII. EXTENDING CREDIT “Know your customer” rule Before granting a loan or other credit accommodation, a bank must ascertain that the debtor is capable of fulfilling its commitments to the bank. [Sec. 40, GBL] The bank may demand from its credit applicants a statement of their assets and liabilities and of their income and expenditure and such information as may be prescribed by law or by rules and regulations of MB to enable the bank to properly evaluate the credit application which includes the corresponding financial statements submitted for taxation purposes to the BIR. [Sec. 40, GBL] Credit enhancement If the borrower is less than creditworthy, third persons may enhance his credit by providing guarantees and other security devices in favor of the bank. [Morales (2004)] A bank cannot lend pesos to a non-resident [BSP Circular No. 22; Sec. 22, Manual of Regulations on Foreign Exchange Transactions]. [Morales (2004)]

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Material misrepresentation

Purpose of loans

If there is material misrepresentation, bank—

The purpose shall be stated in the application and in the contract between the bank and the borrower. [Sec. 39, GBL]

(1) May terminate any loan or other credit accommodation granted on the basis of said statements; and (2) Shall have the right to demand immediate repayment or liquidation of the obligation [Sec. 40, GBL] Lim it on loans, credit accom m odations and guarantees

Against Real estate

General rule: Shall not exceed 75% of the appraised value of the respective real estate security, plus 60% of the appraised value of the insured improvements, and such loans may be made to the owner of the real estate or to his assignees Exception: Where the Monetary Board otherwise prescribes [Sec. 37, GBL]

On security of chattels and intangible properties (patents, trademarks, trade names, and copyrights)

General rule: Shall not exceed 75% of the appraised value of the security, and such loans and other credit accommodations may be made to the title-holder of the chattels and intangible properties or his assignees Exception: The Monetary Board otherwise prescribes [Sec. 38, GBL]

Grant of loans (1) Only in amounts and for the periods of time essential for the effective completion of the operations to be financed; and

Effect of usage of loan proceeds for purposes other than those agreed upon with the bank The bank shall have the right to terminate the loan or other credit accommodation and demand immediate repayment of the obligation. [Sec. 39, GBL] Amortization on loans credit accom m odations

and

other

(1) Loans and other credit accommodations with maturities of more than 5 years – Requirement: Provisions must be made for periodic amortization payments, but such payments must be made at least annually. Special rule: That when the borrowed funds are to be used for purposes which do not initially produce revenues adequate for regular amortization payments therefrom, the bank may permit the initial amortization payment to be deferred until such time as said revenues are sufficient for such purpose. Exception to the special rule: In no case shall the initial amortization date be later than 5 years from the date on which the loan or other credit accommodation is granted. (2) In case of loans and other credit accommodations to microfinance sectors – The schedule of loan amortization shall take into consideration the projected cash flow of the borrower and adopt this into the terms and conditions formulated by banks. [Sec. 44, GBL] All are subject to such rules as the Monetary Board may promulgate. [Sec. 29, GBL]

(2) Consistent with safe and sound banking practices. [Sec. 39, GBL]

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E. DILIGENCE REQUIRED OF BANKS

nature of their relationship. [Simex v. CA, G.R. No. 88013 (1990)]

Sec. 2. Declaration Of Policy. - The State recognizes the vital role of banks providing an environment conducive to the sustained development of the national economy and the fiduciary nature of banking that requires high standards of integrity and performance. In furtherance thereof, the State shall promote and maintain a stable and efficient banking and financial system that is globally competitive, dynamic and responsive to the demands of a developing economy.

Likewise, it is negligent for withdrawals to be allowed from an account, if the bank itself failed to follow its own rules and procedures [BPI v. IAC, G.R. No. L-66826 (1988)]

o

Under the old General Banking Act, no standard was given. However, jurisprudence consistently held that banks were to be held to the “highest degree of diligence.”

o

Under the General Banking Law of 2000, however, the standard, as emphasized above, is merely “high standards of integrity and performance.”

o

In theory, this only means that a higher standard of diligence than ordinary diligence, but not necessarily the highest degree of diligence.

o

In practice, however, the SC has consistently imposed the duty on banks to observe the “utmost fidelity” in handling the deposits in their hands.

o

However, the distinction seems to have been clarified by BSP Circular 857, which says that financial institutions must adhere to the highest service standards.

E.1 RELEVANT JURISPRUDENCE (ALSO A HISTORY OF THE STANDARDS REQUIRED OF A BANK.) I. “METICULOUS CARE, ALW AYS HAVING IN MIND THE FIDUCIARY NATURE OF THEIR RELATIONSHIP) When the bank fails to credit funds deposited to the depositor’s account, it is negligent, because the bank has the obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary

II. “UTMOST FIDELITY” The bank is not expected to be infallible but it must hear the blame for not discovering the mistake of its teller despite the established procedure requiring the papers and bank books to pass through a battery of bank personnel whose duty it is to check and countercheck them for possible errors. The depositor expects the bank to treat his account with the utmost fidelity. (BPI v. CA) III. “DILIGENCE HIGHER THAN THAT OF A GOOD FATHER OF A FAMILY” When the teller lost the passbook, the bank failed to meet the high standards of integrity and performance, pursuant to its fiduciary duty under the law. The fiduciary nature of banking requires banks to assume a degree of diligence higher than that of a good father of a family. .[Consolidated Bank v. CA, G.R. No. 114286 (2011)] Failure to meet these high standards bars the bank from claiming due diligence in the selection and supervision of the employees. [Phil. Banking Corp v. CA, G.R. No. 112392 (2000)] As is failure to compare the signatures on the withdrawal slip and signature cards. [PNB v. Pike, G.R. No. 157845 (2005)] IV. “HIGHEST DEGREE OF CARE AND DILIGENCE” Banks were first made subject to the highest degree of care and diligence in Samsung Construction v. FEBTC [G.R. No. 129015 (2004)]. Because of this, banks can’t rely on the mirror principle of LTD, i.e. it cannot rely on the certificate of title when dealing with real estate. [Heirs of Manlapat v. CA, G.R. No. 125585 (2005)]

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These standards apply not only to the bank per se, but also to its employees. [Cadiz v. CA, G.R. No. 153784 (2005)] E.2. ACTS NEGLIGENCE

NOT

CONSTITUTING

Closing a bank account after the depositor handled his account improperly. [Far East Bank and Trust v. Pacilan, G.R. No. 157314 (2005)] Failure to pay interest after bank suspension by the BSP (Fidelity Savings v. Cenzon, G.R. No. L-46208 (1990)) The banking industry is impressed with public interest. As such, the highest degree of diligence is expected, and high standards of integrity and performance are even required. Banks must treat depositors’ accounts with meticulous care and always to have in mind the fiduciary nature of its relationship with them. [Metrobank v. Rosales, G.R. No. 183204 (2014); Comsavings Bank v. Sps. Capistrano, G.R. No. 170942 (2013); Equitable Banking v. Special Steel Products, G.R. No. 175350 (2012)] The Rural Bank of Cabadbaran should not have simply relied on the face of SPAs since its undertaking to lend P200k as a banking institution requires a greater degree of diligence. [RBCI v. Melecio-Yap, G.R. No. 178451 (2014)] The fiduciary nature of banking requires banks to assume a degree of diligence higher than that of a good father of a family. [People v. Go, G.R. No. 168539 (2014); Metrobank v. Centro Development, G.R. No. 180974 (2012)] Banks are required to observe a higher standard of diligence. [Land Bank v. Poblete, G.R. No. 178347 (2013)] The banking business is so impressed with public interest where the trust and confidence of the public in general is of paramount importance such that the appropriate standard of diligence must be very high, if not the highest degree of diligence. [Far East Bank and Trust Company v. Tentmakers, G.R. No. 171050 (2012)] The degree of diligence required of banks is more than that of a good father of a family where the fiduciary nature of their relationship with their depositors is

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concerned. [PNB v. Tria, G.R. No. 193250 (2012)] Banks assume a degree of diligence higher than that of a good father of a family. Its fiduciary duty imposes upon it a higher level of accountability than that expected of a depositor.[Philippine Banking Corporation vs. CA, G.R. No. 127469 (2004)] The General Banking Law of 2000 requires of banks the highest standards of integrity and performance. The banking business is impressed with public interest. Of paramount importance is the trust and confidence of the public in general in the banking industry. Consequently, the diligence required of banks is more than that of a bonus pater familias or a good father of a family. The highest degree of diligence is expected. [Philippine Commercial Bank vs. Balmaceda, G.R. No. 158143, September 21, 2011] Notwithstanding the degree of diligence required, a bank is not expected to be infallible [Prudential Bank vs. CA, G.R. No. 125536 (2000)].

F. FIDUCIARY DUTY (1) Failure on the part of the bank to satisfy the degree of diligence required of banks may warrant the award of damages. (2) Under Sec. 2, the degree of diligence is “high standards of integrity and performance” and no longer “highest degree of diligence” as was decided prior to the effectivity of the General Banking Law of 2000 but also [mistakenly] even thereafter. In numerous cases, the Supreme Court has held that the highest degree of diligence and care is expected from banks [Simex International v. CA, G.R. No. 88013 (1990); Philippine Bank of Commerce v. CA, G.R. No. 97626. (1997); Philippine Savings Bank v. Chowking Food Corporation, G.R. No. 177526 (2008); Bank of America NT &SA v. Philippine Racing Club (2009)]. The fiduciary nature of banking requires banks to assume a degree of diligence higher than that of a good father of a family. [People

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v. Go, G.R. No. 168539 (2014); Metrobank v. Centro Development, G.R. No. 180974 (2012)] The degree of diligence required of banks is more than that of a good father of a family where the fiduciary nature of their relationship with their depositors is concerned. [PNB v. Tria, G.R. No. 193250 (2012)] The law’s policy recognizes the fiduciary nature of banking. [Sps. Serfino v. Far East Bank and Trust Company, G.R. No. 171845 (2012)] As a business affected with public interest and because of the nature of its functions, the bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship. In every case, the depositor expects the bank to treat his account with the utmost fidelity, whether such account consists only of a few hundred pesos or of millions. The bank must record every single transaction accurately, down to the last centavo, and as promptly as possible. This has to be done if the account is to reflect at any given time the amount of money the depositor can dispose as he sees fit, confident that the bank will deliver it as and to whomever he directs. A blunder on the part of the bank, such as the failure to duly credit him his deposits as soon as they are made, can cause the depositor not a little embarrassment if not financial loss and perhaps even civil and criminal litigation [Simex International v. CA, G.R. No. 88013 (1990)]. This fiduciary relationship means that the bank’s obligation to observe “high standards of integrity and performance” is deemed written into every deposit agreement between a bank and its depositor [Philippine Banking Corporation vs. CA, G.R. No. 127469, January 15, 2004]. Banks are expected to exercise the highest degree of diligence in the selection and supervision of their employees [Philippine Commercial International Bank v. CA, G.R. No. 121413, 121479 and 128604 (2001)]. It cannot be over emphasized that the banking business is impressed with public interest. Of paramount importance is the

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trust and confidence of the public in general in the banking industry. Consequently, the diligence required of banks is more than that of a Roman pater familias or a good father of a family. The highest degree of diligence is expected [Phil. Savings Bank v. Chowking Food Corporation, G.R. No. 177526 (2008) The banking business is so impressed with public interest where the trust and confidence of the public in general is of paramount importance such that the appropriate standard of diligence must be a high degree of diligence, if not the utmost diligence [Bank of America NT&SA v. Phil. Racing Club, GR No. 150228 (2009)]. Under the doctrine of last clear chance, a bank may be held liable for loss despite the negligence of a depositor. Examples of these cases are the following: (1) For disbursing funds to a dishonest employee despite the employee’s failure to strictly abide with the bank’s internal procedure. [Philippine Bank of Commerce v. CA, G.R. No. 97626 (1997)] (2) Allowing the execution of a mortgage on parcels of land as security for a loan not owned by the prospective borrower. [Canlas v. CA, G.R. No. 112160 (2000)] (3) Crediting the deposit in favor of another depositor, a check where the signature of the drawer was forged. [Westmont Bank v. Ong, G.R. No. 132560 (2002)]

G. NATURE OF BANK FUNDS AND BANK DEPOSITS The relationship between a depositor and a bank is that of a creditor and debtor in relation to the bank’s deposit functions [Gullas vs. PNB, G.R. No. L-43191, (1935)] and not that of depositor and depositary. The contract between the bank and its depositor is governed by the provisions of the NCC on simple loan [Consolidated Bank and Trust Corporation vs. CA, G.R. No. 138569 (2003)]. Bank deposits are in the nature of irregular deposits [Serrano vs. Central Bank, G.R. No. L-

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30511 (1980)]. Therefore, Art. 1287 of the Civil Code, which prohibits compensation when one of the debts arises from depositum, does not apply. Current and savings deposits are loans to a bank because the bank can use the same and they earn interest [BPI vs. CA, G.R. No. 104612 (1994)]. The relationship being contractual in nature, mandamus is therefore not an available remedy since mandamus does not lie to enforce the performance of contractual obligations [Maclaring Lucman vs. Alimatar Malawi, G.R. No. 159794 (2006)] Money deposited is commingled with other money constituting a common fund.

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General rule: A bank must conform to the risk-based capital ratio prescribed by the MB Expectations: The MB may alter or suspend compliance with such ratio whenever necessary for a maximum period of 1 year. (1) In case of a bank merger or consolidation; OR (2) When a bank is under rehabilitation under a program approved by the BSP; [Sec. 34] I.2. PURPOSE A bank must not be allowed to expand the volume of its loans and investments in a manner that is disproportionate to its net worth. [Morales (2004)]

H. STIPULATION ON INTERESTS The Monetary Board may prescribe the maturities, as well as related terms and conditions for various types of bank loans and other credit accommodations. Any change by the Board in the maximum maturities shall apply only to loans and other credit accommodations made after the date of such action. The Monetary Board shall regulate the interest imposed on micro finance borrowers by lending investors and similar lenders such as, but not limited to, the unconscionable rates of interest collected on salary loans and similar credit accommodations [Sec. 43, GBL]

I. GRANT OF LOANS AND SECURITY REQUIREMENTS (PRUDENTIAL MEASURES) I.1. RATIO OF NET WORTH TO TOTAL RISK ASSETS Concept: The minimum ratio which the net worth of a bank must bear to its total risk assets which may include contingent accounts [i.e. net worth: total risk assets] [Sec. 34, GBL]

I.3. EFFECT OF NON-COMPLIANCE (1) The MB may limit or prohibit the distribution of net profits by such bank and may require that part or all of the net profits be used to increase the capital accounts of the bank until the minimum requirement has been met. (2) The MB may restrict or prohibit the acquisition of major assets and the making of new investments by the bank, with the exception of purchases of readily marketable evidences of indebtedness of the RP and the BSP and any other evidences of indebtedness or obligations the servicing and repayment of which are fully guaranteed by the RP, until the minimum required capital ratio has been restored. [Sec. 34, GBL] I.4. SINGLE BORROWER’S LIMIT General rule: The total loans, credit accommodations and guarantees that may be extended by a bank to any person, partnership, association, or corporation or other entity shall at no time exceed 20% of the net worth of such bank. [Sec. 35.1, GBL] Exceptions: (1) The Monetary Board otherwise prescribes for reasons of national interest. [Sec. 35.1] Now, the single borrower’s limit is 25% of the net worth of the lending bank.

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(2) Wholesale lending activities of government banks to participating institutions for relending to end-user borrowers: separate limit of 35% net worth. [BSP Circular No. 425 dated March 25, 2004] I. INCREASE OF LIMIT The Monetary Board may increase the limit prescribed by an additional 10% of the net worth, when: (1) The additional liabilities of any borrower are adequately secured by trust receipts, shipping documents, warehouse receipts or other similar documents transferring or securing title; (2) Covering readily marketable, perishable goods; and

non-

(3) Which must be fully covered by insurance [Sec. 35.2] II. PURPOSE To prevent the bank from making excessive loans and other credit accommodations to a single borrower or corporate group, including guarantees for the account of such borrower or group. The bank is prohibited from… placing many eggs in the basket of one client. [It] is a damage-control mechanism [and] a device for risk amelioration. [Morales (2004)] III. BASIS COMPLIANCE

FOR

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corporation, partnership, association or any other entity, the liabilities of said entities to such bank; (3) In the case of a corporation, all liabilities to such bank of all subsidiaries in which such corporation owns or controls a majority interest; and (4) In the case of a partnership, association or other entity, the liabilities of the members thereof to such bank. [Sec. 35.3, GBL] V. GUIDELINES ON THE W HOLESALE LENDING OF GOVERNM ENT BANKS (1) It shall apply only to loans granted by participating financial institutions [PFIs] on a wholesale basis for on-lending to end-user borrowers; (2) It shall apply only to loan programs funded by multilateral, international, or local development agencies, organizations, or institutions, especially designed for wholesale lending activities of government banks; (3) The end-user borrowers of the PFIs shall be subject to the 25% SBL, not the increased ceiling of 35%; and (4) Government banks shall observe appropriate criteria for accrediting PFIs and for the grant/renewal of credit lines to accredited PFIs. [BSP Circular No. 425 dated March 25, 2004]

DETERMINING

The basis for determining compliance with the SBL is the total credit commitment of the bank to the borrower. [Sec. 35.1, GBL]

VI. EXCLUSIONS FROM THE CEILING (NON-RISK LOANS) Loans and other credit accommodations— (1) Secured by obligations of the BSP or of the Philippine Government;

IV. INCLUSIONS IN THE CEILING (1) The direct liability of the maker or acceptor of paper discounted with or sold to such bank and the liability of a general indorser, drawer or guarantor who obtains a loan or other credit accommodation from or discounts paper with or sells papers to such bank; (2) In the case of an individual who owns or controls a majority interest in a

(2) Fully guaranteed by the government as to the payment of principal and interest; (3) Covered by assignment of deposits maintained in the lending bank and held in the Philippines; (4) Under letters of credits to the extent covered by margin deposits; and (5) Specified by the Monetary Board as nonrisk items [Sec. 35.5, GBL]

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VII. COMBINATION OF LIABILITIES The MB may prescribe the combination of the liabilities of subsidiary corporations or members of the partnership, association, entity or such individual under certain circumstances, including but not limited to any of the following situations: (1) The parent-corporation, partnership, association, entity or individual guarantees the repayment of the liabilities; (2) The liabilities were incurred for the accommodation of the parent corporation or another subsidiary or of the partnership or association or entity or such individual; or (3) The subsidiaries though separate entities operate merely as departments or divisions of a single entity. [Sec. 35.4, GBL] Loans and other credit accommodations, deposits maintained with, and usual guarantees by a bank to any other bank or non-bank entity, whether locally or abroad, shall be subject to the prescribed limits. [Sec. 35.6, GBL] I.5. RESTRICTIONS ON BANK EXPOSURE TO DOSRI (DIRECTORS, OFFICERS, STOCKHOLDERS, AND THEIR RELATED INTERESTS) General rule [Sec. 36, GBL]: No director or officer of any bank— (1) Shall, directly or indirectly, for himself or as the representative or agent of others, borrow from such bank, nor (2) Shall he become a guarantor, endorser or surety for loans from such bank to others, or in any manner be an obligor or incur any contractual liability to the bank Exceptions [SEC. 36, GBL]:

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I. REQUIREMENTS INSIDER LENDING

FOR

VALID

(1) In the regular course of business; (2) Upon terms not less favorable to the bank than those offered to others; (3) There is a written approval of the majority of all the directors of the bank, excluding the director concerned. Exception: Not required where granted to officers under a fringe benefit plan approved by the BSP; (4) The required approval shall be entered upon the record of the bank and a copy of such entry shall be transmitted forthwith to the appropriate supervising and examining department of the BSP; (5) Limited to an amount equivalent to the DOSRI borrower’s unencumbered deposits and book value of his paid-in capital contribution in the bank [Sec. 36] II. EXCEPTIONS [SEC. 36, GBL]: (1) Non-risk items; and (2) Loans in the form of fringe benefits. III. W AIVER OF BANK SECRECY A DOSRI borrower is required to waive the secrecy of his deposits of whatever nature in all banks in the Philippines. [Sec. 26, NCBA] IV. PURPOSE The general policy behind DOSRI rules is to level the lending field between the “insiders” and the “outsiders”. The objective is to prevent the bank from becoming a captive source of finance for DOSRI. [Morales (2004)] I.6. LOAN-LOSS PROVISIONING

(1) Valid insider lending; (2) Loans, credit accommodations and guarantees extended by a cooperative bank to its cooperative shareholders.

The following are subject to regulation by the Monetary Board: (1) The amount of reserves for bad debts or doubtful accounts or other contingencies; and

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(2) The writing off of loans, other credit accommodations, advances and other assets. [Sec. 49, GBL]

Circular No. 444 dated August 18, 2004] (b) For foreign currency deposit units: 100% [BSP Circular No. 1389 dated April 13, 1993, as amended]; 30% of this cover must be in the form of liquid assets [BSP Circular-Letter dated June 6, 1997, as cited in Morales (2004)]

I. PURPOSE For effective banking supervision. There is a problem of mismatch when a loan becomes non-performing. The bank is paying interest on the money it borrowed from the depositors or other placers of funds, but is not recouping that interest from the loan it made. Eventually, the bank may have to write off loan losses against profits. To cushion this eventuality, the bank is required to set aside reserved for bad debts and other doubtful accounts or contingencies. [Morales (2004)] To address the non-performing asset problem, RA 9182 Special Purpose Vehicle Act was passed. The Monetary Board approved certain accounting guidelines on the sale by banks and other financial institutions for housing under the said Act. [Morales (2004)] [N.B. RA 9182 is no longer in effect.]

(2) Reserve: The required reserves are to be kept in the form of deposits placed in the banks’ Demand Deposit Account with the BSP [BSP Circular No. 753 dated March 29, 2012] III. INTEREST ON RESERVES [SEC. 94, NCBA] General rule: The BSP shall not pay interest on the reserves maintained with it. Exception: Unless the Monetary Board decides otherwise as warranted by circumstances. I.8. PDIC INSURANCE

I.7. RESERVES

I. CONCEPT

I. PURPOSES (1) To control the volume of money created by the credit operations of the banking system, the BSP requires all banks to maintain reserves against their deposit and deposit-substitute liabilities.

Banks are required to insure their deposit liabilities with the PDIC [Philippine Deposit Insurance Corporation]. II. PARTIAL INSURANCE

(2) As a ready source of funds that will respond to unusually large number of withdrawals or preterminations of deposits or deposit-substitutes, taking in the shape of a bank run. [Morales (2004)]

Each depositor is a beneficiary of the insurance for a maximum amount of P500,000, or its foreign currency equivalent in the case of an FCDU deposit. [Act Amending PDIC Charter, 2009, RA 9576]

II. UNIFIED RESERVE

III. COVERAGE

(1) Statutory or legal and liquidity reserve [N.B. The two reserves have been combined or unified: 18% for deposits and deposit substitutes] [BSP Circular No. 753 dated March 29, 2012]

PDIC only insures deposit [not deposit substitute] liabilities of a bank or banking institution [Sec. 5, RA 3591, as amended]

(a) For deposit-substitutes evidenced by repurchase agreements covering government securities: 2% [BSP

IV. PURPOSE Full insurance might encourage risky banking activities. A limited insurance of bank deposits serves to limit moral hazard.

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I.9. EQUITY INVESTMENT LIMITS (ALLIED VS. NON-ALLIED) This is a prudential measure by limiting the exposure of banks in different businesses for the purpose of control, affiliation or other continuing business advantage. General Rule

Total investment in equities:

The equity investment in any one enterprise:

UB [Sec. 24]

KB [Sec. 30]

[Allied & NonAllied enterprises]

[of Allied enterprises]

Not exceeding 50% of the net worth of the bank [Allied/NonAllied] Not exceeding 25% of the net worth of the bank

Not exceeding 35% of the net worth of the bank

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(1) Financial Allied Enterprises – Up to 100% of the equity in a thrift bank, rural bank, or financial allied enterprise. A publicly-listed UB or KN may own up to 100% of the voting stock of only one other UB or KB. [Sec. 25, GBL] (2) Non-Financial Allied Enterprises – Up to 100% of the equity of that enterprise [Sec. 26, GBL] (3) Non-Allied Enterprises – Not exceeding 35% of the total equity in a single non-allied enterprise not shall it exceed 35% of the voting stock in that enterprise. This extends to investments by the UB’s wholly or majority-owned subsidiaries. [Sec 27 GBL] (4) Quasi-banks – 40% of the equity of quasi-banks [Sec. 28, GBL]

[Allied] Not exceeding 25% of the net worth of the bank

Net Worth – The total of the unimpaired paidin capital including paid-in surplus, retained earnings and undivided profit, net of valuation reserves and other adjustments. [Sec. 24, GBL]

The equity investment of Commercial Banks in— (1) Financial Allied enterprises – Up to 100% of the equity of a thrift or rural bank. [Sec 31 GBL]. Special rule: Where the equity investment of a KB is in other financial allied enterprises, including other KBs, such investment shall remain a minority holding in that enterprise. [Sec. 31, GBL]

The acquisition of such equity is subject to the prior approval of the MB. [Sec. 24, GBL]

(2) Non-Financial Allied enterprises – Up to 100% of the equity of said enterprises. [Sec. 32, GBL]

The equity investment of a Universal Bank in—

(3) Quasi-banks – 40% of the equity of quasi-banks. [Sec. 28, GBL]

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I. Intellectual Property Rights in General A. STATE POLICIES A.1. INTELLECTUAL PROPERTY CODE (1) To protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act. (2) To promote the diffusion of knowledge and information for the promotion of national development and progress and the common good. (3) To streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines. [Sec. 2, RA 8293]

A.2. 1987 CONSTITUTION (1)

The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. [Art. XII, Sec. 6] (2) The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs,

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professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. [Art. XII, Sec. 14] (3) The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law. [Art. XIV, Sec. 13]

B. INTERNATIONAL CONVENTIONS GOVERNING INTELLECTUAL PROPERTY RIGHTS (1) Berne Convention for the Protection of Literary and Artistic Works as revised by the Brussels Act (August 1, 1951) (2) Paris Convention for the Protection of Industrial Property Rights (September 27, 1965) (3) International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention, September 25, 2984) (4) Convention Establishing the World Intellectual Property Organization (July 14, 1980) (5) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (October 21, 1981) (6) Agreement on Trade Related Aspects of Intellectual Property Including Trade in Counterfeit Goods of General Agreement on Tariffs and Trade. (7) Patent Cooperation Treaty (August 17, 2001) (8) Madrid Protocol

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C. INTELLECTUAL RIGHTS

INTELLECTUAL PROPERTY LAW

PROPERTY

C.1. DEFINITION Those property rights which result from the physical manifestation of original thought. [Ballantine’s Law Dictionary] Note: There are no property rights protected by law in mere ideas or mental conceptions. When creations of mind are put in tangible form, there is appropriate subject of property that is protected by law. [63A Am Jur 3rd Property, Section 5]

C.2. INTELLECTUAL PROPERTY RIGHTS UNDER THE INTELLECTUAL PROPERTY CODE (1) (2) (3) (4) (5) (6) (7)

Copyright; Related Rights of copyright; Trademarks and Service Marks; Geographic Indications; Industrial Designs; Patents; Layout-Designs (Topographies) of Integrated Circuits; [Sec. 4, RA 8293] (8) Protection of Undisclosed Information (TRIPS Agreement).

D. DIFFERENCES BETWEEN COPYRIGHTS, TRADEMARKS AND PATENT D.1. PATENTABLE INVENTIONS Refer to any technical solution of a problem in any field of human activity, which is new, involves an inventive step and is industrially applicable. It may be, or refer to, any product, process, or an improvement of any of the foregoing. [Sec. 21, RA 8293] It is vested from the issuance of letters of patent.

D.2. TRADEMARK Any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a

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stamped or marked container of goods. [Kho v. CA, G.R. No. 115758 (2002)] It is vested from registration.

D.3. TRADE NAME The name or designation identifying or distinguishing an enterprise [Sec. 121.3, RA 8293]

D.4. COPYRIGHT Right granted by statute to the author or originator of literary, scholarly, scientific, or artistic productions, including computer programs. A copyright gives him the legal right to determine how the work is used and to obtain economic benefits from the work. For example, the owner of a copyright for a book or a piece of software has the exclusive rights to use, copy, distribute, and sell copies of the work, including later editions or versions of the work. If another person improperly uses material covered by a copyright, the copyright owner can obtain legal relief. [Rule 2, Copyright Safeguards and Regulations] Copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts: (1) Reproduction of the work or substantial portion of the work (2) Dramatization, translation or adaptation, abridgment, arrangement or other transformation of the work. (3) The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership. (4) Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental.

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(5) Public Display of the original or a copy of the work. (6) Public Performance of the Work; (7) Other Communication to the public of the work. [Sec. 177, IPC] Copyright is confined to literary and artistic works which are original intellectual creations in the literary and artistic domain protected from the moment of their creation. [Kho v. CA, G.R. No. 115758 (2002)] It is vested from the moment of creation.

D.5. OTHER FORMS INTELLECTUAL PROPERTY

OF

i. Geographic Indication One which identifies a good as originating in the territory of a TRIPS member, or a region or locality in that territory where a given quality, reputation or other characteristic of a good is essentially attributable to its geographical origin [Art. 22, TRIPS Agreement] ii. Industrial Design Any composition of lines or colors or any three-dimensional form, whether or not associated with lines or colors: Provided, that such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft. (Sec. 112.1, RA 8293) iii. Layout Design (Topography) of an Integrated Circuit Layout Design (Topography) — The three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture. (Sec. 112.3, RA 8293)

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iv. Integrated Circuit —a product, in its final form, or an intermediate form, in which the elements, at least one of which is an active element and some or all of the interconnections are integrally formed and/or on a piece of material, and which is intended to perform an electronic function. (Sec. 112.2, RA 8293) v. Undisclosed Inform ation Information which: (1) Is a secret in a sense that it is not, as a body or in the precise configuration and assembly of components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (2) Has a commercial value because it is secret; and (3) Has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret [Art. 39, TRIPS]

E. TECHNOLOGY ARRANGEMENTS

TRANSFER

Refers to contracts or agreements involving: (1) the transfer of systematic knowledge for the manufacture of a product; (2) the application of a process, or rendering of a service including management contracts; (3) The transfer, assignment or licensing of all forms of intellectual property rights, including licensing of computer software except computer software developed for mass market. [Sec. 4.2, RA 8293]

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II. Patents

both applications are not one and the same. [Sec. 24.2, RA 8293]

A. WHAT ARE PATENTABLE? (1) (2) (3) (4)

Inventions Utility Model Industrial Designs Lay-Out Designs (Topographies Integrated Circuits)

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of

A.1. INVENTIONS A patentable invention is any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be Patentable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing. [Sec. 21, RA 8293] Standards of Patentable Inventions (1) Novelty — An invention shall not be considered new if it forms part of a prior art. [Sec. 23, RA 8293] Prior art shall consist of: (1) Everything which has been made available to the public anywhere in the world, before the filing date or the priority date of the application claiming the invention; [Sec. 24.1, RA 8293] (2) The whole contents of an application for a patent, utility model, or industrial design registration, published in accordance with this Act, filed or effective in the Philippines, with a filing or priority date that is earlier than the filing or priority date of the application: Provided, That the application which has validly claimed the filing date of an earlier application under Section 31 of this Act, shall be prior art with effect as of the filing date of such earlier application: Provided further, That the applicant or the inventor identified in

Non-Prejudicial Disclosures –This is an exception to the General Rule on Prior Art under Sec. 24. It provides that the disclosure of the information contained in the application during the 12 months preceding the filing date or the priority date of the application shall not prejudice the applicant on the ground of lack of novelty if such disclosure was made by: (1) The inventor (2) A patent office and the information contained (1) in another application filed by the inventor and should not have been disclosed by the office, or (2) in an application filed without the knowledge or consent of the inventor by a third party which obtained the information directly or indirectly from the inventor (3) A third party which obtained the information directly or indirectly from the inventor [Sec. 25, RA 8293] An invention must possess the essential elements of novelty, originality and precedence and for the patentee to be entitled to protection, the invention must be new to the world. [Maguan vs. CA, G.R. L45101 (1986)] (2) Inventive Step — An invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date of the application claiming the invention. [Sec. 26.1, RA 8293, as amended by RA 9502] Cheaper Medicines Act – In case of drugs and medicines, there is no inventive step if the invention results from the mere discovery of a new form or new property of a known substance which does not result in enhancement of the known efficacy of that substance, or the mere discovery of any new property or new use of a known substance

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or the mere use of a known process unless such known process results in a new product that employs at least one reactant. [Sec. 26.2, RA 8293 as amended by RA 9502] (3) Industrial Applicability — An invention that can be produced and used in any industry shall be industrially applicable. [Sec. 27, RA 8293]

A.2. UTILITY MODEL It is any technical solution of a problem in any field of human activity which is new and industrially applicable. Unlike an invention patent, a utility model need not be inventive. The law merely requires that it be novel and industrially applicable. [Sec. 109.1, RA 8293] A utility model registration shall expire, without any possibility of renewal, at the end of the seventh year after the date of the filing of the application. [Sec. 109.3, RA 8293] Statutory Classes of Utility Models A Utility Model may be, or may relate to: (1) A useful machine; (2) An implement or tool; (3) A product or composition; (4) A method or process; or (5) An improvement of any of the foregoing. [Rule 201, Rules and Regulations on Utility Models and Industrial Designs as amended] Grounds for Cancellation of Utility Models

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(3) That any drawing which is necessary for the understanding of the invention has not been furnished; (4) That the owner of the utility model registration is not the inventor or his successor in title [Sec 109.4, RA 8293]

A.3. INDUSTRIAL DESIGNS An industrial design is any composition of lines or colors or any three-dimensional form, whether or not associated with lines or colors: Provided that such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft. [Sec. 112.1, RA 8293 as amended by RA 9150]

A.4. LAY-OUT (TOPOGRAPHIES OF CIRCUITS)

DESIGNS INTEGRATED

Integrated Circuit means a product, in its final form, or an intermediate form, in which the elements, at least one of which is an active element and some or all of the interconnections are integrally formed in and/or on a piece of material, and which is intended to perform an electronic function. [Sec. 112.2, RA 8293 as amended by RA 9150] Layout-Design is synonymous with 'Topography' and means the threedimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture. [Sec. 112.3, RA 8293 as amended by RA 9150]

(1) That the claimed invention does not qualify for registration as a utility model and does not meet the requirements of registrability; (2) That the description and the claims do not comply with the prescribed requirements; PAGE 261 OF 320

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B. NON-PATENTABLE INVENTIONS

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Cheaper Medicines Act: In addition to discoveries, scientific theories and mathematical methods, the IP Code now includes (as non-patentable), in case of drugs and medicines: (1) The mere discovery of a new form or new property of a known substance which does not result in the enhancement of the known efficacy of that substance (2) the mere discovery of any new property or new use of a known substance (3) the mere use of a known process unless such known process results in a new product that employs at least one reactant [Sec. 26.2, RA 8293 as amended by RA 9502]

The following shall be excluded from patent protection: (1) Discoveries, scientific theories and mathematical methods, and in the case of drugs and medicines, the mere discovery of a new form or new property of a known substance which does not result in the enhancement of the known efficacy of that substance, or the mere discovery of any new property or new use for a known substance, or the mere use of a known process unless such known process results in a new product that employs at least one new reactant. Salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, C. OWNERSHIP OF A PATENT complexes, combinations, and other derivatives of a known substance shall C.1. RIGHT TO A PATENT be considered to be the same substance, unless they differ significantly in General Rule: The right to patent belongs properties with regard to efficacy; [Sec. to the inventor, his heirs, or assigns. When 22.1, RA 8293 as amended by RA 9502] two (2) or more persons have jointly made (2) Schemes, rules and methods of an invention, the right to a patent shall performing mental acts, playing games belong to them jointly. [Sec.28, RA 8293] or doing business, and programs for computers; [Sec. 22.2, RA 8293] Exception: Inventions created pursuant to (3) Methods for treatment of the human or a commission (Work for Hire Doctrine) animal body by surgery or therapy and (1) The employer has the right to the diagnostic methods practiced on the patent if the invention is the result of human or animal body. This provision the performance of the employee’s shall not apply to products and regularly assigned duties [Sec. 30.2, RA composition for use in any of these 8293] methods; [Sec. 22.3, RA 8293] (2) In case of inventions created pursuant (4) Plant varieties or animal breeds or to a commission, the person who essentially biological process for the commissions the work shall own the production of plants or animals. This patent [Sec. 30.1, RA 8293] provision shall not apply to microorganisms and non-biological and C.2. FIRST-TO-FILE RULE microbiological processes; [Sec. 22.4, RA 8293] If two (2) or more persons have made the (5) Aesthetic creations; [Sec. 22.5, RA invention separately and independently of 8293] each other, the right to the patent shall (6) Anything which is contrary to public belong to the person who filed an order or morality. [Sec. 22.6, RA 8293] PAGE 262 OF 320

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application for such invention, or where two or more applications are filed for the same invention, to the applicant who has the earliest filing date or, the earliest priority date. [Sec. 29, RA 8293]

C.3. INVENTIONS CREATED PURSUANT TO A COMMISSION Commission: Person who commissions the work shall own the patent, unless otherwise provided in the contract [Sec. 30.1, RA 8293) Employm ent Contract: Patent belongs to the employee if the inventive activity is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer. [Sec. 30.2 (a), RA 8293] Patent belongs to the employer if the invention is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary. [Sec. 30.2 (b), RA 8293]

C.4. RIGHT OF PRIORITY An application for patent filed by any person who has previously applied for the same invention in another country which by treaty, convention, or law affords similar privileges to Filipino citizens, shall be considered as filed as of the date of filing the foreign application: Provided, That: (a) the local application expressly claims priority; (b) it is filed within twelve (12) months from the date the earliest foreign application was filed; and (c) a certified copy of the foreign application together with an English translation is filed within six (6) months from the date of filing in the Philippines. [Sec. 31, RA 8293]

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C.5. REMEDY OF PERSONS NOT HAVING THE RIGHT TO A PATENT If a person other than the applicant, is declared by final court order or decision as having the right to the patent, such person may, within three (3) months after the decision has become final: (1) Prosecute the application as his own application in place of the applicant; (2) File a new patent application in respect of the same invention; (3) Request that the application be refused; or (4) Seek cancellation of the patent, if one has already been issued. [Sec. 67, RA 8293]

D. TERM OF PATENT D.1. TERM OF INVENTION PATENT The term of a patent shall be twenty (20) years from the filing date of the application. [Sec. 54, RA 8293] A patent shall take effect on the date of the publication of the grant of the patent in the IPO Gazette. [Sec. 50.3, RA 8293]

D.2. TERM OF UTILITY MODEL A utility model registration shall expire, without any possibility of renewal, at the end of the seventh year after the date of the filing of the application. [Sec. 109.3, RA 8293]

D.3. TERM OF INDUSTRIAL DESIGN The registration of an industrial design shall be for a period of five (5) years from the filing date of the application. [Sec. 118.1, RA 8293]

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E. CANCELLATION OF PATENT

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covered thereby, as appears of record in the Office, and of notice of the date of hearing thereon on such persons and the petitioner. Notice of the filing of the petition shall be published in the IPO Gazette. [Sec. 63, RA 8293]

E.1. GROUNDS FOR CANCELLATION OF A PATENT Any interested person may, upon payment of the required fee, petition to cancel the patent or any claim thereof, or parts of the claim, on any of the following grounds: (1) That what is claimed as the invention is not new or patentable; (2) That the patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by any person skilled in the art; or (3) That the patent is contrary to public order or morality. [Sec. 61.1, RA 8293] Where the grounds for cancellation relate to some of the claims or parts of the claim, cancellation may be effected to such extent only. [Sec. 61.2, RA 8293]

E.2. REQUIREMENT OF THE PETITION The petition for cancellation shall be in writing, verified by the petitioner or by any person in his behalf who knows the facts, specify the grounds upon which it is based, include a statement of the facts to be relied upon, and filed with the Office. Copies of printed publications or of patents of other countries, and other supporting documents mentioned in the petition shall be attached thereto, together with the translation thereof in English, if not in English language. [Sec. 62, RA 8293]

E.3. NOTICE OF HEARING

E.4. EFFECT OF CANCELLATION OF PATENT OR CLAIM The rights conferred by the patent or any specified claim or claims cancelled shall terminate. Notice of the cancellation shall be published in the IPO Gazette. Unless restrained by the Director General, the decision or order to cancel by Director of Legal Affairs shall be immediately executory even pending appeal. [Sec. 66, RA 8293]

F. REMEDY OF THE TRUE AND ACTUAL INVENTOR If a person, who was deprived of the patent without his consent or through fraud is declared by final court order or decision to be the true and actual inventor, the court shall order for his substitution as patentee, or at the option of the true inventor, cancel the patent, and award actual and other damages in his favor if warranted by the circumstances. [Sec. 68, RA 8293]

F.1. TIME TO FILE ACTION IN COURT The action shall be filed within one (1) year from the date of publication made in accordance with Sections 44 and 51, respectively. (Sec. 70, RA 8293)

Upon filing of a petition for cancellation, the Director of Legal Affairs shall forthwith serve notice of the filing thereof upon the patentee and all persons having grants or licenses, or any other right, title or interest in and to the patent and the invention PAGE 264 OF 320

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G. RIGHTS CONFERRED BY A PATENT

H. LIMITATIONS OF PATENT RIGHTS

A patent shall confer on its owner the following exclusive rights: (1) Where the subject matter of a patent is a product, to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product. [Sec. 71.1(a), RA 8293] (2) Where the subject matter of a patent is a process, to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process. [Sec. 71.1(b), RA 8293] (3) Patent owners shall also have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same. [Sec. 71.2, RA 8293]

The owner of a patent has no right to prevent third parties from performing, without his authorization, the acts referred to in Section 71 hereof in the following circumstances: (1) Using a patented product which has been put on the market in the Philippines by the owner of the product, or with his express consent, insofar as such use is performed after that product has been so put on the said market: Provided, That, with regard to drugs and medicines, the limitation on patent rights shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention: Provided, further, That the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party; [Sec. 72.1, RA 8293 as amended by RA 9502] (2) Where the act is done privately and on a non-commercial scale or for a noncommercial purpose: Provided, That it does not significantly prejudice the economic interests of the owner of the patent; [Sec. 72.2, RA 8293 as amended by RA 9502] (3) Where the act consists of making or using exclusively for experimental use of the invention for scientific purposes or educational purposes and such other activities directly related to such scientific or educational experimental use; [Sec. 72.3, RA 8293 as amended by RA 9502] (4) In the case of drugs and medicines, where the act includes testing, using, making or selling the invention including any data related thereto,

To be able to effectively and legally preclude others from copying and profiting from the invention, a patent is a primordial requirement. No patent, no protection. The ultimate goal of a patent system is to bring new designs and technologies into the public domain through disclosure Ideas, once disclosed to the public without the protection of a valid patent, are subject to appropriation without significant restraint. [Pearl Dean, Inc. v. Shoemart, Inc., G.R. No. 148222 (2003)]

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solely for purposes reasonably related to the development and submission of information and issuance of approvals by government regulatory agencies required under any law of the Philippines or of another country that regulates the manufacture, construction, use or sale of any product: Provided, That, in order to protect the data submitted by the original patent holder from unfair commercial use provided in Article 39.3 of the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS Agreement), the Intellectual Property Office, in consultation with the appropriate government agencies, shall issue the appropriate rules and regulations necessary therein not later than one hundred twenty (120) days after the enactment of this law; (Sec. 72.4, RA 8293 as amended by RA 9502) (5) Where the act consists of the preparation for individual cases, in a pharmacy or by a medical professional, of a medicine in accordance with a medical shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention: Provided, further, That the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party; (Sec. 72.5, RA 8293 as amended by RA 9502) There shall be no infringement of trademarks or tradenames of imported or sold drugs and medicines allowed as well as imported or sold off-patent drugs and medicines: Provided, That said drugs and medicines bear the registered marks that have not been tampered, unlawfully

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modified, or infringed. (Sec.159.4 RA 8293 as amended by RA 9502)

H.1. PRIOR USER Notwithstanding Section 72 hereof, any prior user, who, in good faith was using the invention or has undertaken serious preparations to use the invention in his enterprise or business, before the filing date or priority date of the application on which a patent is granted, shall have the right to continue the use thereof as envisaged in such preparations within the territory where the patent produces its effect. [Sec. 73.1, RA 8293] The right of the prior user may only be transferred or assigned together with his enterprise or business, or with that part of his enterprise or business in which the use or preparations for use have been made. [Sec. 73.2, RA 8293]

H.2. USE BY THE GOVERNMENT A Government agency or third person authorized by the Government may exploit the invention even without agreement of the patent owner where: (1) The public interest, in particular, national security, nutrition, health or the development of other sectors, as determined by the appropriate agency of the government, so requires; [Sec. 74.1(a), RA 8293] (2) A judicial or administrative body has determined that the manner of exploitation, by the owner of the patent or his licensee, is anti-competitive. [Sec. 74.1(b), RA 8293] The use by the Government, or third person authorized by the Government shall be subject, mutatis mutandis, to the conditions set forth in Sections 95 to 97 and 100 to 102

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on compulsory licensing. [Sec. 74.2, RA 8293]

Burke,in Notes on Selected Commercial Laws, Catindig 2003 ed.]

All cases arising from the implementation of this provision shall be cognizable by courts with appropriate jurisdiction provided by law. No court except the Supreme Court of the Philippines, shall issue any temporary restraining order or preliminary injunction or such other provisional remedies that will prevent its immediate execution. [Sec. 74.3, RA 8293 as amended by RA 9502]

I.3. TESTS IN PATENT INFRINGEMENT

I. PATENT INFRINGEMENT It is the making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization of the patentee. [Sec 76.1, RA 8293 as amended by RA 9502]

I.1. CONTRIBUTORY INFRINGER One who actively induces the infringement of a patent or provides the infringer with a component of a patented product or of a product produced because of a patented process knowing it to be especially adopted for infringing and not suitable for substantial non-infringing. He is jointly and severally liable with the infringer. [Sec. 76.6, RA 8293]

I.2. DOCTRINE EXHAUSTION

OF

PATENT

It espouses that the patentee who has already sold his invention and has received all the royalty and consideration for the same will be deemed to have released the invention from his monopoly. The invention thus becomes open to use of the purchaser without further restriction. [Adams v.

i. Literal infringem ent In using literal infringement as a test, resort must be had in the first instance to the words of the claim. To determine whether the particular item falls within the literal meaning of the patent claims, the court must juxtapose the claims of the patent and the accused product within the overall context of the claims and specifications, to determine whether there is exact identity of all material elements. [Godinez v. CA, G.R. No. L-97343 (1993)] ii. Doctrine of equivalents Under the doctrine of equivalents, an infringement also occurs when a device appropriates a prior invention by incorporating its innovative concept and, albeit with some modification and change, performs substantially the same function in substantially the same way to achieve substantially the same result. [Godinez v. CA, G.R. No. L-97343 (1993)] In order to infringe a patent, a machine or device must perform the same function, or accomplish the same result by identical or substantially identical means and the principle or mode of operation must be substantially the same. [Del Rosario v. CA, G.R. No. 115106 (1996)] The doctrine of equivalents provides that an infringement also takes place when a device appropriates a prior invention by incorporating its innovative concept and, although with some modification and change, performs substantially the same function in substantially the same way to achieve substantially the same result. The principle or mode of operation must be the same or substantially the same. The

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doctrine of equivalents thus requires satisfaction of the function-means-andresult test, the patentee having the burden to show that all three components of such equivalency test are met. [Smith Klein Beckman Corp. v. CA, G. R. No. 126627 (2003)]

I.4. CRIMINAL ACTION FOR REPETITION OF INFRINGEMENT If infringement is repeated by the infringer or by anyone in connivance with him after finality of the judgment of the court against the infringer, the offenders shall, without prejudice to the institution of a civil action for damages, be criminally liable therefor and, upon conviction, shall suffer imprisonment for the period of not less than six (6) months but not more than three (3) years and/or a fine of not less than One hundred thousand pesos (P100,000) but not more than Three hundred thousand pesos (P300,000), at the discretion of the court. The criminal action herein provided shall prescribe in three (3) years from date of the commission of the crime. [Sec. 84, RA 8293]

I.5. INFRINGEMENT FOREIGN NATIONAL

ACTION

BY

Any foreign national or juridical entity who meets the requirements of Section 3 (RA 8293) and not engaged in business in the Philippines, to which a patent has been granted or assigned under RA 8293, may bring an action for infringement of patent, whether or not it is licensed to do business in the Philippines under existing law. [Sec. 77, RA 8293]

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agreement relating to intellectual property rights or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to nationals of the Philippines by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of an intellectual property right is otherwise entitled by this Act. [Sec. 3, RA 8293]

I.6. DEFENSES INFRINGEMENT

IN

ACTION

FOR

In an action for infringement, the defendant, in addition to other defenses available to him, may show the invalidity of the patent, or any claim thereof, on any of the grounds on which a petition of cancellation can be brought under Section 61. [Sec 81, RA 8293] i. Patent found invalid m ay be cancelled: In an action for infringement, if the court shall find the patent or any claim to be invalid, it shall cancel the same, and the Director of Legal Affairs upon receipt of the final judgment of cancellation by the court, shall record that fact in the register of the Office and shall publish a notice to that effect in the IPO Gazette. [Sec 82, RA 8293] ii. Doctrine of File W rapper Estoppel Patentee is precluded from claiming as part of patented product that which he had to excise or modify in order to avoid patent office rejection, and he may omit any additions he was compelled to add by patent office regulations. [Advance Transformer Co. v. Levinson 837 F.2d 1081(1988)]

Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or PAGE 268 OF 320

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J. LICENSING J.1. VOLUNTARY Voluntary Licensing is the grant by the patent owner to a third person of the right to exploit the patented invention. [Sec. 85, RA 8293] Mandatory Provisions The following provisions shall be included in voluntary license contracts: (1) That the laws of the Philippines shall govern the interpretation of the same and in the event of litigation, the venue shall be the proper court in the place where the licensee has its principal office; [Sec. 88.1, RA 8293] (2) Continued access to improvements in techniques and processes related to the technology shall be made available during the period of the technology transfer arrangement; [Sec. 88.2, RA 8293] (3) In the event the technology transfer arrangement shall provide for arbitration, the Procedure of Arbitration of the Arbitration Law of the Philippines or the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) or the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) shall apply and the venue of arbitration shall be the Philippines or any neutral country; [Sec. 88.3, RA 8293] (4) The Philippine taxes on all payments relating to the technology transfer arrangement shall be borne by the licensor. [Sec. 88.4, RA 8293] Prohibited clauses The following provisions shall be deemed prima facie to have an adverse effect on competition and trade:

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(1) Those which impose upon the licensee the obligation to acquire from a specific source capital goods, intermediate products, raw materials, and other technologies, or of permanently employing personnel indicated by the licensor; [Sec. 87.1, RA 8293] (2) Those pursuant to which the licensor reserves the right to fix the sale or resale prices of the products manufactured on the basis of the license; [Sec. 87.2, RA 8293] (3) Those that contain restrictions regarding the volume and structure of production; [Sec. 87.3, RA 8293] (4) Those that prohibit the use of competitive technologies in a nonexclusive technology transfer agreement; [Sec. 87.4, RA 8293] (5) Those that establish a full or partial purchase option in favor of the licensor; (Sec. 87.5, RA 8293) (6) Those that obligate the licensee to transfer for free to the licensor the inventions or improvements that may be obtained through the use of the licensed technology; (Sec. 87.6, RA 8293) (7) Those that require payment of royalties to the owners of patents for patents which are not used; (Sec. 87.7, RA 8293) (8) Those that prohibit the licensee to export the licensed product unless justified for the protection of the legitimate interest of the licensor such as exports to countries where exclusive licenses to manufacture and/or distribute the licensed product(s) have already been granted; (Sec. 87.8, RA 8293) (9) Those which restrict the use of the technology supplied after the expiration of the technology transfer arrangement, except in cases of early termination of the technology transfer arrangement

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due to reason(s) attributable to the licensee; (Sec. 87.9, RA 8293) (10) Those which require payments for patents and other industrial property rights after their expiration, termination arrangement; (Sec. 87.10, RA 8293) (11) Those which require that the technology recipient shall not contest the validity of any of the patents of the technology supplier; (Sec. 87.11, RA 8293) (12) Those which restrict the research and development activities of the licensee designed to absorb and adapt the transferred technology to local conditions or to initiate research and development programs in connection with new products, processes or equipment; (Sec. 87.12, RA 8293) (13) Those which prevent the licensee from adapting the imported technology to local conditions, or introducing innovation to it, as long as it does not impair the quality standards prescribed by the licensor; (Sec. 87.13, RA 8293) (14) Those which exempt the licensor for liability for non-fulfillment of his responsibilities under the technology transfer arrangement and/or liability arising from third party suits brought about by the use of the licensed product or the licensed technology; (Sec. 87.14, RA 8293) (15) Other clauses with equivalent effects. (Sec. 87.15, RA 8293)

Unless otherwise provided in the technology transfer agreement, the licensor shall have the right to: (1) Grant further licenses to third person (2) Exploit the subject matter of the technology transfer agreement [Sec. 89, RA 8293]

Effect of Non-com pliance with any provisions of Secs. 87 and 88 The technology transfer arrangement shall automatically be rendered unenforceable, unless said technology transfer arrangement is approved and registered with the Documentation, Information and Technology Transfer Bureau under the provisions of Section 91 on exceptional cases. [Sec. 92, RA 8293]

i. Grounds The Director General of the Intellectual Property Office may grant a license to exploit a patented invention, even without the agreement of the patent owner, in favor of any person who has shown his capability to exploit the invention, under any of the following circumstances: (1) National emergency or other circumstances of extreme urgency; [Sec. 93.1, RA 8293 as amended by RA 9502]

Right of Licensor

Right of the Licensee. To exploit the subject matter of the technology transfer agreement during the whole term of the agreement. [Sec. 90, RA 8293] Exceptional cases (1) In exceptional or meritorious cases where substantial benefits will accrue to the economy, such as high technology content, increase in foreign exchange earnings, employment generation, regional dispersal of industries and/or substitution with or use of local raw materials (2) The case of BOI-registered companies with pioneer status [Sec. 91, RA 8293]

J.2. COMPULSORY Compulsory Licensing is the grant of the Director of Legal Affairs of a license to exploit a patented invention, even without the agreement of the patent owner, in favor of any person who has shown his capability to exploit the invention. (Sec. 93, Ra 8293 as amended by RA 9502)

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(2) Where the public interest, in particular, Provided, That, a compulsory license national security, nutrition, health or has been granted by such country or the development of other vital sectors of such country has, by notification or the national economy as determined by otherwise, allowed importation into its the appropriate agency of the jurisdiction of the patented drugs and Government, so requires; [Sec. 93.2, RA medicines from the Philippines in 8293 as amended by RA 9502] compliance with the TRIPS Agreement. (3) Where a judicial or administrative body [Sec. 93-A.2, RA 8293 as amended by has determined that the manner of RA 9502] exploitation by the owner of the patent ii. Period of filing a Petition for or his licensee is anti-competitive; [Sec. Compulsory License 93.3, RA 8293 as amended by RA 9502] At any time after the grant of patent. (4) In case of public non-commercial use of However, a compulsory license may not be the patent by the patentee, without applied for on the ground stated in Sec. 93.5 satisfactory reason; [Sec. 93.4, RA 8293 before the expiration of a period of four (4) as amended by RA 9502] years from the date of filing of the (5) If the patented invention is not being application or three (3) years from the date worked in the Philippines on a of the patent whichever period expires last. commercial scale, although capable of [Sec. 94, RA 8293 as amended by RA 9502] being worked, without satisfactory reason: Provided, That the importation iii. Requirem ent to Obtain a License of the patented article shall constitute on Reasonable Com m ercial Term s working or using the patent; [Sec. 93.5, General Rule: The license will only be RA 8293 as amended by RA 9502] granted after the petitioner has made (6) Where the demand for patented drugs efforts to obtain authorization from the and medicines is not being met to an patent owner on reasonable commercial adequate extent and on reasonable terms and conditions but such efforts have terms, as determined by the Secretary not been successful within a reasonable of the Department of Health. [Sec. 93.6, period of time. [Sec. 95.1, RA 8293 as RA 8293 as amended by RA 9502] amended by RA 9502] (7) If the invention protected by a patent, hereafter referred to as the "second Exceptions: The requirement of patent," within the country cannot be authorization shall not apply in the worked without infringing another following cases: patent, hereafter referred to as the "first (1) Where the petition for compulsory patent," granted on a prior application license seeks to remedy a practice or benefiting from an earlier priority, a determined after judicial or compulsory license may be granted to administrative process to be antithe owner of the second patent to the competitive; extent necessary for the working of his (2) In situations of national emergency or invention, subject to certain conditions. other circumstances of extreme [Sec. 97, RA 8293] urgency; (8) Manufacture and export of drugs and (3) In cases of public non-commercial use. medicines to any country having (4) In cases where the demand for the insufficient or no manufacturing patented drugs and medicines in the capacity in the pharmaceutical sector to Philippines is not being met to an address public health problems: adequate extent and on reasonable PAGE 271 OF 320

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terms, as determined by the Secretary of the Department of Health. [Sec. 95.2, RA 8293 as amended by RA 9502] iv. Term s and Conditions of Compulsory License (1) The scope and duration of such license shall be limited to the purpose for which it was authorized; [Sec. 100.1, RA 8293] (2) The license shall be non-exclusive; [Sec. 100.2, RA 8293] (3) The license shall be non-assignable, except with that part of the enterprise or business with which the invention is being exploited; ; [Sec. 100.3, RA 8293] (4) Use of the subject matter of the license shall be devoted predominantly for the supply of the Philippine market: Provided, that this limitation shall not apply where the grant of the license is based on the ground that the patentee's manner of exploiting the patent is determined by judicial or administrative process, to be anti-competitive. ;[Sec. 100.4, RA 8293] (5) The license may be terminated upon proper showing that circumstances which led to its grant have ceased to exist and are unlikely to recur: Provided, That adequate protection shall be afforded to the legitimate interest of the licensee; ; [Sec. 100.5, RA 8293] (6) The patentee shall be paid adequate remuneration taking into account the economic value of the grant or authorization, except that in cases where the license was granted to remedy a practice which was determined after judicial or administrative process, to be anticompetitive, the need to correct the anti-competitive practice may be taken into account in fixing the amount of remuneration. [Sec. 100.6, RA 8293]

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III. Trademarks A. DEFINITION OF COLLECTIVE MARKS, NAMES

MARKS, TRADE

A.1. MARKS Any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods (Sec. 121.1, RA 8293) A trademark refers to a word, name, symbol, emblem, sign or device or any combination thereof adopted and used by a merchant to identify, and distinguish from others, his goods of commerce. It is basically an intellectual creation that is susceptible to ownership and, consistently therewith, gives rise to its own elements of ownership. The incorporeal right, however, is distinct from the property in the material object subject to it. Ownership in one does not necessarily vest ownership in the other. Thus, the transfer or assignment of the intellectual property will not necessarily constitute a conveyance of the thing it covers, nor would a conveyance of the latter imply the transfer or assignment of the intellectual right. [Distilleria Washington vs. CA, G.R. No. 120961 (1996)] Tradem ark

Service Mark

Any visible sign Any visible sign which is adopted and capable of used to identify the distinguishing the source of origin of services of an goods, and which is enterprise from the capable of service of other distinguishing them enterprises. from goods emanating from a competitor.

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Protection Is not limited to similar marks but also products that may case insidious damage. Collective Marks Any visible sign designated as such in the application for registration and capable of distinguishing the origin or any other common characteristic, including the quality of goods or services of different enterprises which use the sign under the control of the registered owner of the collective mark. (Sec. 121.2, RA 8293)

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merchandise the fruit of his industry and skill, and to prevent fraud and imposition. [Etepha v. Director of Patents, G.R. No. L20635 (1966)]

B. ACQUISITION OF OWNERSHIP OF MARK The rights to a mark shall be acquired through registration made validly in accordance with law. [Sec. 122, RA 8293]

B.1. DURATION OF CERTIFICATE Trade Name The name or designation identifying or distinguishing an enterprise (Sec. 121.3, RA 8293). Any individual name or surname, firm name, device or word used by manufacturers, industrialists, merchants, and others to identify their businesses, vocations or occupations. [Converse Rubber Corp. v. Universal Rubber Products, Inc., G.R. No. L27906 (1987)]

A.2. FUNCTIONS OF A TRADEMARK (1) To point out distinctly the origin or ownership of the goods and to which it is affixed; (2) To secure him, who has been instrumental in bringing into the market a superior article of merchandise, the fruit of his industry and skill;

A certificate of registration shall remain in force for 10 years and may be renewed for periods of 10 years at its expiration upon payment of the prescribed fee and upon filing of a request. [Sec 145-146, RA 8293]

C. ACQUISITION OF OWNERSHIP OF TRADE NAME Notwithstanding any laws or regulations providing for any obligation to register trade names, such names shall be protected, even prior to or without registration, against any unlawful act committed by third parties. [Sec. 165.2 (a), RA 8293) The ownership of a trade name is acquired through adoption and use.

(4) To prevent fraud and imposition; and

A name or designation may not be used as a trade name if by its nature or the use to which such name or designation may be put, it is contrary to public order or morals and if, in particular, it is liable to deceive trade circles or the public as to the nature of the enterprise identified by that name. [Sec. 165.1, RA 8293]

(5) To protect the manufacturer against substitution and sale of an inferior and different article as its product [Mirpuri v. CA, G.R. No. 114508 (1999)]

Any change in the ownership of a trade name shall be made with the transfer of the enterprise or part thereof identified by that name. [Sec. 165.4, RA 8293]

(3) To assure the public that they are producing the genuine article;

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D. NON-REGISTRABLE MARKS

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they seek to identify; [Sec 123.1(h), RA 8293]

A mark cannot be registered if it: (1) Consists of immoral, deceptive or scandalous matter, or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute; [Sec 123.1(a), RA 8293] (2) Consists of flags, coat of arms or other insignia of the Philippines or any foreign country; [Sec 123.1(b), RA 8293] (3) Consists of a name, portrait or signature identifying a particular living individual except by his written consent, or of a deceased President of the Philippines, during the life of his widow, except by written consent of the widow; [Sec 123.1(c), RA 8293] (4) Is identical with a registered mark of another or a mark with an earlier filing or priority date, in respect of: (a) The same goods or services, or

(9) Consists exclusively of signs or of indications that have become customary or usual to designate the goods or services in everyday language or in a bona fide and established trade practice; [Sec 123.1(i), RA 8293] (10) Consists exclusively of signs or of indications that may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin, time or production of the goods or rendering of the services, or other characteristics of the goods or services; [Sec 123.1(j), RA 8293] (11) Consists of shapes that may be necessitated by technical factors or by the nature of the goods themselves or factors that affect their intrinsic value; [Sec 123.1(k), RA 8293] (12) Consists of color alone, unless defined by a given form; [Sec 123.1(l), RA 8293] (13) Is contrary to public order or morality. [Sec 123.1(m), RA 8293]

(b) Closely related goods or services, or (c) If it nearly resembles such a mark as to be likely to deceive or cause confusion; [Sec 123.1(d), RA 8293] (5) Is identical with, or confusingly similar to, or constitutes a translation of a wellknown mark, whether or not registered in the Philippines, and used for identical or similar goods or services; [Sec 123.1(e), RA 8293] (6) Is identical with, or confusingly similar to, or constitutes a translation of a wellknown mark which is registered in the Philippines, and used for goods or services which are not similar; [Sec 123.1(f), RA 8293] (7) Likely to mislead the public, particularly as to the nature, quality, characteristics or geographical origin of the goods or services; [Sec 123.1(g), RA 8293] (8) Consists exclusively of signs that are generic for the goods or services that

If Merely Descriptive “"Tussin" was derived from the Latin "tussis" meaning cough. "Tussin" is merely descriptive; it is generic; it furnishes to the buyer no indication of the origin of the goods; it is open for appropriation by anyone. It is barred from registration as trademark. While "tussin" by itself cannot thus be used exclusively to identify one's goods, it may properly become the subject of a trademark "by combination with another word or phrase", e.g. “Atussin”, “Pertussin”.” [Etepha vs. Director of Patents, G.R. No. L-20635 (1966)] “The phrase “Ang tibay!” is never used “adjectively” to define or describe an object. One does not say, “Ang tibay sapatos” or “sapatos ang tibay” to mean “durable shoes”; rather we say “matibay na sapatos” or “sapatos na matibay.”Thus, the name “Ang Tibay” is a fanciful or coined phrase and not a descriptive term, and therefore may be legally appropriated as a trademark

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or trade-name.” [Ang vs. Teodoro, G.R. No. L-48226 (1942)]

D.1. DOCTRINE MEANING

OF

SECONDARY

When the marks referred to in nos. 10, 11 and 12 has become distinctive, because of its long, continuous and exclusive use for 5 years, as used in connection with the applicant’s goods or services in commerce and in the mind of the public indicates a single source to consumers, it may be registered. The Office may accept as prima facie evidence that the mark has become distinctive, as used in connection with the applicant's goods or services in commerce, proof of substantially exclusive and continuous use thereof by the applicant in commerce in the Philippines for five (5) years before the date on which the claim of distinctiveness is made. [Sec 123.2, RA 8293] The nature of the goods to which the mark is applied will not constitute an obstacle to registration. [Sec 123.3, RA 8293]

E. PRIOR USE OF MARK AS A REQUIREMENT E.1. USE OF REQUIREMENT

MARK

AS

A

The applicant or the registrant shall file a declaration of actual use of the mark with evidence to that effect, as prescribed by the Regulations within three (3) years from the filing date of the application. Otherwise, the application shall be refused or the mark shall be removed from the Register by the Director. [Sec. 124.2, RA 8293] For the requirement of “actual use in commerce in the Philippines” before one may register a trademark, trade name and service mark under the law pertains to the territorial jurisdiction of the Philippines and is not only confined to a certain region, province, city or barangay. [McDonald’s Corporation v. MacJoy Fastfood, G.R. No. 166115 (2007)]

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Trademark is a creation of use and, therefore, actual use is a pre-requisite to exclusive ownership; registration is only an administrative confirmation of the existence of the right of ownership of the mark, but does not perfect such right; actual use thereof is the perfecting ingredient. [Shangri-La International Hotel v. Developers Group of Companies, G.R. No. 159938 (2006)]

E.2. NON-USE EXCUSED

OF

MARK

WHEN

(1) If caused by circumstances arising independently of the will of the trademark owner. Lack of funds shall not excuse non-use of a mark; [Sec. 152.1, RA 8293] (2) A use which does not alter its distinctive character though the use is different from the form in which it is registered. [Sec. 152.2, RA 8293] (3) Use of a mark in connection with one or more of the goods/services belonging to the class in which the mark is registered. [Sec. 152.3, RA 8293] (4) The use of mark by a company related to the applicant or registrant (5) The use of mark by a person controlled by the registrant. [Sec. 152.4, RA 8293] The use of a mark by a company related with the registrant or applicant shall inure to the latter's benefit, and such use shall not affect the validity of such mark or of its registration: Provided, that such mark is not used in such manner as to deceive the public. [Sec.152.4, Ra 8293]

F. WELL-KNOWN MARKS A well-known mark is a mark which a competent authority of the Philippines has designated to be well-known internationally and in the Philippines. In determining whether a mark is wellknown, account shall be taken of the knowledge of the relevant sector of the

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public, rather than the public at large, including knowledge in the Philippines which has been obtained as a result of the promotion of the mark. (Sec 123.1(e), RA 8293)

F.1. DETERMINANTS CONCUR)

(NEED

NOT

(1) The duration, extent and geographical area of any use of the mark; (2) The market share in the Philippines and other countries of the goods/services to which the mark applies; (3) The degree of the inherent or acquired distinction of the mark; (4) The quality-image acquired by the mark;

or

reputation

(5) The extent to which the mark has been registered in the world; (6) The exclusivity of the registration attained by the mark in the world; (7) The extent of use of the mark in the world; (8) The exclusivity of use in the world; (9) The commercial value attributed to the mark in the world; (10) The record of successful protection of the rights in the mark; (11) The outcome of litigations dealing with the issue of whether the mar is wellknown; and (12) The presence or absence of identical or similar test marks validly registered or used on other similar goods [Rule 102, Rule on Trademarks]

F.2. PROTECTION EXTENDED WELL-KNOWN MARKS

TO

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registered here, as being already the mark of a person other than the applicant for registration and used for identical goods or services. [(Sec 123.1(e), RA 8293] If registered in the Philippines A mark cannot be registered if it is identical with or confusingly similar to, or constitutes a translation of a mark considered wellknown in accordance with the Sec. 123.1 (e), which is registered in the Philippines with respect to goods or services which are not similar to those with respect to which registration is applied for. [Sec 123.1(f), RA 8293] Priority Right An application for registration of a mark filed in the Philippines by a person referred to in Section 3, and who previously duly filed an application for registration of the same mark in one of those countries, shall be considered as filed as of the day the application was first filed in the foreign country. [Sec. 131.1, RA 8293] No registration of a mark in the Philippines by a person described in this section shall be granted until such mark has been registered in the country of origin of the applicant. [Sec. 131.2, RA 8293] Significance of Priority Right A Philippine application filed by another applicant after the priority date but earlier than the foreign applicant’s actual filing may be refused registration if it is identical to the mark with a priority date. [Agpalo, The Law on Trademark, Infringement and Unfair Competition (2000)]

F.3. RIGHTS CONFERRED BY A WELLKNOWN MARK

If not registered in the Philippines A mark cannot be registered if it is identical with or confusingly similar to, or constitutes a translation of a mark which is considered by the competent authority of the Philippines to be well-known internationally and in the Philippines, whether or not it is

(1) Right to be protected whether or not it is registered in the Philippines; (2) If registered under Sec 123.1(e), extension of protection to goods and services which are not similar to those in

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respect of which the mark is registered, provided that: (a) The use of the mark in relation to unrelated or dissimilar goods or services would indicate a connection between those goods or services and the owner of the mark; and (b) The interests of the owner of the registered mark are likely to be damaged by such use. [Sec. 147.2, RA 8293]

G. RIGHTS CONFERRED REGISTRATION

BY

Except in cases of importation of drugs and medicines allowed under Section 72.1 of this Act and of off-patent drugs and medicines, the owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs or containers for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. [Sec. 147.1, RA 8293 as amended by RA 9502]

G.1. LIMITATIONS ON SUCH RIGHTS (1) Duration (except that, inasmuch as the registration of a trademark could be renewed every 10 years, a trademark could conceivably remain registered forever); (2) Territorial (except well-known marks). Registration of the mark shall not confer on the registered owner the right to preclude third parties from using bona fide their names, addresses, pseudonyms, a geographical name, or exact indications concerning the kind, quality, quantity, destination, value, place of origin, or time of

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production or of supply, of their goods or services: Provided, That such use is confined to the purposes of mere identification or information and cannot mislead the public as to the source of the goods or services. [Sec. 148, RA 8293]

G.2. ASSIGNMENT AND TRANSFER OF APPLICATION AND REGISTRATION (1) An application for registration of a mark, or its registration, may be assigned or transferred with or without the transfer of the business using the mark. [Sec. 149.1, RA 8293] (2) Such assignment or transfer shall, however, be null and void if it is liable to mislead the public, particularly as regards the nature, source, manufacturing process, characteristics, or suitability for their purpose, of the goods or services to which the mark is applied. [Sec. 149.2, RA 8293] (3) The assignment of the application for registration of a mark, or of its registration, shall be in writing and require the signatures of the contracting parties. Transfers by mergers or other forms of succession may be made by any document supporting such transfer. [Sec. 149.3, RA 8293] (4) Assignments and transfers of registrations of marks shall be recorded at the Office on payment of the prescribed fee; assignment and transfers of applications for registration shall, on payment of the same fee, be provisionally recorded, and the mark, when registered, shall be in the name of the assignee or transferee. [Sec. 149.4, RA 8293] (5) Assignments and transfers shall have no effect against third parties until they are recorded at the Office. [Sec. 149.5, RA 8293]

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contract does not provide for such quality control, or if such quality control is not effectively carried out, the license contract shall not be valid. [Sec. 150.1, RA 8293]

G.3. PROTECTION LIMITED TO GOODS SPECIFIED IN REGISTRATION CERTIFICATE The certificate of registration can confer upon the petitioner the exclusive right to use its own symbol only to those goods specified in the certificate, subject to any conditions a limitations stated therein. One who has adopted and used a trademark on his goods does not prevent the adoption and use of the same trademark by others for products which are of a different description. [Faberge, Inc. v. IAC and Co Beng Kay, G.R. No. 71189 (1992)]

H. USE BY THIRD PARTIES OF NAMES, ETC. SIMILAR TO REGISTERED MARK The IPC deems unlawful any subsequent use of the trade name by a third party, whether as a trade name or a mark or collective mark, or any such use of a similar trade name or mark, likely to mislead the public. [Sec. 165.2 (b), RA 8293]

I. INFRINGEMENT AND REMEDIES I.1. TRADEMARK INFRINGEMENT Any person who shall, without the consent of the owner of the registered mark: (1) Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely

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to cause confusion, or to cause mistake, or to deceive; [Sec. 155.1, RA 8293] (2) Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive. [Sec. 155.2, RA 8293] A crucial issue in any trademark infringement case is the likelihood of confusion, mistake or deceit as to the identity, source or origin of the goods or identity of the business as a consequence of using a certain mark. Likelihood of confusion is admittedly a relative term, to be determined rigidly according to the particular (and sometimes peculiar) circumstances of each case. In determining likelihood of confusion, the court must consider: (a) the resemblance between the trademarks; (b) the similarity of the goods to which the trademarks are attached; (c) the likely effect on the purchaser; and (d) the registrant’s express or implied consent and other fair and equitable considerations. [Mighty Corporation v. E. & J. Gallo Winery, G.R. No. 154342 (2004)] To establish trademark infringement, the following elements must be shown: (1) the validity of the mark; (2) the plaintiff’s ownership of the mark; and (3) the use of the mark or its colorable imitation by the alleged infringer results in “likelihood of confusion.” Of these, it is the element of likelihood of confusion that is the gravamen of trademark infringement. Two types of confusion arise from the use of similar or colorable imitation marks, namely, confusion of goods (product confusion) and confusion of business (source or origin confusion). While there is confusion of goods when the products are competing, confusion of business exists when the products are non-competing but related

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enough to produce confusion or affiliation. [McDonald’s Corporation v. L.C. Big Mak Burger, Inc., et al., G.R. No. 143993 (2004)] In order to bring a civil action for infringement, it is not required that there is an actual sale of the goods or services using the infringing material. [Sec. 155.2, RA 8293] Infringement takes place upon the mere use or reproduction of the registered mark. No article of imported merchandise which shall copy or simulate the name of any domestic product, or manufacturer, or dealer, or which shall copy or simulate a mark registered in accordance with the provisions of this Act, or shall bear a mark or trade name calculated to induce the public to believe that the article is manufactured in the Philippines, or that it is manufactured in any foreign country or locality other than the country or locality where it is in fact manufactured, shall be admitted to entry at any customhouse of the Philippines. [Sec. 166, RA 8293] A mere distributor and not the owner cannot assert any protection from trademark infringement as it had no right in the first place to the registration of the disputed trademarks. [Superior Commercial Enterprises v. Kunnan Enterprises, G.R. No. 169974 (2010)]

I.2. TESTS INFRINGEMENT

TO

DETERMINE

Dom inancy test Infringement is determined by the test of “dominancy” rather than by differences or variations in the details of one trademark and of another. Similarity in size, form and color, while relevant is not conclusive. If the competing trademark contains the main or essential or dominant features of another, and confusion is likely to result, infringement takes place. [Asia Brewery v. CA and San Miguel, G.R. No. 103543 (1993)] The dominancy test considers the dominant features in the competing marks in determining whether they are confusingly

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similar. Under the dominancy test, courts give greater weight to the similarity of the appearance of the product arising from the adoption of the dominant features of the registered mark, disregarding minor differences. Courts will consider more the aural and visual impressions created by the marks in the public mind, giving little weight to factors like prices, quality, sales outlets and market segments. [McDonald’s Corporation v. L.C. Big Mak Burger, Inc., et al., G.R. No. 143993 (2004)] Holistic test To determine whether a trademark has been infringed, we must consider the mark as a whole and not as dissected. If the buyer is deceived, it is attributable to the marks as a totality, not usually to any part of it. The court therefore should be guided by its first impression, for the buyer acts quickly and is governed by a casual glance, the value of which may be dissipated as soon as the court assumed to analyze carefully the respective features of the mark. [Del Monte Corporation, et al. v. CA, G.R. No. L-78325 (1990)] Doctrine of Related Goods/Services (1) Goods are related when they belong to the same class or have the same descriptive properties or physical attributes, or they serve the same purpose or flow through the same channel of trade. (2) The use of identical marks on noncompeting but related goods may likely cause confusion. (3) Corollarily, the use of identical marks on non-competing and unrelated goods is not likely to cause confusion. W hen Goods are Non-Competing “Undoubtedly, the paints, chemical products, toner and dyestuff of CKK that carry the trademark CANON are unrelated to sandals, the product of NSR. The 2 classes of products in this case flow through

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different trade channels. The products of CKK are sold through special chemical stores or distributors while the products of NSR are sold in grocery stores, sari-sari stores and department stores. Thus, the evident disparity of these products renders unfounded the apprehension of CKK that confusion of business or origin might occur if NSR is allowed to use the mark CANON.” [Canon Kabushiki Kaisha vs. CA, G.R. No. 12090 (2000)]

I.3. FALSE DESIGNATIONS OF ORIGIN; FALSE DESCRIPTION OR REPRESENTATION Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which: (1) Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; [Sec. 169.1(a), RA 8293] (2) In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable to a civil action for damages and injunction [Sec. 169.1 (b), RA 8293] Any goods marked or labeled in contravention of the provisions of this Section shall not be imported into the Philippines or admitted entry at any customhouse of the Philippines. The owner, importer, or consignee of goods refused entry at any customhouse under this section may have any recourse under the customs revenue laws or may have the remedy given by this Act in cases involving goods refused entry or seized. [Sec. 169.2, RA 8293]

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I.4. INFRINGEMENT OF NAME AND MARKS OF OWNERSHIP STAMP ON CONTAINERS General Rule: It is unlawful for any person, without the consent of the manufacturer, bottler or seller who has registered the mark of ownership to fill such bottles, boxes, kegs, barrels or other containers so marked and stamped, for the purpose of sale, dispose of, or wantonly destroy the same, whether filled or not, to use the same for drinking vessels or drain pipes, foundation pipes, for any other purpose than that registered. [Sec. 2, RA 623 as amended by RA 5700] The use of the same without apparent permission from the trademark owners thereof shall be prima facie presumption that such possession or use is unlawful. [Sec. 3, RA 623 as amended by RA 5700] Exceptions: (1) Use of the bottles as containers for sisi, bagoong, patis, and similar native products [Sec. 6 RA 623 as amended by RA 5700] (2) Persons in whose favor the containers were sold [Distelleria Washington v. LA Tondena Distillers, G.R. No. 120961 (1997)]

I.5. DAMAGES The owner of a registered mark may recover damages from any person who infringes his rights, and the measure of the damages suffered shall be either the reasonable profit which the complaining party would have made, had the defendant not infringed his rights, or the profit which the defendant actually made out of the infringement, or in the event such measure of damages cannot be readily ascertained with reasonable certainty, then the court may award as damages a reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party. [Sec. 156.1, RA 8293]

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The owner of the registered mark shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is likely to cause confusion, or to cause mistake, or to deceive. Such knowledge is presumed if the registrant gives notice that his mark is registered by displaying with the mark the words '"Registered Mark" or the letter R within a circle or if the defendant had otherwise actual notice of the registration. [Sec. 158, RA 8293] Should damages be recoverable, the measure of the damages suffered shall be either: (1) The reasonable profit which the complaining party would have made, had the defendant not infringed his rights; or (2) The profit which the defendant actually made out of the infringement; or (3) A reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party if such measure of damages cannot be readily ascertained with reasonable certainty. [Sec. 156.1, RA 8293]

I.6. REQUIREMENT OF NOTICE Notice of registration of trademark is necessary for an owner of a trademark to recover damages in an action for infringement since knowledge that such imitation is likely to cause confusion, or to cause mistake, or to deceive is an element of infringement. Requirement of notice may be complied by displaying with the mark the words '"Registered Mark" or the letter R within a circle. [Sec. 158, RA 8293]

I.7. OTHER REMEDIES AVAILABLE: (1) Injunction [Sec. 156.4]; (2) Impounding of sales invoices and other documents [Sec. 156.2];

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(3) Double damages in case of actual intent to defraud or to mislead [Sec. 156.3]; (4) Court order for the disposal or destruction of the infringing goods [Sec. 157]; (5) Criminal Action; (6) Administration sanctions Any foreign national, who qualifies under the principle on reciprocity and does not engage in business in the Philippines, whether or not it is licensed to do business in the Philippines, may bring civil or administrative action for: (1) Opposition (2) Cancellation (3) Infringement (4) Unfair Competition (5) False designation of origin or false description (Sec. 160. RA 8293)

I.8. LIMITATIONS TO ACTIONS FOR INFRINGEMENT The remedies given to the owner of a right infringed shall be limited as follows: (1) Registered mark shall have no effect against any person who, in good faith, before the filing date or the priority date, was using the mark for the purposes of his business or enterprise: Provided, That his right may only be transferred or assigned together with his enterprise or business or with that part of his enterprise or business in which the mark is used. [Sec. 159.1, RA 8293] (2) Where an infringer who is engaged solely in the business of printing the mark or other infringing materials for others is an innocent infringer, the owner of the right infringed shall be entitled as against such infringer only to an injunction against future printing. [Sec. 159.2, RA 8293] (3) Where the infringement complained of is contained in or is part of paid advertisement in a newspaper, magazine, or other similar periodical or

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in an electronic communication, the remedies of the owner of the right infringed as against the publisher or distributor of such newspaper, magazine, or other similar periodical or electronic communication shall be limited to an injunction against the presentation of such advertising matter in future issues of such newspapers, magazines, or other similar periodicals or in future transmissions of such electronic communications.

J. UNFAIR COMPETITION

The limitations shall apply only to innocent infringers: Provided, That such injunctive relief shall not be available to the owner of the right infringed with respect to an issue of a newspaper, magazine, or other similar periodical or an electronic communication containing infringing matter where restraining the dissemination of such infringing matter in any particular issue of such periodical or in an electronic communication would delay the delivery of such issue or transmission of such electronic communication is customarily conducted in accordance with the sound business practice, and not due to any method or device adopted to evade this section or to prevent or delay the issuance of an injunction or restraining order with respect to such infringing matter. [Sec. 159.3, RA 8293]

Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor. [Sec. 168.2, RA 8293]

(4) There shall be no infringement of trademarks or tradenames of imported or sold drugs and medicines allowed under Section 72.1 as well as imported or sold off-patent drugs and medicines: Provided, That said drugs and medicines bear the registered marks that have not been tampered, unlawfully modified, or infringed upon as defined under Section 155. [Sec. 159.4 RA 8293 as amended by RA 9502]

A person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not a registered mark is employed, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other property rights. [Sec. 168.1, RA 8293]

The following shall be deemed guilty of unfair competition: (1) Any person, who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose; [Sec. 168.3(a), RA 8293] (2) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; [Sec. 168.3(b), RA 8293]

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(3) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another. (Sec. 168.3(c), RA 8293) The elements of an action for unfair competition are: (1) confusing similarity in the general appearance of the goods, and (2) intent to deceive the public and defraud a competitor. The confusing similarity may or may not result from similarity in the marks, but may result from other external factors in the packaging or presentation of the goods. The intent to deceive and defraud may be inferred from the similarity in appearance of the goods as offered for sale to the public. Actual fraudulent intent need not be shown. [McDonald’s Corporation v. L.G. Big Mak Burger, Inc., et al., G.R. No. 143993 (2004)] An action for unfair competition is based on the proposition that no dealer in merchandise should be allowed to dress his goods in simulation of the goods of another dealer, so that purchasers desiring to buy the goods of the latter would be induced to buy the goods of the former. The most usual devices employed in committing this crime are the simulation of labels and the reproduction of form, color and general appearance of the package used by the pioneer manufacturer or dealer. [Caterpillar, Inc v. Samson, G.R. No. 164605 (2006)] Articles 168.1 and 168.2 provide the concept and general rule on the definition of unfair competition. The law does not thereby cover every unfair act committed in the course of business; it covers only acts characterized by “deception or any other means contrary to good faith” in the passing off of goods and services as those of another who has established goodwill in relation with these goods or services, or any other act calculated to produce the same result.

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provided under Section 168.3(c) which provides the general “catch-all” phrase that the petitioner cites. Under this phrase, a person shall be guilty of unfair competition “who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another.” [Coca-Cola v. Gomez, G.R. No. 154491 (2008)] From jurisprudence, unfair competition has been defined as the passing off (or palming off) or attempting to pass off upon the public the goods or business of one person as the goods or business of another with the end and probable effect of deceiving the public. It formulated the “true test” of unfair competition: whether the acts of defendant are such as are calculated to deceive the ordinary buyer making his purchases under the ordinary conditions which prevail in the particular trade to which the controversy relates. One of the essential requisites in an action to restrain unfair competition is proof of fraud; the intent to deceive must be shown before the right to recover can exist. The advent of the IP Code has not significantly changed these rulings as they are fully in accord with what Section 168 of the Code in its entirety provides. Deception, passing off and fraud upon the public are still the key elements that must be present for unfair competition to exist. Infringement of Trademark

Unfair Competition

Unauthorized use of Passing off of one’s a trademark goods as those of another Fraudulent intent is Fraudulent intent is unnecessary essential Prior registration of Registration is not the trademark is a necessary prerequisite to the action

What unfair competition is, is further particularized under Section 168.3 when it [In and Out Burger vs Sehwani, G.R. No. provides specifics of what unfair 179127 (2008)] competition is “without in any way limiting the scope of protection against unfair competition.” Part of these particulars is PAGE 283 OF 320

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The law on unfair competition is broader and more inclusive than the law on trademark infringement. The latter is more limited but it recognizes a more exclusive right derived from the trademark adoption and registration by the person whose goods or business is first associated with it. Hence, even if one fails to establish his exclusive property right to a trademark, he may still obtain relief on the ground of his competitor’s unfairness or fraud. Conduct constitutes unfair competition if the effect is to pass off on the public the goods of one man as the goods of another. [Mighty Corporation v. E. & J. Gallo Winery, G.R. No. 154342 (2004)]

K. TRADE NAMES OR BUSINESS NAMES It is the name or designation identifying or distinguishing an enterprise. [Sec. 121.3, RA 8293] Any individual name or surname, firm name, device or word used by manufacturers, industrialists, merchants, and others to identify their businesses, vocations or occupations [Converse Rubber Corp. v. Universal Rubber Products, Inc., G.R. No. L27906 (1987)]

K.1. WHAT MAY NOT BE USED AS TRADE NAME (1) If by its nature or the use to which the name or designation may be put, it is contrary to public order or morals. (2) If it is liable to deceive trade circles or the public as to the nature of the enterprise identified by the name (3) If the trade name is similar to a mark or a trade name owned by another person and its use would likely mislead the public. [Sec.165.1, RA 8293] Acquisition of ownership: Trade names are protected even prior to or without registration. The ownership of a trade name is acquired through adoption and use.

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Right of owner: The IPC deems unlawful any subsequent use of the trade name by a third party, whether as a trade name or a mark or collective mark, or any such use of a similar trade name or mark, likely to mislead the public. [Sec. 165.2 (b), RA 8293] Trade names, unlike trademarks, need not be registered with the IPO before an infringement suit may be filed by its owner against the owner of an infringing trademark. All that is required is that the trade name is previously used in trade or commerce in the Philippines. [Prosource International v. Horphag Research Management, G.R. No. 180073 (2009)]

L. COLLECTIVE MARKS A Collective mark is any visible sign designated as such in the application for registration and capable of distinguishing the origin or any other common characteristic, including the quality of goods or services of different enterprises which use the sign under the control of the registered owner of the collective mark [Sec. 121.2, RA 8293] An application for registration of a collective mark shall designate the mark as a collective mark and shall be accompanied by a copy of the agreement, if any, governing the use of the collective mark. [Sec. 167.2, Ra 8293]

L.1. GROUNDS FOR CANCELLATION In addition to the grounds under Section 149, the Court shall cancel the registration of a collective mark if the person requesting the cancellation proves: (1) That only the registered owner uses the mark; or (2) That he uses or permits its use in contravention of the agreements referred to in Subsection 166.2; or (3) That he uses or permits its use in a manner liable to deceive trade circles or the public as to the origin or any other common characteristics of the goods or

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services concerned. [Sec. 167.3, RA 8293] The registration of a collective mark, or an application therefor shall not be the subject of a license contract. [Sec. 167.4, RA 8293]

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IV. Copyrights A. DEFINITION Is that system of legal protection an author enjoys of the form of expression of ideas. [Aquino, Intellectual Property Law] Copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts: (1) Reproduction of the work substantial portion of the work;

or

(2) Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; (3) The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; (4) Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (5) Public display of the original or a copy of the work; (6) Public performance of the work; and (7) Other communication to the public of the work. [Sec 177, RA 8293]

B. BASIC PRINCIPLES B.1. WORKS ARE PROTECTED BY THE SOLE FACT OF THEIR CREATION Principle of Automatic Protection : Copyright is vested from the very moment of creation. [Sec. 172.2, RA 8293] PAGE 285 OF 320

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The enjoyment and exercise of copyright, including moral rights, shall not be the subject of any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. [Article 5(2), Berne Convention for the Protection of Literary and Artistic Works] The Denicola Test in intellectual property law states that if design elements of an article reflect a merger of aesthetic and functional considerations, the artistic aspects of the work cannot be conceptually separable from the utilitarian aspects; thus, the article cannot be copyrighted.

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falling within the statutory enumeration or description. [Pearl and Dean vs. Shoemart, G.R. No. 148222 (2003)]

C. COPYRIGHTABLE WORKS C.1. ORIGINAL ARTISTIC WORKS

LITERARY

AND

Literary and artistic works, hereinafter referred to as "works", are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular:

B.2. PROTECTION EXTENDS ONLY TO THE EXPRESSION OF AN IDEA, NOT THE IDEA ITSELF.

(a) Books, pamphlets, other writings;

No protection shall extend, under this law, to any idea, procedure, system method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work. [Sec 175, RA 8293]

(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;

B.3. THE COPYRIGHT IS DISTINCT FROM THE PROPERTY IN THE MATERIAL OBJECT SUBJECT TO IT. The copyright is distinct from the property in the material object subject to it. Consequently, the transfer or assignment of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work imply transfer or assignment of the copyright. [Sec 181, RA 8293]

B.4. COPYRIGHT IS A STATUTORY RIGHT.

articles

and

(b) Periodicals and newspapers;

(d) Letters; (e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows; (f) Musical compositions, without words;

with

or

(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art; (h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; (i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;

Copyright, in the strict sense of the term is purely a statutory right. Being a mere (j) Drawings or plastic works of a statutory grant, the rights are limited to scientific or technical character; what the statute confers. It may be obtained (k) Photographic works including works and enjoyed only with respect to the produced by a process analogous to subjects and by the persons, and on terms photography; lantern slides; and conditions specified in the statute. Accordingly, it can cover only the works PAGE 286 OF 320

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(l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;

C.2. DERIVATIVE WORKS

(m) Pictorial illustrations advertisements;

(1) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and

and

(n) Computer programs; and (o) Other literary, scholarly, scientific and artistic works W hen a work is considered original: (1) The work is an independent creation of the author; and (2) It must not be copied from the work of another. A person to be entitled to a copyright must be the original creator of the work. He must have created it by his own skill, labor and judgment without directly copying or evasively imitating the work of another. [Ching Kian Chuan vs. CA, G.R. No. 130360 (2001)] By originality is meant that the material was not copied, and evidences at least minimal creativity; that it was independently created by the author and that it possesses at least some minimal degree of creativity. Copying is shown by proof of access to copyrighted material and substantial similarity between the two works. The applicant must thus demonstrate the existence and validity of copyright because in the absence of copyright protection, even the original creation may be freely copied. [Ching v. Salinas, G.R. No. 161295 (2005)] Originality is not determined by novelty, aesthetic merit or ingenuity but that it is an independent creation. The requirement in US Law that the expression should be fixed in a tangible medium is not applicable here since our law expressly provides that works are protected irrespective of their mode or form of expression. [Sec. 172.2, RA 8293]

The following derivative works shall also be protected by copyright:

(2) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. [Sec. 173.1, RA 8293] Derivative works are protected as new works provided they shall not: (a) Affect the force of any subsisting copyright upon the original works employed or any part thereof; or (b) Be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. [Sec. 173.2, RA 8293] The provisions of the intellectual property code shall apply to works in which copyright protection obtained prior to the effectivity of the law is subsisting. Provided that the application of the code shall not result in the diminution of such protection. [Sec. 239.3 IPC] A person entitled to copyright must be the original creator of the work. He must have created it by his own skill, labor, and judgment without directly copying or evasively imitating the work of another. [Ching Kian Chuan vs CA, G.R. No. 130360 (2001) (Vermicelli Case)] To be entitled to copyright, the thing being copyrighted must be original, created by the author through his own judgment without directly copying or evasively imitating the work of another. [Sambar vs Levi Strauss, G.R. No. 132604 (2002]:

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D. NON-COPYRIGHTABLE WORKS D.1. UNPROTECTED SUBJECT MATTER (1) Any idea, procedure, system method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; (2) News of the day and other miscellaneous facts having the character of mere items of press information; (3) Any official text of a legislative, administrative or legal nature, as well as any official translation thereof; (4) Pleadings; (5) Original decisions of courts and tribunals (This pertains to the “original decisions” not the SCRA published volumes since these are protected under derivative works under Sec 173.1) [Sec. 175, RA 8293] The format or mechanics of a TV show is not copyrightable as copyright does not extend to ideas, procedures, processes, systems, methods of operation, concepts, principles or discoveries regardless of the form in which they are described, explained, illustrated or embodied. [Joaquin Jr. et al vs. Drilon, et al, G.R. No. 108946 (1999)] No one may claim originality as to facts as these do not owe their origin to an act of authorship. The first person to find and report a particular fact has not created the same; he has merely discovered its existence. [Feist Publication v Rural Telephone Services, 499 U.S. 340 (1991)]

D.2. WORKS OF THE GOVERNMENT OF THE PHILIPPINES

General Rule: Government cannot own copyright Exceptions: (1) When copyright is assigned or bequested in favor of the government [Sec 176.3]; (2) Author of speeches, lectures, sermons, addresses and dissertations shall have exclusive right of making a collection of his work. However, prior approval of the government agency or the office wherein the work is created shall be necessary for the exploitation of such work for profit. [Sec. 176.1] Notwithstanding the foregoing provisions, the Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest or otherwise; nor shall publication or republication by the Government in a public document of any work in which copyright is subsisting be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such work without the consent of the copyright owner. [Sec. 176.3, RA 8293]

D.3. WORKS OF THE PUBLIC DOMAIN These include works copyright has expired.

whose

term

of

D.4. USEFUL ARTICLES Useful Article Doctrine: Works whose sole purpose is utilitarian have no separate artistic value. This can be distinguished from a work of applied art, which has utilitarian functions but there is an identifiable artistic work or creation incorporated thereto.

W ork of the Government of the Philippines: Is a work created by an officer or employee of the Philippine Government or any of its subdivisions and instrumentalities, including governmentowned or controlled corporations as a part of his regularly prescribed official duties. [Sec. 171.11, RA 8293] PAGE 288 OF 320

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E. RIGHTS OF COPYRIGHT OWNER E.1. COPYRIGHT RIGHTS

OR

ECONOMIC

Copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts: (1) Reproduction of the work or substantial portion of the work; [Sec. 177.1, RA 8293] (2) Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; [Sec. 177.2, RA 8293] (3) The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; [Sec. 177.3, RA 8293] (4) Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; [Sec. 177.4, RA 8293] (5) Public display of the original or a copy of the work; [Sec. 177.5, RA 8293]

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the reconstruction or rehabilitation in the same style as the original of a building to which that copyright relates. [Sec. 186, RA 8293] Communication to the Public of Copyrighted W orks: Includes point-topoint transmission of a work, including video on demand, and providing access to an electronic retrieval system, such as computer databases, servers, or similar electronic storage devices. Broadcasting, rebroadcasting, retransmission by cable, and broadcast and retransmission by satellite are all acts of “communication to the public” within the meaning of the IPC. [Rule 11, Copyright Safeguards and Regulations] First Public Distribution of W ork: An exclusive right of first distribution of work includes all acts involving distribution, specifically including the first importation of an original and each copy of the work into the jurisdiction of the Republic of the Philippines. [Rule 12, Copyright Safeguards and Regulations] Civil Code Provisions on Ownership of Intellectual Creation: By intellectual creation, the following persons acquire ownership:

(6) Public performance of the work; [Sec. 177.6, RA 8293]

(1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work;

(7) Other communication to the public of the work [Sec. 177.7, RA 8293]

(2) The composer; as to his musical composition;

Economic rights also give the author the right to assign or license the copyright and/or the material object in whole or in part, and they allow the owner to derive financial reward from the use of his works by others. [Sec. 180.1, RA 8293 as amended by RA 10372]

(3) The painter, sculptor, or other artist, with respect to the product of his art; (4) The scientist or technologist or any other person with regard to his discovery or invention. [Art. 721, NCC] The author and the composer, mentioned in Nos. 1 and 2 of the preceding article, shall have the ownership of their creations even before the publication of the same. Once their works are published, their rights are governed by the Copyright laws.

Copyright in a work of architecture: shall include the right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original: Provided, That the copyright in any such work shall not include the right to control PAGE 289 OF 320

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The painter, sculptor or other artist shall have dominion over the product of his art even before it is copyrighted. The scientist or technologist has the ownership of his discovery or invention even before it is patented. . [Art. 722, NCC] Letters and other private communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, the court may authorize their publication or dissemination if the public good or the interest of justice so requires. [Art. 723, NCC]

E.2. WHEN COPYRIGHT VESTS Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. [Sec. 172.2, RA 8293] The issuance of the certificates of registration and deposit as provided by Sec. 2, Rule 7 of the Copyright Safeguards and Regulations, are purely for recording the date of registration and deposit of the work, and are not conclusive as to copyright ownership (nor does it determine the time when copyright vests). [Manly Sportwear v. Dadodette Enterprises, G.R. No. 165306 (2005)]

E.3. MORAL RIGHTS The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right: (1) To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work; [Sec. 193.1, RA 8293] (2) To make any alterations of his work prior to, or to withhold it from publication; [Sec. 193.2, RA 8293]

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derogatory action in relation to, his work which would be prejudicial to his honor or reputation; [Sec. 193.3, RA 8293] (4) To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. [Sec. 193.4, RA 8293] In addition to the right to publish granted by the author, his heirs, or assigns, the publisher shall have a copyright consisting merely of the right of reproduction of the typographical arrangement of the published edition of the work. [Sec.174, RA 8293] The author of speeches, lectures, sermons, addresses, and dissertations mentioned in the preceding paragraphs shall have the exclusive right of making a collection of his works. [Sec. 176.2, Ra 8293] W aiver of Moral Rights General Rule: Moral rights can be waived in writing, expressly stating such waiver [Sec. 195, RA 8293] or by contribution to a collective work unless such is expressly reserved [Sec. 196, RA 8293]. Exceptions: Even if made in writing, waiver is still not valid if: (1) Use of the name of the author, title of his work, or his reputation with respect to any version or adaptation of his work, which because of alterations substantially tends to injure the literary or artistic reputation of another author; [Sec. 195.1, RA 8293] (2) It uses the name of the author in a work that he did not create. [Sec. 195.1, RA 8293] Moral rights are not assignable or subject to license. [Sec. 198, RA 8293] The right of an author under Section 193.1. shall last during the lifetime of the author and in perpetuity after his death while the rights under Sections 193.2. 193.3. and 193.4. shall be coterminous with the economic

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rights [Sec. 198, RA 8293 as amended by RA 10372]

E.4. RIGHTS TO PROCEEDS IN SUBSEQUENT TRANSFERS (DROIT DE SUITE OR FOLLOW UP RIGHTS) In every sale or lease of an original work of painting or sculpture or of the original manuscript of a writer or composer, subsequent to the first disposition thereof by the author, the author or his heirs shall have an inalienable right to participate in the gross proceeds of the sale or lease to the extent of five percent (5%). This right shall exist during the lifetime of the author and for fifty (50) years after his death. [Sec. 200, RA 8293] W orks not covered Prints, etchings, engravings, works of applied art, or works of similar kind wherein the author primarily derives gain from the proceeds of reproductions. (Sec. 201, RA 8293) First Sale Doctrine After the first sale of the lawfully made copy of the copyrighted work, anyone who is the owner of that copy can sell or dispose of that copy in any way without any liability for copyright infringement. The first sale of an authorized copy of the work exhausts the author’s right to control distribution of copies.

E.5. NEIGHBORING RIGHTS Performer’s Rights (1) As regards their performances, the right of authorizing: (a) The broadcasting and other communication to the public of their performance; and (b) The fixation of their unfixed performance. [Sec. 203.1, RA 8293]

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Such right shall be maintained and exercised fifty (50) years after his death, by his heirs, and in default of heirs, the government, where protection is claimed. [Sec. 204.2, RA 8293] (2) The right of authorizing the direct or indirect reproduction of their performances fixed in sound recordings, or audiovisual works or fixations in any manner or form; [Sec. 203.2, RA 8293, as amended by 10372] (3) Subject to the provisions of Section 206, the right of authorizing the first public distribution of the original and copies of their performance fixed in the sound recording or audiovisual works or fixations through sale or rental or other forms of transfer of ownership; [Sec. 203.3, RA 8293, as amended by RA 10372] (4) The right of authorizing the commercial rental to the public of the original and copies of their performances fixed in sound recordings or audiovisual works or fixations, even after distribution of them by, or pursuant to the authorization by the performer; [Sec. 203.4, RA 8293, as amended by RA 10372] (5) The right of authorizing the making available to the public of their performances fixed in sound recordings or audiovisual works or fixations, by wire or wireless means, in such a way that members of the public may access them from a place and time individually chosen by them. [Sec. 203.5, RA 8293, as amended by RA 10372] (6) Independently of a performer's economic rights, the performer, shall, as regards his live aural performances or performances fixed in sound recordings or audiovisual works or fixations, have the right to claim to be identified as the performer of his performances, except where the omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial

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to his reputation. [Sec. 204.1, RA 8293, as amended by RA 10372]

Rights of Organizations

MERCANTILE LAW Broadcasting

(7) Unless otherwise provided in the contract, in every communication to the public or broadcast of a performance subsequent to the first communication or broadcast thereof by the broadcasting organization, the performer shall be entitled to an additional remuneration equivalent to at least five percent (5%) of the original compensation he or she received for the first communication or broadcast. [Sec. 206, RA 8293]

(1) The rebroadcasting of their broadcasts; [Sec. 211.1, RA 8293]

Rights of Recordings

Must-Carry Rule: Prevents cable television companies from excluding broadcasting organization especially in those places not reached by signal. Also, the rule prevents cable television companies from depriving viewers in farflung areas the enjoyment of programs available to city viewers. [ABS-CBN Broadcasting vs. Philippine Multi-Media System, G.R. Nos. 175769-70 (2009)]

Producers

of

Sound

(1) The right to authorize the direct or indirect reproduction of their sound recordings, in any manner or form; the placing of these reproductions in the market and the right of rental or lending; [Sec. 208.1, RA 8293] (2) The right to authorize the first public distribution of the original and copies of their sound recordings through sale or rental or other forms of transferring ownership; [Sec. 208.2, RA 8293] (3) The right to authorize the commercial rental to the public of the original and copies of their sound recordings, even after distribution by them by or pursuant to authorization by the producer. [Sec. 208.3, RA 8293] (4) If a sound recording published for commercial purposes, or a reproduction of such sound recording, is used directly for broadcasting or for other communication to the public, or is publicly performed with the intention of making and enhancing profit, a single equitable remuneration for the performer or performers, and the producer of the sound recording shall be paid by the user to both the performers and the producer, who, in the absence of any agreement shall share equally. [Sec. 209, RA 8293]

(2) The recording in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of communication to the public of television broadcasts of the same; [Sec. 211.2, RA 8293] (3) The use of such records for fresh transmissions or for fresh recording. [Sec. 211.3, RA 8293]

Lim itations on Protection Sections 203, 208 and 209 shall not apply where the acts referred to in those Sections are related to: (1) The use by a natural person exclusively for his own personal purposes; (2) Using short excerpts for reporting current events; (3) Use solely for the purpose of teaching or for scientific research; and (4) Fair use of the broadcast subject to certain conditions. (Sec. 212, RA 8293) The issue in this case as WON the playing and signing of musical compositions which have been copyrighted under the provisions of the copyright law inside the restaurant constitute a performance for profit? The court ruled that the word “perform” as used in the ACT has been applied to one who plays a musical composition on a piano, thereby producing in the air sound waves

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which are heard as a music… and if the instrument he plays on is a piano plus a broadcasting apparatus, so that the waves are thrown out, not only upon the air but upon others, then he also performing a musical composition. In relation thereto it has been held that the playing of music in dine and dance establishments which was paid for by the public in purchases of food and drink constitute performance for public. The music provided for is for the purpose of entertaining and amusing customers in order to make the establishment more attractive and desirable. The expenses entailed thereby are added to the overhead of the restaurant which are either eventually charged to the price of the food and drink or the overall total of additional income produced by the bigger volume of business which the entertainment was programmed to attract. Nevertheless, the there is no infringem ent of copyright law as the composers in this case waived their right in favour of the public when they allowed their intellectual creations to become property of public domain. [Filipino Society of Composers vs Benjamin Tan, Search Results G.R. NO. L-36402 (1987)]

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Term of Protection Works

Term

For performances not Fifty (50) years incorporated in from the end of the recordings year in which the performance took place [Sec. 215.1(a), RA 8293] For sound or image and sound recordings and for performances incorporated therein

Fifty (50) years from the end of the year in which the recording took place. [Sec. 215.1(b), RA 8293]

Broadcasts

Twenty (20) years from the date the broadcast took place [Sec. 215.2, RA 8293]

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F. RULES ON OWNERSHIP OF COPYRIGHT F.1. OWNERSHIP OF COPYRIGHT W ork

Ownership

Single Creator of an Original Work

Belongs to the author of the work [Sec. 178.1, RA 8293]

Works of Joint Authorship

Belongs of the co-authors; in the absence of agreement, their rights shall be governed by the rules on co-ownership. However, if the work consists of parts that can be used separately and identified, the author of each part owns the copyright of the part he has created. [Sec. 178.2, RA 8293; Asked in ‘95, ‘04]

Work created during the course of employment

Belongs to the employee if the creation is not a part of his regular duties, even if he used the time, facilities and materials of the employer. However, belongs to the employer if the work is in the performance of the employee’s regular duties unless there is an agreement to the contrary. [Sec. 178.3, RA 8293; Asked in ‘08]

Work commissioned by a person other than the employer

The person who commissioned the work holds ownership of the work per se, but copyright remains with the creator unless there was a stipulation to the contrary. [Sec. 178.4, RA 8293; Asked in ‘95, ‘04]

Audio visual works

Belongs to the producer, author of the scenario, composer of the music, film director, and author of the adapted work. However, subject to stipulations, the producers shall exercise the copyright as may be required for the exhibition of the work, except for the right to collect license fees for the performance of musical compositions in the work. [Sec. 178.5, RA 8293]

Letters

Belongs to the writer, but the court may authorize their publication or dissemination of the public good or interest of justice requires, pursuant to Art. 723, New Civil Code. [Sec. 178.6, RA 8293]

Anonymous and pseudonymous works

Publishers are deemed to represent the authors, unless the contrary appears, the pseudonyms or adopted names leave no doubt as to the author’s identity or if the author discloses his identity. [Sec. 179, RA 8293]

Collective works

A contributor is deemed to have waived his right unless he expressly reserves it. [Sec. 196, RA 8293]

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F.2. DURATION OF COPYRIGHT W orks

Term

Original Literary and Artistic Works including Lifetime of author and for fifty (50) years after his Posthumous Works death [Sec 213.1, RA 8293] Derivative Works including Posthumous Works

Lifetime of author and for fifty (50) years after his death [Sec 213.1, RA 8293]

Joint Authorship

Lifetime of the last surviving author and for fifty (50) years after his death [Sec 213.2, RA 8293]

Anonymous or Pseudonymous Works

Fifty (50) years from date of first lawful publication [Sec. 213.3, RA 8293]

Applied Art

Twenty-five (25) years from date of making [Sec. 213.4, RA 8293]

Published Photographic Works

Fifty (50) years from publication [Sec. 213.5, RA 8293]

Unpublished Photographic Works

Fifty (50) years from the making [Sec. 213.5, RA 8293]

Published Audio-visual Works

Fifty (50) years from publication [Sec. 213.6, RA 8293]

Unpublished Audio-visual Works

Fifty (50) years from the making [Sec. 213.6, RA 8293]

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F.3. PRESUMPTION OF AUTHORSHIP The natural person whose name is indicated on a work in the usual manner as the author shall, in the absence of proof to the contrary, be presumed to be the author of the work. This provision shall be applicable even if the name is a pseudonym, where the pseudonym leaves no doubt as to the identity of the author. The person or body, corporate whose name appears on an audio-visual work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the maker of said work. [Sec. 219, RA 8293] The term of protection subsequent to the death of the author shall run from the date of his death or of publication, but such terms shall always be deemed to begin on the first day of January of the year following the event which gave rise to them. [Sec. 214, RA 8293]

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The copyright is distinct from the property in the material object subject to it. Consequently, the transfer, assignment or licensing of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work imply transfer, assignment or licensing of the copyright. [Sec. 181, RA 8293 as amended by RA 10372] The owners of copyright and related rights or their heirs may designate a society of artists, writers, composers and other rightholders to collectively manage their economic or moral rights on their behalf. For the said societies to enforce the rights of their members, they shall first secure the necessary accreditation from the Intellectual Property Office. [Sec. 183, RA 8293 as amended by RA 10372]

G. LIMITATIONS ON COPYRIGHT F.4. TRANSFER OR ASSIGNMENT OF COPYRIGHT The copyright may be assigned or licensed in whole or in part. Within the scope of the assignment or license, the assignee or licensee is entitled to all the rights and remedies which the assignor or licensor had with respect to the copyright. [Sec. 180.1, RA 8293 as amended by RA 10372] The copyright is not deemed assigned or licensed inter vivos in whole or in part unless there is a written indication of such intention. [Sec. 180.2, RA 8293 as amended by RA 10372] The submission of a literary, photographic or artistic work to a newspaper, magazine or periodical for publication shall constitute only a license to make a single publication unless a greater right is expressly granted. If two (2) or more persons jointly own a copyright or any part thereof, neither of the owners shall be entitled to grant licenses without the prior written consent of the other owner or owners. [Sec. 180.3, RA 8293]

G.1. DOCTRINE OF FAIR USE The fair use of copyrighted work for criticism, news reporting, teaching (including multiple copies for classroom use), research and similar purposes is not an infringement of copyright. A privilege, in persons other than the owner of the copyright, to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner by the copyright. It is meant to balance the monopolies enjoyed by the copyright owner with the interests of the public and of society. Decom pilation Refers to the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs. This may also constitute fair use [Sec. 185.1, RA 8293].

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The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [Sec 185.2, RA 8293] Factors to consider in determ ining Fair Use (1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work [Sec. 185.1, RA 8293; (Harper & Row v. Nation Enterprise, 471 US 539, (1985)] The format of a show is not copyrightable. [Joaquin vs Drilon, G.R. No. 108946 (1999)] A compilation is not copyrightable per se, but it is copyrightable only if its facts have been selected, coordinated, or arranged in such a way that the resulting work as a while constitutes an original work of authorship. Otherwise known as the Sweat of the Brow or Industrious Collection Test. [Feist Publications Inc vs. Rural Tel Service 499 US 340 (1991)] An exception is carved out for lawyers and officers of the court against plagiarism when writing judicial documents that will be part of court record. [In the Matter of the Charges of Plagiarism etc Against Associate Justice Mariano C. Del Castillo AM No 10-717-SC (2011)]

H. COPYRIGHT INFRINGEMENT Infringement of Copyright and Related Rights: means any violation of the rights under the Intellectual Property

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Code and/or the applicable Intellectual Property Law, including the act of any person who at the time when copyright subsists in a work has in his possession an article which he known, or ought to know, to be an infringing copy of the work f or the purpose of: (1) Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the article (2) Distributing the article for purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or (3) Trade exhibit of the article in public. [Sec. 1(l), Rule 1, Rules and Regulations on Administrative Complaints for Violation of Laws involving Intellectual Property Rights] Infringement consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright. For there to be substantial reproduction of a book, it does not necessarily require that the entire copyrighted work, or even a large portion of it, be copied. If so much is taken that the value of the original work is substantially diminished, there is an infringement of copyright and to an injurious extent, the work appropriated. It is no defense that the pirate did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he copied at his peril. In cases of infringement, copying alone is not what is prohibited. The copying must produce an “injurious effect.” [Habana et al vs. Robles et al., G.R. No. 131522 (1999)] Copyright infringement and unfair competition are not limited to the act of selling counterfeit goods. They cover a whole range of acts from copying, assembling, packaging to marketing, including the mere offering for sale of counterfeit goods. [Microsoft Corp vs. Maxicorp Inc., G.R. No. 140946 (2004)]

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A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases, did not know what works he was indirectly copying, or did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he copied at his peril. In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute a piracy. [Columbia Pictures v. CA, G.R. No. 110318 (1996)] The following shall NOT constitute infringem ent of copyright: (1) Recitation or performance of a work once it has been made accessible to the public if (1) privately done AND free of charge OR (2) strictly for a charitable or religious institution; [Sec. 184.1(a), RA 8293] (2) Making of quotations from a published work: (i) compatible with fair use, (ii) extent is justified by the purpose, (iii) source and name of the author, appearing on work, must be mentioned; [Sec. 184.1(b), RA 8293] (3) Reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works, delivered in public: (i) for information purposes, (ii) not expressly reserved, and (iii) source is already indicated; [Sec. 184.1(c), RA 8293] (4) Reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography,

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cinematography or broadcasting to the extent necessary for the purpose; [Sec. 184.1(d), RA 8293] (5) Inclusion of a work in a publication, broadcast or other communication to the public, sound recording or film if made by way of illustration for teaching purposes compatible with fair use and the source and the name of the author appearing on work, must be mentioned; [Sec. 184.1(e), RA 8293] (6) Recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of schools, universities or educational institutions. Such recording must be deleted within a reasonable period; such recording may not be made from audio-visual works which are part of the general cinema, repertoire of feature films except of brief excerpts of the work; [Sec. 184.1(f), RA 8293] (7) Making of ephemeral recordings; (i) by a broadcasting organization, (ii) by means of its work or facilities, (iii) for use in its own broadcast; [Sec. 184.1(g), RA 8293] (8) Use made of a work by or under the direction or control of the government for public interest compatible with fair use; [Sec. 184.1(h), RA 8293] (9) Public performance or the communication to the public of a work in a place where no admission fee is charged by a club on institution for charitable or educational purpose only and the aim is not profit-making; [Sec. 184.1(i), RA 8293] (10) Public display of the original or a copy of the work not made by means of a film, slide, television, image or otherwise on screen or by means of any other device or process either the work has been published, sold, given away, or transferred to another person by the author or his successor in title; [Sec. 184.1(j), RA 8293] (11) Use made of a work for the purpose of any judicial proceedings or for the

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giving of professional advice by a legal practitioner. [Sec. 184.1(k), RA 8293]

single copy of the work by reprographic reproduction:

(12) The reproduction or distribution of published articles or materials in a specialized format exclusively for the use of the blind, visually- and readingimpaired persons: Provided, That such copies and distribution shall be made on a nonprofit basis and shall indicate the copyright owner and the date of the original publication. [Sec. 184.1(l), RA 8293 as amended by RA 10372]

(1) Where the work by reason of its fragile character or rarity cannot be lent to user in its original form;

Reproduction of Published W ork General Rule: The private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work. [Sec. 187.1, RA 8293] Exceptions: Such permission shall not extend to: (1) A work of architecture in the form of building or other construction; (2) An entire book, or a substantial part thereof, or of a musical work in graphic form by reprographic means; (3) A compilation of data and other materials; (4) A computer program except as provided in Section 189; and (5) Any work in cases where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author. [187.2, RA 8293] Reprographic Libraries

Reproduction

by

Any library or archive whose activities are not for profit may, without the authorization of the author of copyright owner, make a

(2) Where the works are isolated articles contained in composite works or brief portions of other published works and the reproduction is necessary to supply them, when this is considered expedient, to persons requesting their loan for purposes of research or study instead of lending the volumes or booklets which contain them; and (3) Where the making of such a copy is in order to preserve and, if necessary in the event that it is lost, destroyed or rendered unusable, replace a copy, or to replace, in the permanent collection of another similar library or archive, a copy which has been lost, destroyed or rendered unusable and copies are not available with the publisher. [Sec. 188.1, RA 8293] It shall not be permissible to produce a volume of a work published in several volumes or to produce missing tomes or pages of magazines or similar works, unless the volume, tome or part is out of stock: Provided, That every library which, by law, is entitled to receive copies of a printed work, shall be entitled, when special reasons so require, to reproduce a copy of a published work which is considered necessary for the collection of the library but which is out of stock. [Sec. 188.2, RA 8293)] Reproduction of Computer Program The reproduction in one (1) back-up copy or adaptation of a computer program shall be permitted, without the authorization of the author of, or other owner of copyright in, a computer program, by the lawful owner of that computer program: Provided, That the copy or adaptation is necessary for: (a) The use of the computer program in conjunction with a computer for the

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purpose, and to the extent, for which the computer program has been obtained; and (b) Archival purposes, and, for the replacement of the lawfully owned copy of the computer program in the event that the lawfully obtained copy of the computer program is lost, destroyed or rendered unusable. [Sec. 189.1, RA 8293] No copy or adaptation mentioned in this Section shall be used for any purpose other than the ones determined in this Section, and any such copy or adaptation shall be destroyed in the event that continued possession of the copy of the computer program ceases to be lawful. [Sec. 189.2, RA 8293] Importation for Personal Purposes The importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances: (1) When copies of the work are not available in the Philippines and: (a) Not more than one (1) copy at one time is imported for strictly individual use only; or

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(2) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, that such copies do not exceed three (3). [Sec. 190.1, RA 8293 is repealed by RA 10372] Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor's right of action. [Sec. 190.2, RA 8293 is repealed by RA 10372] Importation and Exportation of Infringing Materials. – Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation or exportation of infringing articles prohibited under Part IV of this Act and under relevant treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported [Sec. 190, RA 8293 as amended by RA 10372]

(b) The importation is by authority of and for the use of the Philippine Government; or (c) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.

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IV. Rules of Procedure for Intellectual Property Rights Cases (A.M. No. 10-3-10 SC)

(c) It shall be the duty of the Clerk of Court to notify the Director-General of the Intellectual Property Office of any action involving a copyright, trademark, service mark, patent, industrial design, utility model, undisclosed information, and technology transfer agreement.

A. IN WHAT COURTS APPLICABLE

C. COMMENCEMENT ACTION

These Rules shall be observed by Regional Trial Courts designated by the Supreme Court as Special Commercial Courts.

B. APPLICABILITY OF REGULAR RULES General Rule: The Rules of Court (RoC) shall apply suppletorily to these Rules. Exception: When the civil or criminal action involves complex issues, the Court shall issue a special order that the regular procedure prescribed in the RoC. The following are specific rules applicable in IPR Cases: (a) Rules 2-9 of the RoC shall apply to all civil actions for violation of intellectual property rights under RA 8293 and other violations of intellectual property rights as may be defined by law. (b) Special Commercial Courts in Quezon City, Makati, Manila, and Pasig shall have authority to act on applications for the issuance of writs of search and seizure in civil actions for violations of the Code, enforceable nationwide. Special Commercial Courts have concurrent jurisdiction over applications enforceable within their own jurisdiction for violations within the judicial region.

OF

CIVIL

C.1. PLEADINGS The only pleadings allowed to be filed are the complaints, compulsory counterclaims, and cross-claims pleaded in the answer, and the answers thereto. All of them shall be verified.

C.2. WHO MAY FILE (a) Any IPR owner, or anyone possessing any right, title, or interest under claim of ownership in any IPR, whose right may have been violated; (b) Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement relating to IPR or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to Filipinos by law; (c) Any foreign national or juridical person who meets the requirements of the preceding paragraph, and does not engage business in the Philippines.

C.3. FORM AND CONTENTS OF THE PETITION (1) Full names of parties to the case; (2) Facts showing capacity of parties to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, or the legal existence of an

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organized association of persons that is made a party; (3) ultimate facts showing the cause of action (4) reliefs sought; (5) an affidavit in question-and-answer format must be attached to the complaint. Such affidavit shall state only the facts of direct personal knowledge to the affiants which are admissible in evidence, and shows the competence of the affiants to testify.

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goods, order the return of such goods. Such motion must be filed within 60 days from the expiration of the period to file cases. If the owner fails to file the motion, the Court may dispose of the goods after notice and hearing.

C.6. SUMMONS Summons shall be served no later than 5 days from receipt of the complaint.

(6) Certificate of non-forum shopping.

C.7. ANSWER

C.4. PROHIBITED PLEADINGS

Must be filed 15 days after service of summons; 10 days if answer to compulsory counterclaim or cross-claim.

(a) Motion to dismiss (b) Motion for bill of particulars (c) Motion for reconsideration of a final order judgment, except with regard to an order of destruction

Should the defendant fail to answer, the Court may, motu proprio or upon motion of the plaintiff, render judgment based on the affidavits and the evidence on record unless it requires the submission of additional evidence.

(d) Reply (e) Petition for relief from judgment (f) Motion for extention of time to submit pleadings, except for meritorious reasons (g) Motion for postponement intended for delay (h) Third-party complaint (i) Intervention (j) Motion to hear affirmative defenses (k) Any petition or motion with similar effect to the foregoing.

C.5. FAILURE TO FILE COMPLAINT WHERE A WRIT OF SEARCH AND SEIZURE IS ISSUED Applicant has 31 days from issuance of writ to file a case before the appropriate court or quasi-judicial agency. For failure to file a case, the Court may, upon motion of the owner of the seized

D. MODES OF DISCOVERY A party may avail of the different modes of discovery not later than 30 days from the joinder of issues. Any objection must be made within 10 days from receipt of the request for discovery and only on the ground that the matter requested is manifestly incompetent, irrelevant, immaterial, privileged in nature or for harassment. A comment on the objection may be made in writing within 3 days from receipt of the same. The Court then has 10 days to decide on the objection. Compliance with any mode of discovery shall be made within 10 days from receipt of the request for discovery, or from notice of the ruling of the court. Sanctions provided in the RoC in relation to the modes of discovery shall apply.

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E. PRE-TRIAL

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H. COMMON RULES ADMISSIBILITY OF EVIDENCE

ON

The Court shall set the case for pre-trial 5 days after the after the period for availing modes of discovery or compliance whichever comes later.

Good faith NOT a defense, unless the defendant or accused claims to be a prior user.

The Court shall then direct the parties to appear before the Philippine Mediation Center in accordance with mediation rules. Should parties fail to settle the case at mediation, the Court shall conduct JDR conferences.

All official records kept in a foreign country, including certificates of registration, are admissible in the Philippines if authenticated by the consular office of the Philippines having jurisdiction over the country where such records are kept.

If either fails, the case shall be sent back to the court for pre-trial.

Authentication of documents may subject of agreement of the parties.

F. CLARIFICATORY AND TRIAL

HEARINGS

Clarificatory hearings must be conducted within 30 days from pre-trial, to be completed not later than 15 days thereafter.

be

The deposition of foreign witnesses must be made 6 months following the order of deposition, unless failure to take the deposition is caused by fortuitous event, fraud, accident, mistake, or excusable negligence. Presumptions in the Intellectual Property Code shall apply to these Rules.

Immediately after the termination of the clarificatory hearings the parties must submit their position papers within 10 days.

I. EVIDENCE IN PATENT CASES

The judicial affidavits attached to the position papers shall serve as the direct testimony of the witnesses, subject to crossexamination.

Subject matter is a patent for process for obtaining a product:

The period of trial shall be 30 days allotted to the plaintiff and defendant.

Any identical product is presumed to have been obtained through the use of the patented process if:

After an oral ruling on the last offer of evidence, the Court shall direct the parties to submit their respective draft decisions within a non-extendible period of 30 days from receipt of order.

(1) The product is new;

G. COMMENCEMENT OF CRIMINAL ACTION

In such cases the Court shall order the defendant/accused to show that the process he used to obtain the identical product is different from the patented process.

A criminal action is commenced by the filing of an information after a prior verified complaint is filed under Rule 112 of the RoC.

(2) There is substantial likelihood that the product was made by the process and that the owner of the patent has been unable, despite reasonable efforts, to determine the process actually used.

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Presumptions concerning patents:

Likelihood of confusion

(1) A letters patent issued by the IPO is prima facie evidence of its existence and validity during the term specified, unless cancelled or voided by final judgment.

In determining likelihood of confusion, the Court must consider the general impression of the ordinary purchaser, buying under the normally prevalent conditions of trade, and giving such attention buyers normally give in buying that class of goods.

(2) Letters patent issued by the IPO are presumed to have been validly issued unless overcome by evidence of irregularity.

The following factors are taken into account:

(3) It is presumed that the defendant/accused is aware of the existence of the patent if the words "Philippine patent" with the patent number are written on:

(1) Strength of the plaintiff's mark (2) Degree of similarity between the plaintiff's and the defendant's marks

(a) the patented invention or the product manufactured using the patented process

(3) Proximity of the products or services.

(b) on the container or the package in which said article is supplied to the public

(5) Evidence of actual confusion

(4) Likelihood that the plaintiff will bridge the gap (6) Defendant's good faith in adopting the mark

(c) on the advertising material related to the patented invention or process.

(7) Quality of the defendant's service (8) Sophistication of the buyers

J. EVIDENCE IN TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION CASES A certificate of registration shall be prima facie evidence of: (1) The validity of the registration (2) The registrant's ownership of the mark (3) The registrant's right to exclusively use the same

Colorable imitation Denotes a close or ingenious imitation as calculated to deceive ordinary persons, or such a resemblance to the original as to deceive an ordinary purchaser giving such attention as a purchaser usually gives, as to cause him to purchase the one supposing it to be the other. Intent to Defraud There is a presumption of an intent to defraud:

Determination of a well-known m ark Knowledge of the relevant sector of the public, rather than the knowledge of the general public, shall be taken into account. (for the criteria in determining a well-known mark, see Determinants, supra.)

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(1) When the defendant passes of a product as his by using imitative devices, signs, or marks on the general appearance of the goods, misleading purchasers into buying his merchandise under the impression that they are buying that of his competitors.

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(2) When the defendant makes a false statement in the course of trade to discredit the goods and business of another. (3) Where the similarity of the goods as packed and offered for sale is so striking.

K. EVIDENCE CASES

IN

COPYRIGHT

Presumption of Copyright Copyright is presumed to subsist and ownership thereof shall be presumed to belong to the complainant if he so claims through affidavit evidence, unless defendant attaches proof to the contrary in his answer to the complaint. Mere denial of the subsistence of the copyright based on lack of knowledge shall not be sufficient to rebut the presumption. Effect of registration and deposit Registration and deposit of copyrighted work is not a condition sine qua non to a claim of copyright infringement.

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(b) Where the statement is contradicted by another statement in the register.

L. ORDER OF DESTRUCTION At any time after the filing of the complaint or information, the Court, upon motion and after due notice and hearing where the violation of the intellectual property rights of the owner is established, may order the destruction of the seized infringing goods, objects and devices, including but not limited to, sales invoices, other documents evidencing sales, labels, signs, prints, packages, wrappers, receptacles, and advertisements and the like used in the infringing act. The hearing shall be summary in nature with notice of hearing addressed to defendant to afford him opportunity to oppose the motion. Conditions Destruction

International registration of works A statement concerning a work, recorded in an international register in accordance with an international treaty to which the Philippines is or may become a party, shall be construed as true until the contrary is proved, except: (a) Where the statement cannot be valid under the Intellectual Property Code or any other law concerning intellectual property;

for

the

Order

of

(a) Inventory and photographs of the seized infringing goods taken before destruction (b) Taking and inventory must be witnessed by the (i) accused, counsel or agent; (ii) the complainant, his representative, or counsel, (c) A representative sample of the seized goods must be retained for evidentiary purposes (d) An inventory of the samples must have been made (e) The officer authorized to supervise the destruction has submitted a report thereon within 5 days from the date of the destruction (f) Posting of a bond by the applicant

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SPECIAL LAWS \

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I. The Chattel Mortgage Law and Real Estate Mortgage Law (Now part of Civil Law)

II. Anti-Money Laundering Act (R.A. 9160, as amended by R.A. 9194 and R.A. 10365) A. POLICY OF THE LAW It is the policy of the State to protect and preserve the integrity and confidentiality of bank accounts and to ensure that the Philippines shall not be used as a money laundering site for the proceeds of any unlawful activity. Consistent with its foreign policy, the State shall extend cooperation in transnational investigations and prosecutions of persons involved in money laundering activities wherever committed. (Sec. 2)

B. COVERED INSTITUTIONS RA 9160 (1) banks, non-banks, quasi-banks, trust entities, and all other institutions and their subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas (BSP)

(2) insurance companies and all other institutions supervised or regulated by the Insurance Commission

RA 10365 (1) banks, non-banks, quasi-banks, trust entities, foreign exchange dealers, pawnshops, m oney changers, rem ittance and transfer com panies and other sim ilar entities and all other persons and their subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas (BSP) (2) insurance companies, preneed com panies and all other persons supervised or regulated by the Insurance

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RA 9160 (3) (i) securities dealers, brokers, salesmen, investment houses and other similar entities managing securities or rendering services as investment agent, advisor, or consultant, (ii) mutual funds, close-end investment companies, common trust funds, pre-need companies and other similar entities, (iii) foreign exchange corporations, money changers, money payment, remittance, and transfer companies and other similar entities, and (iv) other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by Securities and Exchange Commission

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RA 10365 Commission (IC) (3) (i) securities dealers, brokers, salesmen, investment houses and other similar persons managing securities or rendering services as investment agent, advisor, or consultant, (ii) mutual funds, close-end investment companies, common trust funds, and other similar persons, and (iii) other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by the Securities and Exchange Commission (SEC)

(4) jewelry dealers in precious metals, who, as a business, trade in precious metals, for transactions in excess of One million pesos (P1,000,000.00) (5) jewelry dealers in precious stones, who, as a business, trade

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RA 10365 in precious stones, for transactions in excess of One million pesos (P1,000,000.00) (6) company service providers which, as a business, provide any of the following services to third parties: (i) acting as a formation agent of juridical persons; (ii) acting as (or arranging for another person to act as) a director or corporate secretary of a company, a partner of a partnership, or a similar position in relation to other juridical persons; (iii) providing a registered office, business address or accommodation, correspondence or administrative address for a company, a partnership or any other legal person or arrangement; and (iv) acting as (or arranging for another person to act as) a nominee shareholder for another person; and (7) persons who provide any of the following services: (i) managing of client money, securities or other assets; (ii) management of bank, savings or securities accounts; (iii) organization of contributions for the creation, operation or management of

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RA 9160

RA 10365 companies; and (iv) creation, operation or management of juridical persons or arrangements, and buying and selling business entities. Notwithstanding the foregoing, the term ‘covered persons’ shall exclude lawyers and accountants acting as independent legal professionals in relation to information concerning their clients or where disclosure of information would compromise client confidences or the attorney-client relationship: Provided, That these lawyers and accountants are authorized to practice in the Philippines and shall continue to be subject to the provisions of their respective codes of conduct and/or professional responsibility or any of its amendments.

C. OBLIGATIONS OF COVERED INSTITUTIONS (1) Customer Identification (2) Record Keeping (3) Reporting of Covered and Suspicious Transactions (Sec. 9) Customer Identification Covered institutions shall establish and record the true identity of its clients based on official documents. They shall maintain a

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system of verifying the true identity of their clients and, in case of corporate clients, require a system of verifying their legal existence and organizational structure, as well as the authority and identification of all persons purporting to act on their behalf. The provisions of existing laws to the contrary notwithstanding, anonymous accounts, accounts under fictitious names, and all other similar accounts shall be absolutely prohibited. Peso and foreign currency nonchecking numbered accounts shall be allowed. The BSP may conduct annual testing solely limited to the determination of the existence and true identity of the owners of such accounts. Record Keeping All records of all transactions of covered institutions shall be maintained and safely stored for five (5) years from the dates of transactions. With respect to closed accounts, the records on customer identification, account files and business correspondence, shall be preserved and safely stored for at least five (5) years from the dates when they were closed. Reporting of Covered and Suspicious Transactions RA 9160 Covered institutions shall report to the AMLC all covered transactions within five (5) working days from occurrence thereof, unless the Supervising Authority concerned prescribes a longer period not exceeding ten (10) working days. When reporting covered transactions to the AMLC, covered institutions and their officers, employees, representatives, agents, advisors,

RA 10365 Covered persons shall report to the AMLC all covered transactions and suspicious transactions within five (5) working days from occurrence thereof, unless the AMLC prescribes a different period not exceeding fifteen (15) working days. Lawyers and accountants acting as independent legal professionals are not required to report covered and

MERCANTILE LAW

RA 9160 consultants or associates shall not be deemed to have violated Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791 and other similar laws, but are prohibited from communicating, directly or indirectly, in any manner or by any means, to any person the fact that a covered transaction report was made, the contents thereof, or any other information in relation thereto. In case of violation thereof, the concerned officer, employee, representative, agent, advisor, consultant or associate of the covered institution, shall be criminally liable. However, no administrative, criminal or civil proceedings, shall lie against any person for having made a covered transaction report in the regular performance of his duties and in good faith, whether or not such reporting results in any criminal prosecution under this Act or any other Philippine law. When reporting covered transactions to the AMLC, covered institutions and their

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RA 10365 suspicious transactions if the relevant information was obtained in circumstances where they are subject to professional secrecy or legal professional privilege. “x x x “x x x “When reporting covered or suspicious transactions to the AMLC, covered persons and their officers and employees are prohibited from communicating, directly or indirectly, in any manner or by any means, to any person or entity, the media, the fact that a covered or suspicious transaction has been reported or is about to be reported, the contents of the report, or any other information in relation thereto. Neither may such reporting be published or aired in any manner or form by the mass media”, electronic mail, or other similar devices. In case of violation thereof, the concerned officer and employee of the covered person and media shall be held criminally liable.

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RA 9160 officers, employees, representatives, agents, advisors, consultants or associates are prohibited from communicating, directly or indirectly, in any manner or by any means, to any person, entity, the media, the fact that a covered transaction report was made, the contents thereof, or any other information in relation thereto. Neither may such reporting be published or aired in any manner or form by the mass media, electronic mail, or other similar devices. In case of violation thereof, the concerned officer, employee, representative, agent, advisor, consultant or associate of the covered institution, or media shall be held criminally liable.

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RA 10365

RA 9160 banking days except those between a covered institution and a person who, at the time of the transaction was a properly identified client and the amount is commensurate with the business or financial capacity of the client; or those with an underlying legal or trade obligation, purpose, origin or economic justification. It likewise refers to a single, series or combination or pattern of unusually large and complex transactions in excess of Four million Philippine pesos (Php4,000,000.00) especially cash deposits and investments having no credible purpose or origin, underlying trade obligation or contract.

RA 9194

E. SUSPICIOUS TRANSACTIONS

D. COVERED TRANSACTIONS RA 9160 (b) "Covered transaction" is a single, series, or combination of transactions involving a total amount in excess of Four million Philippine pesos (Php4,000,000.00) or an equivalent amount in foreign currency based on the prevailing exchange rate within five (5) consecutive

MERCANTILE LAW

RA 9194 (b) 'Covered transaction' is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of Five hundred thousand pesos (P500,000.00) within one (1) banking day.

Transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist: (1) There is no underlying legal or trade obligation, purpose or economic justification; (2) The client is not properly identified; (3) The amount involved is not commensurate with the business or financial capacity of the client; (4) Taking into account all known circumstances, it may be perceived that the client’s transaction is structured in order to avoid being the subject of reporting requirements under the Act; (5) Any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the

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client’s past transactions with the covered institution; (6) The transaction is in anyway related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or (7) Any transaction that is similar or analogous to any of the foregoing (Sec. 3 [b-1], added by Sec. 2 of RA 9194)

F. WHEN IS MONEY LAUNDERING COMMITTED RA 9160 SEC. 4. Money Laundering Offense. – Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. (a) Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property. (b) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above. (c) Any person

MERCANTILE LAW

RA 9160 knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so.

RA 10365 SEC. 4. Money Laundering Offense. – Money laundering is committed by any person who, knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity (a) transacts said monetary instrument or property;

(b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property

(c) conceals or

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RA 10365 disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property; (d) attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c); (e) aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above (f) performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraphs (a), (b) or (c) above. Money laundering is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so.

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G. UNLAWFUL ACTIVITIES OR PREDICATE CRIMES RA 9160 (1) Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the Revised Penal Code, as amended;

RA 9194 (1) Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the Revised Penal Code, as amended;

RA 10365 (1) Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the Revised Penal Code, as amended;

(2) Sections 3, 4, 5, 7, 8 and 9 of Article Two of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972;

(2) Sections 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, and 16 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002;

(2) Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002;

(3) Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as amended; otherwise known as the Anti-Graft and Corrupt Practices Act;

(3) Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act;

(3) Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act;

(4) Plunder under Republic Act No. 7080, as amended;

(4) Plunder under Republic Act No. 7080, as amended;

(4) Plunder under Republic Act No. 7080, as amended;

(5) Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended;

(5) Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended;

(5) Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended;

(6) Jueteng and Masiao punished as illegal gambling under Presidential Decree No. 1602;

(6) Jueteng and Masiao punished as illegal gambling under Presidential Decree No. 1602;

(6) Jueteng and Masiao punished as illegal gambling under Presidential Decree No. 1602;

(7) Piracy on the high seas under the Revised Penal Code, as amended and Presidential Decree No. 532;

(7) Piracy on the high seas under the Revised Penal Code, as amended and Presidential Decree No. 532;

(7) Piracy on the high seas under the Revised Penal Code, as amended and Presidential Decree No. 532;

(8) Qualified theft under Article 310 of the Revised Penal Code, as amended;

(8) Qualified theft under Article 310 of the Revised Penal Code, as amended;

(8) Qualified theft under Article 310 of the Revised Penal Code, as amended

(9) Swindling under Article 315 of the Revised Penal Code, as amended;

"(9) Swindling under Article 315 of the Revised Penal Code, as amended

(9) Swindling under Article 315 and Other Forms of Swindling under Article 316 of the Revised Penal Code, as amended

(10) Smuggling under Republic Act Nos. 455 and 1937;

(10) Smuggling under Republic Act Nos. 455 and 1937;

(10) Smuggling under Republic Act Nos. 455 and 1937

(11) Violations under Republic Act No. 8792, otherwise known as the Electronic Commerce Act of 2000;

"(11) Violations under Republic Act No. 8792, otherwise known as the Electronic Commerce Act of 2000;

(11) Violations of Republic Act No. 8792, otherwise known as the Electronic Commerce Act of 2000;

(12) Hijacking and other violations under Republic Act

(12) Hijacking and other violations under Republic Act

(12) Hijacking and other violations under Republic Act

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RA 9160 No. 6235; destructive arson and murder, as defined under the Revised Penal Code, as amended, including those perpetrated by terrorists against non-combatant persons and similar targets;

RA 9194 No. 6235; destructive arson and murder, as defined under the Revised Penal Code, as amended, including those perpetrated by terrorists against non-combatant persons and similar targets;

RA 10365 No. 6235; destructive arson and murder, as defined under the Revised Penal Code, as amended

(13) Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the Securities Regulation Code of 2000;

(13) Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the Securities Regulation Code of 2000;

(33) Fraudulent practices and other violations under Republic Act No. 8799, otherwise known as the Securities Regulation Code of 2000

(14) Felonies or offenses of a similar nature that are punishable under the penal laws of other countries.

(14) Felonies or offenses of a similar nature that are punishable under the penal laws of other countries.

(34) Felonies or offenses of a similar nature that are punishable under the penal laws of other countries.

In addition to the amendments to the aforesaid provisions, RA 10365 added the following as unlawful activities: (13) Terrorism and conspiracy to commit terrorism as defined and penalized under Sections 3 and 4 of Republic Act No. 9372; (14) Financing of terrorism under Section 4 and offenses punishable under Sections 5, 6, 7 and 8 of Republic Act No. 10168, otherwise known as the Terrorism Financing Prevention and Suppression Act of 2012: (15) Bribery under Articles 210, 211 and 211-A of the Revised Penal Code, as amended, and Corruption of Public Officers under Article 212 of the Revised Penal Code, as amended; (16) Frauds and Illegal Exactions and Transactions under Articles 213, 214, 215 and 216 of the Revised Penal Code, as amended; (17) Malversation of Public Funds and Property under Articles 217 and 222 of the Revised Penal Code, as amended; (18) Forgeries and Counterfeiting under Articles 163, 166, 167, 168, 169 and 176 of the Revised Penal Code, as amended;

(19) Violations of Sections 4 to 6 of Republic Act No. 9208, otherwise known as the AntiTrafficking in Persons Act of 2003; (20) Violations of Sections 78 to 79 of Chapter IV, of Presidential Decree No. 705, otherwise known as the Revised Forestry Code of the Philippines, as amended; (21) Violations of Sections 86 to 106 of Chapter VI, of Republic Act No. 8550, otherwise known as the Philippine Fisheries Code of 1998; (22) Violations of Sections 101 to 107, and 110 of Republic Act No. 7942, otherwise known as the Philippine Mining Act of 1995; (23) Violations of Section 27(c), (e), (f), (g) and (i), of Republic Act No. 9147, otherwise known as the Wildlife Resources Conservation and Protection Act; (24) Violation of Section 7(b) of Republic Act No. 9072, otherwise known as the National Caves and Cave Resources Management Protection Act; (25) Violation of Republic Act No. 6539, otherwise known as the Anti-Carnapping Act of 2002, as amended;

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(26) Violations of Sections 1, 3 and 5 of Presidential Decree No. 1866, as amended, otherwise known as the decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or Explosives; (27) Violation of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law;

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(29) Violation of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines; (30) Violation of Section 4 of Republic Act No. 9995, otherwise known as the Anti-Photo and Video Voyeurism Act of 2009; (31) Violation of Section 4 of Republic Act No. 9775, otherwise known as the Anti-Child Pornography Act of 2009;

(28) Violation of Section 6 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act No. 10022;

(32) Violations of Sections 5, 7, 8, 9, 10(c), (d) and (e), 11, 12 and 14 of Republic Act No. 7610, otherwise known as the Special Protection of Children Against Abuse, Exploitation and Discrimination

H. ANTI-MONEY LAUNDERING COUNCIL (AMLC)

through the Office of the Solicitor General; (4) to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses; (5) to investigate suspicious transactions and covered transactions deemed suspicious after an investigation by AMLC, money laundering activities, and other violations of this Act; (6) to apply before the Court of Appeals, ex parte, for the freezing of any monetary instrument or property alleged to be the proceeds of any unlawful activity as defined in Section 3(i) hereof; (7) to implement such measures as may be necessary and justified under this Act to counteract money laundering; (8) to receive and take action in respect of, any request from foreign states for assistance in their own anti-money laundering operations provided in this Act; (9) to develop educational programs on the pernicious effects of money laundering, the methods and techniques used in money laundering, the viable means of preventing money laundering and the effective ways of prosecuting and punishing offenders; (10) to enlist the assistance of any branch, department, bureau, office, agency or instrumentality of the government,

The Anti-Money Laundering Council shall be composed of the Governor of the Bangko Sentral ng Pilipinas as chairman, the Commissioner of the Insurance Commission and the Chairman of the Securities and Exchange Commission as members. (Sec. 7) H.1. FUNCTIONS The AMLC shall act unanimously in the discharge of its functions as defined hereunder: (1) to require and receive covered or suspicious transaction reports from covered institutions; (2) to issue orders addressed to the appropriate Supervising Authority or the covered institution to determine the true identity of the owner of any monetary instrument or property subject of a covered transaction or suspicious transaction report or request for assistance from a foreign State, or believed by the Council, on the basis of substantial evidence, to be, in whole or in part, wherever located, representing, involving, or related to, directly or indirectly, in any manner or by any means, the proceeds of an unlawful activity. (3) to institute civil forfeiture proceedings and all other remedial proceedings

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including government-owned and controlled corporations, in undertaking any and all anti-money laundering operations, which may include the use of its personnel, facilities and resources for the more resolute prevention, detection and investigation of money laundering offenses and prosecution of offenders; and to impose administrative sanctions for the violation of laws, rules, regulations and orders and resolutions issued pursuant thereto. (Sec. 7)

Sec. 6 of RA 10365 added the following power to the AMLC: (12) to require the Land Registration Authority and all its Registries of Deeds to submit to the AMLC, reports on all real estate transactions involving an amount in excess of Five hundred thousand pesos (P500,000.00) within fifteen (15) days from the date of registration of the transaction, in a form to be prescribed by the AMLC. The AMLC may also require the Land Registration Authority and all its Registries of Deeds to submit copies of relevant documents of all real estate transactions.

I. FREEZING OF MONETARY INSTRUMENT OR PROPERTY RA 9160 Upon determination that probable cause exists that any deposit or similar account is in any way related to an unlawful activity, the AMLC may issue a freeze order, which shall be effective immediately, on the account for a period not exceeding fifteen (15) days. Notice to the depositor that his account has been frozen shall be issued simultaneously with

RA 10365 Upon a verified ex parte petition by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, the Court of Appeals may issue a freeze order which shall be effective immediately, and which shall not exceed six (6)

MERCANTILE LAW

RA 9160 the issuance of the freeze order. The depositor shall have seventy-two (72) hours upon receipt of the notice to explain why the freeze order should be lifted. The AMLC has seventytwo (72) hours to dispose of the depositor’s explanation. If it fails to act within seventytwo (72) hours from receipt of the depositor’s explanation, the freeze order shall automatically be dissolved. The fifteen (15)-day freeze order of the AMLC may be extended upon order of the court, provided that the fifteen (15)day period shall be tolled pending the court’s decision to extend the period. No court shall issue a temporary restraining order or writ of injunction against any freeze order issued by the AMLC except the Court of Appeals or the Supreme Court.

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RA 10365 months depending upon the circumstances of the case: Provided, That if there is no case filed against a person whose account has been frozen within the period determined by the court, the freeze order shall be deemed ipso facto lifted: Provided, further, That this new rule shall not apply to pending cases in the courts. In any case, the court should act on the petition to freeze within twenty-four (24) hours from filing of the petition. If the application is filed a day before a nonworking day, the computation of the twenty-four (24)hour period shall exclude the nonworking days. A person whose account has been frozen may file a motion to lift the freeze order and the court must resolve this motion before the expiration of the freeze order. No court shall issue a temporary restraining order or a writ of injunction against any freeze order, except the Supreme Court.”

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J. AUTHORITY TO INQUIRE INTO BANK DEPOSITS Notwithstanding the provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that— (1) there is probable cause that the deposits OR (2) investments involved are related to an unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof; except that no court order shall be required in cases involving unlawful activities defined in Sections 3(i)(1), (2) and (12). To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into or examine any deposit or investment with any banking institution or non-bank financial institution when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP. (Sec.11) Sec. 2 of RA 10167 amended Sec. 11 to read as follows: “Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791; and other laws, the AMLC may inquire into or examine any particular deposit or investment, including related accounts, with any banking institution or non-bank financial institution upon order of any competent court based on an ex parte application in cases of violations of this Act, when it has been established that there is probable cause that the deposits or investments, including related accounts involved, are related to an unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof; except that no court order shall be required in cases involving activities defined in Section 3(i)(1), (2), and (12) hereof, and felonies or

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offenses of a nature similar to those mentioned in Section 3(i)(1), (2), and (12), which are Punishable under the penal laws of other countries, and terrorism and conspiracy to commit terrorism as defined and penalized under Republic Act No. 9372." "The Court of Appeals shall act on the application to inquire into or examine any deposit or investment with any banking institution or non-bank financial institution within twenty-four (24) hours from filing of the application." "To ensure compliance with this Act, the Bangko Sentral ng Pilipinas may, in the course of a periodic or special examination, check the compliance of a Covered institution with the requirements of the AMLA and its implementing rules and regulations." "For purposes of this section, ‘related accounts’ shall refer to accounts, the funds and sources of which originated from and/or are materially linked to the monetary instrument(s) or property(ies) subject of the freeze order(s)." "A court order ex parte must first be obtained before the AMLC can inquire into these related Accounts: Provided, That the procedure for the ex parte application of the ex parte court order for the principal account shall be the same with that of the related accounts." "The authority to inquire into or examine the main account and the related accounts shall comply with the requirements of Article III, Sections 2 and 3 of the 1987 Constitution, which are hereby incorporated by reference." Amendments under RA 9194 (a) Expands the reporting requirements to include the reporting of suspicious transactions regardless of the amount involved (b) Authorizes AMLC to inquire into or examine any particular deposit or investment, with any banking institution or non-bank financial institution and their subsidiaries and affiliates upon order of any competent court in cases of violation

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of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activity. However, no court order is required in cases involving unlawful activities of kidnapping for ransom, narcotics offenses and hijacking, destructive arson and murder, including those perpetrated by terrorists against non-combatant persons and similar targets. (c) Authorizes the Bangko Sentral ng Pilipinas to inquire into or examine any deposit or investment with any banking institution or non-bank financial institution and their subsidiaries and affiliates when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP to ensure compliance with R.A. No. 9160, as amended. (d) Transfers the authority to freeze any money/property from the AMLC to the Court of Appeals.

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III. Foreign Investments Act (R.A. 7042) A. POLICY OF THE LAW It is the policy of the State to attract, promote and welcome productive investments from foreign individuals, partnerships, corporations, and governments, including their political subdivisions, in activities which significantly contribute to national industrialization and socio-economic development to the extent that foreign investment is allowed in such activity by the Constitution and relevant laws. Foreign investments shall be encouraged in enterprises that significantly expand livelihood and employment opportunities for Filipinos; enhance economic value of farm products; promote the welfare of Filipino consumers; expand the scope, quality and volume of exports and their access to foreign markets; and/or transfer relevant technologies in agriculture, industry and support services. Foreign investments shall be welcome as a supplement to Filipino capital and technology in those enterprises serving mainly the domestic market. As a general rule, there are no restrictions on extent of foreign ownership of export enterprises. In domestic market enterprises, foreigners can invest as much as one hundred percent (100%) equity except in areas included in the negative list. Foreign owned firms catering mainly to the domestic market shall be encouraged to undertake measures that will gradually increase Filipino participation in their businesses by taking in Filipino partners, electing Filipinos to the board of directors, implementing transfer of technology to Filipinos, generating more employment for the economy and enhancing skills of Filipino workers. (Sec. 2)

B. DEFINITION OF TERMS B.1. FOREIGN INVESTMENT An equity investment made by a non Philippine national in the form of foreign exchange and/or other assets actually transferred to the Philippines and duly registered with the Central Bank which shall PAGE 317 OF 320

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assess and appraise the value of such assets other than foreign exchange. (Sec. 3[c]) B.2. “DOING BUSINESS” IN THE PHILIPPINES Includes: (e) soliciting orders, service contracts, opening offices, whether called “liaison” offices or branches; (f) appointing representatives or distributors domiciled in the Philippines or who in any calendar year stay in the country for a period or periods totalling one hundred eighty (180) days or more; (g) participating in the management, supervision or control of any domestic business, firm, entity or corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization Provided, however, That the phrase “doing business” shall not be deemed to include mere investment as a shareholder by a foreign entity in domestic corporations duly registered to do business, and/or the exercise of rights as such investor; nor having a nominee director or officer to represent its interests in such corporation; nor appointing a representative or distributor domiciled in the Philippines which transacts business in its own name and for its own account (Sec. 3 [d]) B.3. EXPORT ENTERPRISE An enterprise wherein a manufacturer, processor or service (including tourism) enterprise exports sixty percent (60%) or more of its output, or wherein a trader purchases products domestically and exports sixty percent (60%) or more of such purchases (Sec. 3 [e]) B.4. DOMESTIC MARKET ENTERPRISE An enterprise which produces goods for sale, or renders services to the domestic market entirely or if exporting a portion of its output fails to consistently export at least sixty percent (60%) thereof (Sec. 3 [f])

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C. REGISTRATION OF INVESTMENTS ON NON-PHILIPPINE NATIONALS Philippine National (1) Citizen of the Philippines (2) Domestic partnership or association wholly owned by citizens of the Philippines (3) Corporation organized under the laws of the Philippines of which at least 60% of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines (4) Corporation organized abroad and registered as doing business in the Philippines under the Corporation Code of which 100% of the capital stock outstanding and entitled to vote is wholly owned by Filipinos (5) A trustee of funds for pension or other employee retirement, where the trustee is a Philippine national and at least 60% of the fund will accrue to the benefit of Philippine nationals Provided, That where a corporation and its non-Filipino stockholders own stocks in a Securities and Exchange Commission (SEC) registered enterprise, at least sixty percent (60%) of the capital stock outstanding and entitled to vote of each of both corporations must be owned and held by citizens of the Philippines and at least sixty percent (60%) of the members of the Board of Directors of each of both corporations must be citizens of the Philippines, in order that the corporation shall be considered a Philippine national (Sec. 3[a]) Registration of Investments on NonPhilippine Nationals Without need of prior approval, a nonPhilippine national may, upon registration with the Securities and Exchange Commission (SEC), or with the Bureau of Trade Regulation and Consumer Protection (BTRCP) of the Department of Trade and Industry in the case of single proprietorships, do business as defined in Section 3 (d) of this Act or invest in a domestic enterprise up to one hundred percent (100%) of its capital, unless participation of non-Philippine nationals in the enterprise is prohibited or

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limited to a smaller percentage by existing law and/or under the provisions of this Act. The SEC or BTRCP, as the case may be, shall not impose any limitations on the extent of foreign ownership in an enterprise additional to those provided in this Act: Provided, however, That any enterprise seeking to avail of incentives under the Omnibus Investment Code of 1987 must apply for registration with the Board of Investments (BOI), which shall process such application for registration in accordance with the criteria for evaluation prescribed in said Code: Provided, finally, That a non-Philippine national intending to engage in the same line of business as an existing joint venture, in which he or his majority shareholder is a substantial partner, must disclose the fact and the names and addresses of the partners in the existing joint venture in his application for registration with SEC. During the transitory period as provided in Section 15 hereof, SEC shall disallow registration of the applying non-Philippine national if the existing joint venture enterprise, particularly the Filipino partners therein, can reasonably prove they are capable to make the investment needed for the domestic market activities to be undertaken by the competing applicant. Upon effectivity of this Act, SEC shall effect registration of any enterprise applying under this Act within fifteen (15) days upon submission of completed requirements. (Sec. 5)

D. FOREIGN INVESTMENTS IN EXPORT ENTERPRISE Foreign investment in export enterprises whose products and services do not fall within Lists A and B of the Foreign Investment Negative List provided under Section 8 hereof is allowed up to one hundred percent (100%) ownership. Export enterprises which are non-Philippine nationals shall register with BOI and submit the reports that may be required to ensure continuing compliance of the export enterprise with its export requirement. BOI shall advise SEC or BTRCP, as the case may be, of any export enterprise that fails to meet the export ratio requirement. The SEC or

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BTRCP shall thereupon order the noncomplying export enterprise to reduce its sales to the domestic market to not more than forty percent (40%) of its total production; failure to comply with such SEC or BTRCP order, without justifiable reason, shall subject the enterprise to cancellation of SEC or BTRCP registration, and/or the penalties provided in Section 14 hereof. (Sec. 6)

E. FOREIGN INVESTMENT DOMESTIC MARKET ENTERPRISE

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Non-Philippine nationals may own up to one hundred percent (100%) of domestic market enterprises unless foreign ownership therein is prohibited or limited by the Constitution existing law or the Foreign Investment Negative List under Section 8 hereof. (Sec. 7)

F. FOREIGN INVESTMENT NEGATIVE LIST The Foreign Investment Negative List shall have two (2) components lists; A, and B. (1) List A shall enumerate the areas of activities reserved to Philippine nationals by mandate of the Constitution and specific laws. (2) List B shall contain the areas of activities and enterprises regulated pursuant to law: a. which are defense-related activities, requiring prior clearance and authorization from Department of National Defense (DND) to engage in such activity, such as the manufacture, repair, storage and/or distribution of firearms, ammunition, lethal weapons, military ordinance, explosives, pyrotechnics and similar materials; unless such manufacturing or repair activity is specifically authorized, with a substantial export component, to a non-Philippine national by the Secretary of National Defense; or b. which have implications on public health and morals, such as the manufacture and distribution of dangerous drugs; all forms of gambling; nightclubs, bars,

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beerhouses, dance halls; sauna and steam bathhouses and massage clinics. “Small and medium-sized domestic market enterprises, with paid-in equity capital less than the equivalent two hundred thousand US dollars (US$200,000) are reserved to Philippine nationals, Provided that if: (1) they involve advanced technology as determined by the Department of Science and Technology or (2) they employ at least fifty (50) direct employees, then a minimum paidin capital of one hundred thousand US dollars (US$100,000.00) shall be allowed to non-Philippine nationals. Amendments to List B may be made upon recommendation of the Secretary of National Defense, or the Secretary of Health, or the Secretary of Education, Culture and Sports, endorsed by the NEDA, approved by the President, and promulgated by a Presidential Proclamation. “Transitory Foreign Investment Negative List” established in Sec. 15 hereof shall be replaced at the end of the transitory period by the first Regular Negative List to be formulated and recommended by NEDA, following the process and criteria provided in Sections 8 of this Act. The first Regular Negative List shall be published not later than sixty (60) days before the end of the transitory period provided in said section, and shall become immediately effective at the end of the transitory period. Subsequent Foreign Investment Negative Lists shall become effective fifteen (15) days after publication in a newspaper of general circulation in the Philippines: Provided, however, That each Foreign Investment Negative List shall be prospective in operation and shall in no way affect foreign investment existing on the date of its publication. “Amendments to List B after promulgation and publication of the first Regular Foreign Investment Negative List at the end of the transitory period shall not be made more often than once every two (2) years”. (Sec. 8)

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