Commercial Law Review (Abella)

Commercial Law Review Dean Eduardo Abella MORTGAGE Introduction - Under the NCC (Book V), there are accessory contracts securing principal obligations (special contracts). These include pledge, mortgage, antichresis, guaranty, and suretyship. Definition - a mortgage is a contract where the property is recorded (in the register of deeds of the city and/or province) to secure a principal obligation - example: If a mortgaged property is in Batangas City, it must be registered in both the City and Province of Batangas (Batangas City is the provincial capital).

Registration Return of Excess Claim for Deficiency

RD of mortgagor’s residence + location of property + LTO (motor vehicles) Not required - No recovery under the Recto Law (NCC 1484 on installment sale of personal property where the mortgage is constituted over the object of sale to secure the payment of the purchase price). For Recto Law to be applied, mortgage must be constituted over the object of the installment sale.

Required

- an accessory contract, collateral or security for an obligation They are valid only if there is a principal contract. Basic Principles 1.) Accessory Contract – only exists if there is a principal contract 2.) Mortgagor is the owner of thing mortgaged

3.) Mortgage is extinguished if the principal obligation is extinguished Scope: It may be constituted over: (1) Personal Property (Chattel Mortgage) (2) Real Property (Real Estate Mortgage) Object Scope Foreclosure EJ Foreclosure

CM REM Personal property Real property Existing and valid obligations; Includes future obligations Includes voidable, unenforceable, rescissible and natural obligations Extrajudicial only EJ or Judicial No right of redemption Right of Redemption

- Recovery if not under the Recto Law FROM: Principal Debtor E: Obligation is solidary with the Mortgagor

CHATTEL MORTGAGE Governing Law: Act No. 1508

Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

In Jurisprudence: In one case there was a house that was subject to a chattel mortgage. The reason was that the land belonged to one person and the house to another. The Court ruled that as between the parties there is a valid chattel mortgage as under NCC 1159, stipulations of parties valid between themselves. However, it is not binding on other persons. Collateral issue: The register of deeds was not justified in refusing to record chattel mortgage over the house; it is a ministerial duty on the part of the register Q: May personal property also be classified as real? A: Yes, but it is binding only as between the parties While registration may be notice to world, it is still not in accordance with law. Definition - Chattel Mortgage is defined in the NCC as a contract whereby personal property is recorded in the chattel mortgage registry as security for the performance of an obligation.

CHATTEL MORTGAGE LAW ACT NO. 1508 This act is considered repealed by the New Civil Code. The ratio is that pactum commissorium is void and the Chattel Mortgage Law considers a Chattel Mortgage as a conditional sale which becomes absolute upon default A: Yes, general ObliCon rule. Affidavit of good faith is for purposes of registration. If there is no affidavit, it is not binding on third persons. Affidavit of good faith may be demanded. Q: What if mortgagor and property are in different locations? A: Register first in the city or province where the mortgagor resides then where the property is found. If object is motor vehicle it should be registered with the LTO. It should be first registered with register of deeds. After, which, register with the LTO. Practical: Bring two copies, first to Register of Deeds then have him stamp the copy. Bring the second copy to the LTO. Mortgagor may or may not be the principal debtor.

Where to Register: Residence of the mortgagor CM is to be recorded in the Register of Deeds of the City or Province where the mortgagor resides. Note: There is no Register of Deeds in Municipalities. Why: Because it can be easily moved Nature of Requirement: Not for the validity of the mortgage But for Constructive Notice to the world TRIVIA: Forms of Construction Notice: Public Instrument, Publication, Registration Form of Registration: Affidavit of Good Faith - It is a sworn declaration of both the mortgagor and mortgagee that they executed the mortgage in good faith to secure a valid obligation and not for the purpose of fraud - IF LACKING: a) the mortgage is still valid between the parties b) it is invalid as to third persons because the mortgage cannot be registered without the affidavit

A problem arises when the principal debtor defaults. REMEDIES OF THE CREDITOR: 1.) Sue for specific performance if the obligation is for a sum of money – mortgagee abandons mortgage by suing the principal debtor. If suit is brought, mortgagor may demand release of mortgage. 2.) Foreclose the mortgage under the Chattel Mortgage Law - ABSOLUTE REQT: CREDITOR’S POSSESSION of the thing mortgaged because it must be sold in a public auction - How does the creditor acquire possession: Demand for the delivery of the object after default. If concealed, sue for replevin. - Who attends to the foreclosure sale: Sheriff or Notary public - What is the process of foreclosure: a. Petition for EJ Foreclosure with the sheriff or notary public

Q: If an affidavit of good faith is omitted is there a valid chattel mortgage?

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

b.

Notice of Auction Sale by the Sheriff/NP after the receipt of the petition - Posted in at least 3 public places, e.g. City/Municipal Hall, Barangay Hall, Hall of Justice - there is no law that requires the sheriff or np to make sure that the notices stay where posted Q: If somebody took the posted notice, will proceeding be invalidated? A: No, it will not, posting is enough. - Copy furnished to the mortgagor at least 10 days before the auction sale, otherwise the sale would be void

- INSUFFICIENT: Banks use printed deeds of REM with the following provision: “In case of default, the Bank can extrajudicially foreclose pursuant to Act No. 3135.” According to a SC Circular, mere reference to Act No. 3135 is not enough. - Thus now, in case of default, the bank must be expressly authorized to sell the property mortgaged. - Note: Just copy the wording/form of the law 2.

c. Sale to the Highest Bidder - If sold to the mortgagee, he has no obligation to deliver any amount - If sold to a third party, the latter delivers the amount of the bid to S/NP d. Certificate of Sale - Whoever is the highest bidder gets certificate of sale from sheriff or notary. Hypothetical Q: Mortgagor did not see necessity of recording release of mortgage. Went to get a second loan from mortgagee. He merely returned the release of mortgage, is the mortgage revived? A: No, obligation it secured is already extinguished

REAL ESTATE MORTGAGE Governing Law: ACT 3135 It is a special law creating the right of the mortgagee to foreclose the REM extrajudicially How to extrajudicially foreclose a REM 3135 refers to the Rule 39 of the Rules of Court 1. The Mortgagor must expressly authorize the mortgagee to sell the mortgaged property in case of default, either in the deed of mortgage or in a separate instrument - EXAMPLE: In case of default, the bank shall be authorized to sell, as it is hereby authorized to sell.

The mortgagee must execute a verified petition Q: How is it initiated? A: Prepare a verified petition to foreclose the REM. The sheriff or a notary public may handle this. The mortgagee himself may do it, but it is often the sheriff or notary public. - Where filed: Sheriff or Notary public - CAFS is not required - Note: It is ironic that the remedy is supposed to be extra-judicial or out of court and yet sheriff is not allowed to accept the petition unless the court fees required are paid (SC Circular March 2000)

3.

Referral and Payment of Fees

4.

Notice of Auction Sale - By Whom Issued: Sheriff, NP - Where: Where the property is situated - How: a) Notice in at least three public places in City or Province where the property is located b) Publication in a newspaper of general circulation, once a week for two consecutive weeks - NOTE: Publisher must be accredited by the court and assigned the publication by raffle - Should notice be furnished to the mortgagor? No because publication is constructive notice to all (This is opposed to the EJ Foreclosure of Chattel Mortgages where notice to the mortgagor is required) - REQT: CORRECT DESCRIPTION OF PROPERTY, Otherwise the notice would be void - How to Prove: Ask for a Certificate of Notice or Affidavit of Publication and a copy of issue of the newspaper

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

5.

6.

Scrutiny of the Title of the Property - If the property is wrongly described in the publication, then the entire proceedings would be void - REMEDY: Inform the publisher and correct the issue

- When is tender valid: If there is tender of the full amount of in legal tender - What is the redemption price: a) If there is a special law that created the mortgage and there is an indication of redemption price, then follow that. b) If it is a bank, it depends on the law. c) If another person: 1.) Bid price 2.) 1% interest per month on the bid price 3.) Taxes and charges paid by the highest bidder 4.) 1% interest per month on the taxes and charges paid

Auction Sale - Q: If there is a written agreement between the mortgagor and mortgagee to postpone the auction sale, is it valid? YES, because it is not contrary to law, morals, good customs, public order or policy. However, in case of postponement, the notice requirements should be complied with again as in the case of Nepomuceno Productions vs. PNB. - Three possible results of an auction sale a. Bid exceeds the amount of the obligation: the excess is returned to the mortgagor b. Bid is less than the amount of the obligation: the deficiency is recoverable c. Mortgagor himself is the highest bidder: There is no need for the amount of the bid to be delivered to the sheriff or no.

The Supreme Court construed this as 12% per annum. - To whom must the amount be tendered: Highest bidder or Sheriff/NP conducting the auction, whoever is less intimidating *If tender is refused: the remedy is specific performance. The amount may not be consigned because for consignation to be allowed, there must be a debt due.

NOTE: There is no longer any requirement of having at least 2 bidders. 7.

8.

*NOTE: Present the Certificate of Title from the Register of Deeds with the annotation of the Certificate of Sale.

Certificate of Sale - By whom issued: sheriff or np - What to do: Register ASAP with RD BEC the one-year Right of Redemption commences within one year from the date of registration

- What is the Certificate of Redemption: It cancels the certificate of sale - When is the Redemption Period: GR: 1y from registration of certificate of sale (NOT 12m)

Redemption - Nature: Right, Not a Duty; it may not be forced on the mortgagor - It is a property right arising from property - Real property - Real rights

E: 90d or before the registration of tile over the property, whichever comes first IF the mortgagor is a juridical person and the mortgagee is a bank (General Banking Act)

- Who Exercises Right of Redemption: a. Mortgagor b. His successors-in-interest c. Judgment creditor of mortgagor

- Is the right of redemption waivable? NO. Express waivers within the period of redemption is not allowed because it is contrary to public policy. HOWEVER, waiver may be done by not exercising the right.

- How is it Exercised: there must be a valid tender of the redemption price within the redemption period

- Is it transferable? YES, either onerously or gratuitously. Redemption is a real right over real property. The right may be inherited by succession 9.

Acquisition of Title

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

- When to obtain title to the property: When the period of redemption expired without anyone redeeming the property - How: 2 ways a. Have the Sheriff/NP issue a Final Certificate of Sale b. Execute an Affidavit of Non-Redemption, which is less expensive than the first c. Pay BIR the taxes upon the expiration of the redemption period - Why do it: The BIR requires: (1) certificate authorizing registration and (2) the tax clearance certificate a. DST – within five days from the month following the expiry of the redemption period b. CGT / Withholding Taxes – 30 days from expiration of the redemption period c. VAT d. Transfer Taxes of LGUs - Pay the amount of taxes to the LGU - Update all realty taxes - Obtain a Clearance from the local treasurer - Go to the RD for the issuance of a TCT - What is the tax base: Before, it was the bid price. By reason of a BIR Circular dated July 2012, the tax base is now the highest of: (a) Bid Price or (b) Market Value in the Tax Declaration or (c) BIR Valuation 10. Possession of the Property - How: Ex parte petition for the Issuance of a Writ of Possession - It is in the nature of a motion - Nature: General Rule: Ministerial duty of the court BUT if filed before the end of the redemption period, a bond is required. Exception: Not ministerial if there is another person with a better right. Ex. Lessee - REQD: GF of Applicant! Thus, the applicant must inquire into the (a) TCT and (b) rights of the current possessor to qualify as a buyer in good faith; otherwise, he will have no right of possession.

New buyer in good faith doctrine: Looking at certificate of title is no longer enough; you must look at the right of the person in actual possession of the property. Failure to do so does not qualify one as a buyer in good faith. Case: Person borrowed from bank. Parents executed a Real Estate Mortgage. Borrower issued post-dated checks. The checks were dishonored. The bank sued the borrower for BP22. Remedies for bank are as follows: 1.) Civil Collection 2.) BP22 3.) Foreclosure Filing of BP22 is an abandonment of the mortgage. If buyer of mortgaged land already owns the land and the prior owner does not want to leave, file an ex parte Petition for Issuance of Writ of Possession. Practical Matters: Attach all certified true copies of documents in the petition – title, deed of mortgage, final certificate of sale, BIR clearance (tax clearance, certificate authorizing registration) Practical Matters: When Register of Deeds issues Certificate of Title, he issues at least 2, the original and the owner’s copy. There are at least 2 because co-owners may each want a copy of the certificate of title. In which case, the co-owners duplicate should be prepared with the original. If you are buying from co-owners, you must get all other copies so that they may be annotated. Remedy or the issuance of the writ of possession is the same in extrajudicial foreclosure, judicial foreclosure and execution sale. There is no remedy if a third party has a better right. Q: Can PDCs be used as chattel mortgaged property? A: Legally, yes.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

DOCUMENT OF TITLE Governing Laws: NCC (Sales) Code of Commerce Warehouse Receipts Act Definition It is an instrument or document where the bailee acknowledges goods and contains an undertaking to deliver the goods - DIFF with Instrument under the Negotiable Instruments Law 1) Coverage: NCC covers GOODS to be transported or safely kept. NIL covers sums certain in money, except other properties that may also be covered. 2) Modes of Endorsement - In DTs, endorsements must be IN BLACK or ESPECIALLY - In NIs, it may be blank, especially, conditional, qualified, or restrictive Examples of Documents of Title - Bill of Lading, issued by common carriers (Code of Commerce) - Warehouse Receipt, issue by warehousemen (under the Warehouse Receipts Act and the General Bonded Warehouse Act). - Quedan, a warehouse receipt that covers rice, sugar, or tobacco Who issues DTs:  Common carriers  Warehousemen Forms of DTs – to facilitate trade 1. Negotiable IF it contains words of negotiability, i.e. to order, to bearer, or those with equivalent words or phrases (e.g. holder, possessor) 2. Non-Negotiable What if it contains “deliver to bearer” with a red stamp in big font of “NON-NEGOTIABLE”: It is negotiable even if the bailee intends it to be non-negotiable, as long as it contains words of negotiability. How to Negotiate Documents of Title 1. To Order Instruments: Indorsement (Blank or Special) and Delivery 2. To Bearer: Delivery

If Originally To Bearer, then specially endorsed and delivered, the transferee must also negotiate by endorsment and delivery. NOTE: Once it has been especially endorsed, negotiate by endorsement and delivery all the time thereafter EXCEPT IF the last endorsement is in blank, then just deliver it subsequently DIFFERENCE WITH NI: Endorsement in a bearer NI has no effect.

BILL OF LADING Governing Law: Code of Commerce Kinds:  Bill of Lading – Common carrier of goods by water  Waybill – by trucks on land  Airwaybill – by aircrafts, airlines Formal Requirements 1. It must be printed 2. It must contain the complete name and address of the printer 3. It must contain the telephone number of the printer. 4. It must contain the TIN Number of the printer. Content of B/L (Code of Commerce) 1.) Complete name and address of consignor/shipper.

2.) Complete name and address of consignee. 3.) Complete name and address of the carrier/shipee (NCC). 4.) Complete description of goods including marks and markings,

e.g. Numbers on crates, Names in pomelo crate from Davao 5.) Amount of fare 6.) Stipulations on limited liability - Nature: Contract of Adhesion but it is not prohibited; it is only interpreted against the party who cause the ambiguity Q: Are printed stipulations on Bill of Lading binding on the shipper even if the shipper does not sign? A: GR: Yes, a contract is perfected by mere consent. Here, consent is implied even if it is signed only by the carrier’s representative. EXCEPTION: There is no consent if print is too small that the shipper could not have read it as in the Shewaram Case.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Effect of Issuance of a B/L: Disputable presumption that the carrier received the goods. It is not conclusive. Purposes of Documents of Title and Bills of Lading 1.) As a Receipt

2.) As a Written Contract between parties 3.) As a Symbol, standing for the goods mentioned therein (Symbol)

WAREHOUSE RECEIPT Governing Law: GENERAL BONDED WAREHOUSE ACT governs the conduct and business of warehousing Who issues WR: Warehouseman. Requirements for Issuance 1. Annual license from DTI Director.

2. 3.

Bond must be posted before the issuance of a license, to answer for damages to goods suffered while the goods are in storage. The bond is coterminous with the license. Insurance against fire over all the goods stored in the warehouse.

Is there a prescribed minimum area for warehouses? NONE. What is its difference with a Customs-Bonded Warehouse: WH is licensed and bonded, while a customs-bonded WH is a facility by importers of raw materials. What if a warehouseman issues more copies of WH receipts: He must indicate that it is only a copy and not the original. Otherwise, he is liable to a TP who receive it in GF and for value If a warehouseman issues more than one copy of a warehouse receipt, he should indicate on copies that they are merely copies and not the original. If he fails to indicate it as a copy and a person in good faith received the receipt for value, he would be entitled to the goods as if his warehouse receipt were original.

Effect of Negotiation: Transferee acquires the direct right to receive goods from the warehouseman. However, the right is conditioned upon the following: 1.) Person claiming the goods must first satisfy the liens of the warehouseman. 2.) He must surrender the original to the warehouseman. 3.) He must express his willingness to sign the receipt upon delivery of the goods to him. Liens of the Warehouseman Nature: Possessory and Waivable by parting with the goods 1.) Storage fees 2.) Other arrangements with the depositor, e.g. premium and interest for additional insurance coverage 3.) Cost of packaging and repackaging (though the latter is illegal) Q: What should warehouseman do with the original receipt? A: Cancel it. If he fails to cancel it and the receipt falls into the hands of someone in good faith and who got it for value, warehouseman is liable to the person. Q: May goods covered by a document of title be levied upon on attachment for execution? A: Yes. Effect of Loss of Original Receipt - The claimant must file an action in court to prove his ownership or right over the goods. In practice, the claimant merely posts a bond with the warehouseman. - It would be the claimant’s problem because he cannot oblige the warehouseman to deliver the goods without the original receipt - To protect the warehouseman, the claimant must post a bond for the value of the goods.

Negotiability of WH Receipts A warehouse receipt is negotiable or non-negotiable.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

TRUTH IN LENDING ACT Purpose of the law: To enable persons borrowing money or buying goods on installment or credit to know the actual cost in money of the credit. History: When cost of money had gone beyond a profitable rate and the interest was also subject to the usury law, banks thought of other ways to make money. Banks started charging different fees to avoid the usury law. In effect, every move by the bank had a price (Processing fee, application fee, appraisal fee). Thus, the law obliges lenders to fully disclose all charges before the consummation of the transaction. How: Disclosure Statement. Prior to consummation, person lending money or selling on credit/installment should deliver to the debtor a written statement showing the breakdown of the charges. Note that this is already after a meeting of the minds. (Section 4) Content of Disclosure Statement 1.) Cash Price less down payment = amount to be financed 2.) Payable in XX installments 3.) Total amount to be paid in installments 4.) Total Cost 5.) Other charges Regulating Body: Monetary Board of the BSP is the body that oversees the implementation of the law. Violation of the Act is a crime; penalty is fine of P100 to P2000 and imprisonment of at least 1 month but not more than 5 years. Case: Solidbank extended a credit line of P200k to a client, not just as an ordinary loan but also as a standby source of funds which earns no interest unless it is drawn. When the borrower draws money, the credit diminishes and he pays only what is actually received. But, there were accumulated service fees which were not made available to the borrower. Credit Line – when bank sets aside a certain amount for client that client may draw on at any time. SC did not allow Solidbank to collect amount because the additional charges were not indicated in the promissory notes. In 2009, there was another case where the fees were included in the promissory notes but there was no delivery of disclosure statements, collection still not allowed.

BULK SALES LAW Purpose of the law: To protect creditors from fraudulent schemes of their debtors Acts covered and regulated: 1. Sale, assignment, mortgage, or other forms of transfer of all or substantially all of the stocks of goods, wares or merchandise other than in the ordinary course of business 2. Sale, assignment, mortgage, or other forms of transfer of all or substantially all of the businesses of a person, the business/es themselves 3. Sale, assignment, mortgage, or other forms of transfer of all or substantially all of fixtures and equipment used in the conduct of business WHY All or Substantially All: These are extraordinary transfers Note: Not every sale is covered. Sales in the ordinary course of business is not covered, e.g. If all goods were sold while engaged in the wholesale business. Requirements: Must be strictly complied with; OTHERWISE, Void sale 1. Notify the creditors in writing of the intended transfer at least 10 days before the intended transaction 2. Deliver to the prospective transferees, a sworn statement stating the full names and addresses of creditors and the amounts due them. 3. Furnish a copy to the Director of the Bureau of Commerce/Bureau of Domestic Trade a copy of the sworn statement Note: Transfer without compliance with requirements is void even if the buyer acted in GF; the buyer is considered a trustee. Exemptions from Requirements: 1. Judicial sales (execution, assignee in insolvency) 2. Sales or transfers of property exempt from execution 3. Sale by manufacturer of his own products 4. Written waiver by the creditors SC: Sale of a foundry shop (Horseshoe maker/metal fabricator)

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

SECRECY OF BANK DEPOSITS (R.A. No. 1405) Purpose of the law: To encourage people to deposit their money in banks for the purpose of promoting the national economy.

GENERAL BANKING ACT OF 2000 Definition: BANK - It is a corporation authorized by the Monetary Board to accept deposits from the public and to grant loans.

Scope: Includes investments in government securities Reserve Requirements What: Percentage of deposit received by the bank is to be deposited with the BSP How much: Percentage depends on the deposit liabilities 1. Highest – Checking 2. Medium- Savings 3. Low – Time Deposit Q: How does BSP use reserve requirements to manage money supply? Why is there a need to manage money supply? A: If there were a lot of money in circulation, prices would go up. The reserve requirement is also there in order for the BSP to have money to lend to banks. REDISCOUNTING FACILITY - Promissory notes are used as security Note: It is illegal for a bank officer or employee to disclose any information regarding bank deposits and government securities. Exceptions: 1. Written authority from depositor himself – Self explanatory 2. In case of impeachment – ex. Clarissa Ocampo 3. Court order in case of bribery, dereliction of duty of public officer, violation of Anti-graft and Corrupt Practices Act, extending to the spouses and relatives, close friends and associates in cases of AGCPA 4. Where deposit is the subject matter of litigation – Must be read literally, e.g. settlement of estate; wife channels funds out of a corporation 5. By Order of the CA in relation to the Anti-Money Laundering Act 6. Examination of books of banks by the BSP 7. Independent auditors they are not bank employees/officers

Kinds of Banks 1. Universal Banks 2. Commercial Banks 3. Thrift Banks a. Savings and Mortgage Bank – retail banks catering small deposits; accepts deposits of small depositors for homebuilding purposes (Amount is smaller than those of the universal bank’s, e.g. P500 in BPI Family Bank) b. Private Development Bank – accepts deposits and grants loans; once the bank runs out of capital, it can invite the DBP to invest in it and DBP would require membership in its BOD; “Development” is in its corporate name c. Stock Savings and Loan Associations – it can be non-stock, where it cannot accept deposits from the public but only from the restricted groups of persons. 4. Cooperative Bank 5. Rural Bank 6. Islamic Bank

Commercial Bank Definition: It is not defined in law. The law only identifies its powers and functions: 1) To accept deposits subject to withdrawal by check. However, the BSP may license other banks to accept similar deposits 2) To open letters of credit. MB licensed savings bank to do the same, e.g Ph Business Bank 3) To engage in allied enterprises 4) To exercise the powers of a corporation

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

As a matter of right, only commercial banks should accept deposits in checking accounts/current accounts/commercial accounts/demand deposit 1.) May issue letters of credit 2.) Lend money 3.) Trading of government securities 4.) Foreign transactions 5.) Safety deposit box Ownership of Other Banks KB can own 100% of just one other KB. There is no limit on the number of smaller banks it can own. Why: To encourage merger or consolidation.

only if 20 or more persons) Get SEC approval first, then have them sold by securities underwriters Example: House of Investment, Inc. and State Investment House, Inc. Ownership of Other Banks UB can own 100% of just one other UB or KB. There is no limit on the number of smaller banks it can own. Q: if Universal Bank invests allied or non-allied, what is the limit? A: Equivalent to 50% of net worth but only up to 25% in a single enterprise

Commercial bank limit is 35% of equity, but still with a maximum of 25% per industry.

Thrift Bank Kinds:

1.

Universal Bank Nature: Actually a commercial bank, but also authorized by Monetary Board to engage in the business of an investment house. Functions and Powers: 1) To accept deposits subject to withdrawal by check. 2) To open letters of credit. 3) To engage in business of investment house

4) 5)

To engage in allied or non-allied enterprises. Non-allied enterprises have nothing to do with banking. To sell life or non-life insurance policies – cross-selling with insurance companies where bank owns 5% of outstanding shares

Definition of an Investment House Q: What is an investment house? A: It is a quasi-bank with two major functions: 1.) Rediscounting of receivables – one entity goes to an Investment House and as collateral pledges its receivables. (Ex. Business sells on credit and needs capital again, so it borrows from an Investment House) 2.) Underwriting for securities where a corporation offers to the market securities for sale with certain commitments (ex. In corporation that needs more capital that can’t be raised from stockholders – securities

2.

3.

Savings and mortgage - To lend money to those that want to construct houses. For small depositors (small amounts of money). Banks prefer big depositors as maintenance costs are the same Private development bank – organized for development of community. If it needs additional capital, it may invite DBP to invest with it. To recognize it, check corporate name, it always has development in its name. Stock savings and loan associations – There’s also a non-stock but not bank. If non-stock no ACS. If stock, may accept deposits from general public, if non-stock only from limited clientele (ex. AFPLSAI restricted only to AFP, PNP and family members; MESALA, Meralco employees including the Lopez group) Many corporations have savings and loan associations and a credit union.

Cooperative Bank What: It is one set up and owned by cooperatives. There are no individual stockholders, all are cooperatives. Under cooperative office, but bank under the BSP.

Rural Bank What: It is organized to provide banking services in rural communities, to farmers/tenants or simply stated, in rural areas. It is recognizable by “Rural” in its corporate name.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Under the law, only corporations under supervision of the Monetary Board may use “Bank” or “Banking” in corporate name.

Islamic Banks Note: There is only one, owned by the government of the DBP as a controlling SH. Why: There are no interests earned on deposits because it is considered immoral, but there may be profit sharing.

LENDING MONEY Is the bank allowed to lend any amount? No. The amount of money lent must be secured by titled real properties and it must be subject to the Single Borrower’s Limit, the maximum amount which any borrower may borrow. DOSRI may borrow from banks on the condition that it is approved by the BOD in a meeting of the BOD with quorum, without counting the officer involved in the quorum and approval votes, unless the loan is part of a package, e.g. fringe benefits. What is the amount of the SBL: 20% of net worth of the bank but may be increased by 10% of its net worth provided that the additional liabilities of any borrower are adequately secured by trust receipts, shipping documents, warehouse receipts or other similar documents transferring or securing title covering readily marketable, non-perishable goods which must be fully covered by insurance. Do the SBL and DOSRI include legitimate interests only? No, it includes illegitimate interests. What is the remedy for SBL: Syndicated Loans where loans from several banks are obtained. If secured by real property: Loans may be secured by Real Property; however, according to Section 37, the maximum amount that may be lent is 75% of the appraised value of the land. If it has improvements, the value lent is not to exceed 60% of the appraised value of improvements. Improvements must be insured.

Banks are prohibited from directly engaging in the business of insurance as an insurer BUT UB can sell insurance policies of insurance companies which it may own. All banks should be organized as a stock corporation and comply with the requirements of the Monetary Board for licensing. Before a corporation can be organized, it must go through bank. After requirements submitted to the Monetary Board and completed, endorsement by Monetary Board to SEC, which then has a ministerial duty to register it. There is paid-up capital required by the Monetary Board. There is a period increase in paid-up capital in order for banks to be more stable. For banks to open branches and ATMs, it must first obtain a permit from the MB. Banks should have employees on permanent basis. Q: How many directors may a bank have? A: 5-15, odd or even, no law obliges the BOD number to be odd. If consolidated, it may have a maximum of 21. There must be two independent directors who are neither officers nor employees of the bank. Directors and officers – not just anybody may be a director or officer. There is the fit and proper rule. Fit and proper rule – Monetary Board came out with qualifications. Must be a college grad. Quorum in meetings – GBA allows meeting via tele- or video-conferencing Bank should not acquire treasury shares of its own Treasury Shares – shares already issued by a corporation but which shares a corporation reacquires in its own name. Subscribed and Issued Shares – no difference between them in terms of rights

REGULATION OF BANKS

If a bank acquires treasury shares, they should be gotten rid of in 6 months.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Under the General Banking Act, bank should cause to be published at least every quarter their financial statements.

It is lending to another person. Advanced is that in case of bank closure, you make get Promissory Note by borrower.

Clearing House – Bangko Central Lending facility for purpose of collecting checks drawn on one bank but deposited in another.

What is the maximum indemnity: P500k per person per bank in the Philippines, whether in Philippine or foreign currency. If it is a foreign currency deposit unit, indemnity amount in pesos on the day the bank is ordered closed.

Ex. BPI Katipunan depositor deposited checks from other banks such as Metrobank and Allied Bank. Clearing house is where banks swap checks they received drawn on other banks. Physically there is no cash involved, but transactions recorded. Under present rules, if within 24 hours a bank dishonors check, check should be returned or else considered cleared. Bank cannot declare dividends if clearing house account are overdrawn. There is only movement of cash if clearing house account is overdrawn.

PHILIPPINE DEPOSIT INSURANCE CODE History In the 1960s to the 70s, there were so many bank closures leading to the loss of the public’s confidence. To restore faith in banking that is vital to the economy, the Uniform Currency Act was repealed and the PDIC was created. What is insured: Savings, current, time deposits (credit-debtor relationship). The PDIC insures only deposits in savings, current or time accounts, not any other investments even if made with or through a bank. It excludes money market transactions, and marginal deposits (amount required to open a L/C). Q: Why are money market placements not insured in PDIC? A: They are not deposits but investments. There is no debtor-creditor relationship. Money Market Placements – transactions through bank but bank is not borrower. Borrowers are other corporations that need to borrow for a short time. Reason for Money Market Placements is that normal loans take time. Bank is an intermediary between the borrower and lender in the Money Market Placement.

Joint Accounts: It is insured separately and independently. Before, when a bank is ordered closed, all deposits of a person in different accounts in different banks will be collated. In the present law, joint accounts are insured separately. So, it is P500k per sole account per bank, and a total of P500k for all joint accounts combined per bank. Definition: A joint account is an account in the name of 2 or more persons. It is indicated by the words “and/or” (survivorship account, each can withdraw on his own) and “and” (all depositors required to sign withdrawal slip). Kinds of Joint Accounts: a. & - all depositors must sign the withdrawal slip b. &/or or survivorship accounts – withdrawal may be made through the signature of one or all Under the law, deposits in joint account are presumed co-owned in equal parts unless the contrary is proved. Example 1: Sir Sir + Wife Joint Account Sir + GF Joint Account Amount Recoverable by Sir Example 2: Sir Sir + Wife Joint Account Sir + GF1 Joint Account Sir + GF2 Joint Account

490k 500k 500k 990k

490k 500k 500k 500k

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Amount Recoverable by Sir

990k

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

New Central Bank Act Purpose of law: Because of the bankruptcy of the Central Bank, the Bangko Sentral was created, having a corporate existence and is controlled by a board, the Monetary Board. Composition of MB 1. BSP Governor. The BSP Governor has a term of 6 years, except when it is to fill a vacancy for an unexpired term. He may be reappointed once for a total term of 12 years. 2. Cabinet Member – depends on the President who to send, currently it is DTI Secretary 3. 5 Fulltime members from the private sector –so that the BSP will not become a dumping ground of political lame ducks. Private sector representatives need not necessarily be from privately owned private corporations. They may come from GOCCs such as the DBP, SSS, GSIS but the appointment is staggered for a 6-year term. They may be re-appointed once for a total term of 12 years. Prohibition to Join Private Banks - Within the period of 2 years from separation from the Monetary Board, neither the governor nor the full time directors may serve in any capacity in corporations under the supervision of the Monetary Board (banks, quasi-banks and investment houses), except if he would be representing the interest of the Philippine Government. Business: The Monetary Board is obliged to meet every other week because it has to closely monitor the prices and take action. In every meeting, there should be a quorum of at least 4. To pass a resolution, at least 4 members should concur. If the Governor cannot attend, he should send a Deputy Governor. If the Secretary can’t attend, he should send an Undersecretary. Functions of the BSP 1.) Supervision of the banking system 2.) Manages currency and money supply 3.) Gold purchasing Q; What is MONEY? A: Any medium of exchange, anything could be money Money vs. Currency Currency is defined by law as notes and coins issued by the BSP and are in circulation.

Currency has 2 qualifications: 1.) Issued by the BSP 2.) In circulation, meaning out of the BSP vaults TRIVIA BSP prints the notes and mints the coins. Production is local but materials are imported. Notes are not paper; they are cloth. The cost of materials is very high. The currency is called Peso. Its symbol is the capital letter P. There are 2 other countries that use Peso; they are Argentina and Mexico. Part of Peso is called a Centavo. The sign for a Centavo is the small letter c. A note contains 2 sets of serial numbers; they are located at the upper left and lower right. They also have 2 signatures on them, one belongs to the Philippine President, and the other belongs to the BSP Governor. The life of a note is estimated to be 5 years, but in Metro Manila, it is merely 1 year. If the estimated life is over, it is withdrawn and demonetized, i.e. it loses the character of money. Q: May a damaged note be replaced or accepted for deposit? A: Yes, it may, but it must fulfill the following requirements: 1. If damaged, there must be at least 3/5 of the note present. 2. It must have at least one set of complete serial numbers 3. It must have at least one signature present 4. There must be no intentional defacement (It’s a crime). BSP issued a circular for banks not to accept for deposit or replacement notes showing intentional defacement. Coins have a much longer existence. Damaged coins may also be replaced if there is no sign of filing, clipping or perforation; the reason for this is that the metal content would be diminished. Ideally, the amount stated is the total cost of making coins; however, Philippine coins are worth more than their stated value. In case of possession of damages coins, the possessor is presumed to have caused the damage. The year in front of the coin is the year it was minted. Q: What is LEGAL TENDER? A: Legal tender is currency in such quantity prescribed by law to be accepted in payment of obligations.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

All Philippine notes are legal tender for all obligations. However, coins are legal tender only up to a certain amount. A Monetary Board Circular changed the amount of what may be legal tender for coins. All centavo coins are legal tender up to P100 while all one peso coins are legal tender up to P1000. Contrast this with the law that states that for coins worth 10 centavos or less, they are legal tender only up to P20, while coins worth 25 centavos and up are legal tender only up to P50.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

LETTER OF CREDIT Governing law: Code of Commerce, which deals with merchants. Definition: L/C - It is a letter addressed by a merchant to another merchant to enable the person names in the letter to attend to a commercial transaction. - A form of bank facility or accommodation to enable persons to have a commercial transaction where the buyer is assured of the delivery of the goods he is buying and the seller is assured of payment. What is a COMMERCIAL TRANSACTION It is buy and sell. Who is a MERCHANT He is a person, natural or juridical, having the capacity to engage in commerce and regularly engages in it “Regularly engages” means habitual, not necessarily a big volume of transaction If a natural person: 1.) At least 18 years of age 2.) With the capacity to enter into contracts of sale If a juridical person – partnerships and stock corporations 1.) Organized according to law 2.) SEC Certificate of Registration (corporations) Persons Involved 1. The sender or maker, who is a merchant

2. 3.

The addressee who is also a merchant, and The beneficiary or person name in the letter who may or may not be a merchant.

Requirements for a Letter of Credit 1.) The person to whom credit is extended is stated. It must not be a bearer instrument. 2.) The amount or maximum amount of credit to be extended to that person shall be stated. It must not be an open L/C. Addressee must not have the discretion as to how much is to be given under the L/C.

If the requirements are not met, it is called a Letter of Recommendation. A letter of credit cannot be in negotiable form. Q: Why is there a need to specificy the beneficiary? Why not just bearer or order? A: Because of obligations to each other. Kinds:

1.) Domestic – all parties in the same country; good for 6 months 2.) Foreign – different countries; good for 12 months Who issues L/Cs: Commercial banks as a general rule are allowed to issue letters of credit, but Monetary Board may allow other banks to issue Letters of Credit. How do L/Cs work 1. Buyer and seller are insecure 2. Buyer goes to the full service branch of a bank to open a L/C in favor of the seller 3. Bank requires a marginal deposit, the amount required by banks of the purpose of opening L/C 4. Bank remits the amount to the seller only after the seller presents proof of delivery Example BPI QC requests BPI Cebu to open a L/C in favor of a seller in Cebu. BPI Cebu communicates to the Cebuano seller to ship the goods and upon proof of such delivery, BPI Cebu will pay him. Shipper thus ships the goods and the shipping company issues a bill of lading. If the goods are delivered to the common carrier and it issues a B/L, it is considered as delivery to the buyer. BPI Cebu gets the B/L from the seller, pays the seller, forwards the B/L to BPI Manila. Buyer pays BPI Manila, claims the B/L, and receives the goods under the B/L from the carrier. What is the benefit of L/Cs to banks Service fees and interest on advance. Example: Purchase price is P200k. The marginal deposit required is P120k, from which the bank advances P80k to the seller. Interest on the P80k advanced by the bank is payable by the buyer to the bank. What is a Letter of Credit – Trust Receipt Line

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

A trust receipt is a receipt with undertakings. In lieu of a 100% marginal deposit, the buyer has the option to execute a Trust Receipt in addition to the marginal deposit. Under the Trust Receipt, the bank releases the B/L to enable the buyer to acquire the goods which he would sell and either (a) use the proceeds thereof in paying the bank within a stipulated period, and/or (b) return the goods unsold. What are TRUST RECEIPTS - A trust receipt is a receipt with undertakings. - In a trust receipt transaction, the entruster, who has security interests over the goods, entrusts those goods to the entrustee so that the entrustee may sell those goods and remit the proceeds of the sale within the stipulated period. If the amount owing to the entruster has not been met within the period, the entrustee is to return the goods not sold. - Trust receipts are issued to guarantee debts due to failure to pay the amount bank advanced in the Letter of Credit. Undertakings of the Entrustee 1. To sell the goods and from the proceeds of the sale, remit the amount owing to the entruster within the period stipulated. The proceeds mentioned include the profits as long as there is still an amount owing to the entrustee. 2. If the amount owed cannot be remitted, to return the goods within the period.

claimed the goods. The P.D. regulating trust receipts was made to protect the banking system. The PD requires the entrustee to insure the goods against all risks. Consequences of the Entrustee’s Failure: - Before, there are two views 1. Violation of a TR is a criminal act under Art. 315 of the RPC. 2. Violation of a TR only leads to civil liability. - NOW, the TR Law explicitly provides for criminal liability and requires the entrustee to insure the goods against all risks. When a document has the same stipulations as a promissory note along with undertakings present in a trust receipt, then it is still considered a trust receipt. In banks, the transaction is often called an L/C-T/R line because of the interrelation of the 2 transactions. CREDIT INSTALLMENT SALES - It is the use of TR but is not a trust receipt by provision of law because the buyer did not intend to sell the goods sold but to use it.

Parties to a T/R - Entrustee - Entruster, who has security interests over the goods, e.g. holder of a B/L which is a document of title SC: In a TR, the entruster is the theoretical owner of the goods as he advanced the full payment of the goods. Note: Trust receipts may be between individuals Effect of Returning Goods to Entruster - The entrustee has the option of returning all of the goods to the entruster if the due date is near and he has not sold the goods to avoid a prosecution for estafa. In this event, the bank would be the one to sell the goods and deduct the proceeds from the debt of the entrustee. - Returning the goods does not extinguish the obligation to pay the amount advanced by the bank. Why is there a need for the Trust Receipts Law: The bankruptcy of bank became rampant from their failure to collect from borrowing importers who did not remit any amount to the banks after they have

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

COMMON CARRIERS Definition: A common carrier is a person natural or juridical who is regularly engaged in the transportation of goods, passengers or both, offering its services to the public for a fee. Elements 1.) Transporting goods, passengers or both. 2.) Offering service to the public 3.) For a fee The common carrier is at liberty to transport what they want. Q: What is the “public”? A: It is not necessarily the general public; it may merely be a narrow segment of the public, e.g. school bus operator is a common carrier; pipeline is also considered a common carrier, transporting fuel, and its clients are Shell and Caltex. Q: Do you need a motor vehicle? A: No. Importance of Classification: The diligence required of a common carrier is extraordinary diligence. CARRIAGE OF GOODS When to exercise ED: General Rule: Extraordinary diligence is to be exercised when the goods are unconditionally placed at the disposal of the common carrier, until the goods shall have been delivered to the consignee or until consignee has been informed of arrival of the goods and given a reasonable opportunity to claim the goods. Reasonable opportunity is dependent upon the circumstances. Exception: When the shipper exercises the right of stoppage in transitu. Q: In case of stoppage in transit, what is the relationship of the common carrier to the shipper? A: The common carrier is merely a bailee, where the diligence required is only that of a good father of a family.

Exception to the exception: Eordinary Diligence if the shipper asks for delivery back to himself. Q: Is the common carrier an insurer of the goods? A: No, the common carrier is not an insurer against all risks related to transportation. When may the CC avoid liability for loss or damage to goods: 1.) When the proximate and only cause is a storm, earthquake, lightning, or other natural calamity. 2.) When the proximate and only cause is an act of a public enemy in times of war, whether civil or international. 3.) When the proximate and only cause is the character of goods or a defect in the container or packaging. 4.) When the proximate and only cause is the act or omission of the shipper himself. 5.) When the proximate and only cause is the order of a competent public authority. REQD: There must be no unnecessary delay in the prosecution of the voyage. The carrier should not have committed an improper deviation. The diligence required is still extraordinary diligence (BUT, according to NCC 1739, it is only Due Diligence). Q: If not one of these five occurred, might the carrier excuse itself from liability? A: Yes it may, but it is the obligation of the Common Carrier to prove that under the circumstances, it exercised extraordinary diligence. The burden of proof is on the common carrier. Q: If one of these five occurred, is there a chance to recover from the common carrier? A: Yes, but the burden of proof is on the shipper to prove that there is failure to exercise the required standard of care, still extraordinary diligence. Q: May a common carrier and shipper validly stipulate on a standard of care less than extraordinary? A: Yes, but it must conform to the following requirements: 1.) Must be in writing and signed by both parties 2.) It must be supported by consideration other than to transport (ex. Discount) 3.) The stipulated standard of care must not be less than that of a good father of a family. 4.) If there are other stipulations, they must be fair and reasonable.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

There are 2 prestations in a bilateral contract to transport. With respect to the carrier its prestation is the promise of the shipper to pay the fare. With respect of the shipper, it is the promise of the carrier to transport the goods. Standards of Care: 1.) Utmost diligence of a very cautious person (transportation of person)

2.) Extraordinary diligence (transportation of goods) 3.) Good father of a family. Note: There is no name for the standard of care in between extraordinary diligence and that of a good father of family. The shipper also has the obligation to minimize damage to itself. CARRIAGE OF PASSENGERS Q: When should diligence start? A: When the carrier agrees to take in the person as a passenger. Q: May the passenger and the carrier stipulate a lower standard of care? A: No Q: Is a common carrier insurer against all risks? A: No, it is not, BUT in case of mechanical defects or when a common carrier violates a traffic rule, the common carrier is always liable. Employees’ Negligence: The common carrier shall be liable for acts or omission of its employees although said employees may have acted without or in excess of their authority Stranger’s Negligence: For acts or omissions of other passengers or third persons, if the common carrier could have prevent death or injury by merely exercising the diligence of a good father of a family and it failed to do so, the carrier is liable. Q: When may a common carrier be liable for moral damages? A: In the following instances: 1.) Death of passengers –in favor of the heirs 2.) When passenger suffers physical injuries 3.) When the common carrier acts in bad faith A common carrier is liable for moral damages against a waitlisted passenger whose number is called, given a boarding pass, allowed to proceed to the predeparture area but not allowed to board.

CARRIAGE OF GOODS BY SEA ACT Background The COGSA is a law of American origin; it was made part of our laws during the American occupation. In case of conflict between the Code of Commerce and the COGSA, the former prevails due to specific provision in the COGSA. Scope of COGSA It covers the shipment of goods by sea coming from another country into the Philippines. The shipment of goods must be covered by a B/L. It is not applicable to: 1.) Inter-island or coast-wise shipping 2.) Shipment of livestock 3.) Those not covered by BL 4.) Before, COGSA does not apply also to shipment of goods on deck. But NOW, there is no more transportation on deck because goods are transported only via containers. Salient Features • Time of filing claims: o Apparent Loss or Damage: File it right away, immediately with the carrier o Not Apparent: 3 days from delivery Note: Under general law (Civil Code and Code of Commerce), the claim must be filed right away if the damage is apparent; if it is not apparent, it must be filed within 24h from delivery (Code of Commerce). •

Actions of the Carrier on the Claim o Settle it right away o Not to act on it o Reject the claim. What is the remedy of the consignee in case of rejection: If the claim is denied, the claim should be filed in court within 1 year from the delivery of the goods by the common carrier to the arrastre operator. This is because the transfer of the goods from the carrier to the arrastre is documented in a tally sheet after an ocular inspection by the arrastre operator. When the arrastre receives the goods, it

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

inspects the goods and lists the defects in the tally sheet. If there are defects found, they are formalized in the Bad Order Form. Q: Is the filing of a claim with the common carrier a condition precedent to recover from the carrier by complaint in court? A: Under COGSA, no, it is not required. But under the Code of Commerce, it is a condition precedent and thus constitutes the cause of action. Q: When goods are insured and turned over to the arrestre operator and loss or damage is determined, where and when should the claim by the insurer be filed? A: Claim of the consignee must be filed with the insurer also within one year from delivery to the arrestre operator. The insurer merely subrogates and steps into the rights of the insured. Q: If the insurer did not act on the claim of the insured until after 1y, can it involve prescription? A: No. Prescription between the insurer and the insured is as stated in the insurance policy or Insurance Code. Q: What if the goods are not annotated as damaged in the tally sheet or bad order form upon turnover to the arratre, but the goods are damaged upon turnover by the arrastre to the consignee? A: The suit should be against the arrastre on the basis of quasi-delict since there is no pre-existing contractual relation between the arrastre and the consignee. Q: If the goods are insured but no claim is made by the insured against the insurer within 1 year from delivery of goods, is the claim against the insurer barred after one year? A: No. Q: What if there is no damage annotation on the tally sheet, and the customs broker received the goods from the arrastre, but upon delivery by the customs broker to the consigee, there is damage which is not annotated on the delivery receipt? A: Sue the broker on the basis of breach of contract of carriage, because the customs broker is a common carrier. The ruling is that a customs broker who offers to transport goods to client as part of services qualifies as a common carrier. Q: In case of missing goods, or, if the vessel arrives but the goods are not offloaded, when should the claim be filed?

A: Within one year from the last day when the carrier had the last chance to deliver the goods to the arrastre operator, e.g. before the ship sails to another port. Q: If the prescriptive period is about to expire, can the consignee extend it by sending a Demand Letter to the carrier? A: No.

ADMIRALTY Qualifications to be a Vessel: Not every watercraft is a vessel; it has to have the following qualifications: 1.) It must not be a mere accessory to another watercraft (ex. Lifeboats) 2.) It must be registered with the MARINA 3.) It must be used to transport goods, passengers or both 4.) It is seagoing Q: Who may own a vessel? A: Anybody. If a vessel is owned by more than one person, there is a disputable presumption that a partnership exists. Hypothecary Rule The limited liability of a shipowner. It is the value of the vessel, plus earned freightage plus insurance, if any. Q: Who participates in admiralty? A: Those involved in navigation (crew) and housekeeping (compliment) Crew of a Vessel: 1.) Captain The title captain is used to refer to the commanding officer of a ship that goes abroad. The title master is used to refer to the commanding officer of a ship that is engaged in local/inter-island travel. A ship captain has three roles: a. Represent the owner of the vessel b. Be the technical director of the vessel c. Represent the country where the registered.

vessel

is

2.) Mates (1st, 2nd, 3rd etc.) 21

Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

3.) Engineers. Contracts in Admiralty: 1.) Charter party 2.) Bottomry 3.) Respondentia 4.) Marine Insurance Charter Party Definition: A contract of lease over a vessel Kinds:

1.) Bareboat/demise, where the lessor provides only the vessel, without crew, stores (things you eat), provisions (water and fuel). 2.) Affreightment 3.) Time-charter, or a lease for a specific term of the vessel, with stores and provisions 4.) Voyage-charter, or a lease of a vessel for a voyage or series of voyages, with stores and provisions. According to the Supreme Court, the true charter is the bareboat charter. The time and voyage charter are merely subtypes of affreightment, which is a contract of carriage. Ship Agent: Corporation representing the owner in every port where the vessel may make a call or stop. The ship agent is in charge of provisioning the vessel. Q: What will be the liability of a ship agent for procurement of provisions? A: A ship agent is solidarily liable with the ship owner for contracts entered into for provisions of the vessel. This liability is different from that of a mere agent, who is not liable if he discloses his principal and acts within the authority given him. Husbanding Agent: Agent in charge of freightage and settlement of averages Q: What are AVERAGES? A: In admiralty, they refer to damages Types of Averages:

1.) Gross/General

Average, or damages suffered by the vessel or owners of cargo that shall benefit not only the ship-owner but also the owners of the other cargo. 2.) Specific/Particular Average or those that do not benefit anyone. Procedure for General Average: 1.) Captain calls a meeting with the representatives of the owners of cargo. 2.) They make a decision to throw away certain cargo.

3.) If the decision is urgent, the captain may choose from the largest and of least value proceeding to the smallest of the most value. Supercargoes: representatives of owners of cargoes. They sell cargo for the owner. Generally, they are only able to use profits to buy goods. If they have a special power of attorney, they may use capital to buy goods. Bottomry: Loan taken by the ship-owner secured by the vessel. If the vessel sinks, the creditor loses the right to collect and the obligation to pay is extinguished. If loan exceeds the value of the vessel, the excess is an ordinary loan. Respondentia: Loan taken by the cargo owner and secured by the cargo. If loan exceeds the value of the cargo, the excess is an ordinary loan. Marine Insurance: Insurance over the vessel or freightage, cargoes or profits expected from cargo. Accidents in Admiralty: 1.) Collision, or the impact of two or more moving vessels As opposed to Allision, the impact of one stationary and one moving vessel

2.) Arrival under stress, or when a vessel is forced to sail to the nearest port. Q: What is the obligation of a ship captain in arrival under stress? A: The captain must execute a MARITIME PROTEST, a sworn statement where the captain relates what transpired. Examples: a. Natural calamity along route.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

b. c. d.

Avoidance of pirates Loss of provisions Accident that renders prosecuting the voyage

often occurred when there were multiple colonies, e.g. LA (US) – Tokyo (Japan) – Guam (US). the

vessel

incapable

of

3.) Shipwreck Q: Is the owner of a barge a party to a contract of carriage? A: No, he is not a party, unless the barge is self-propelled. The contracting party is the owner of the towing vessel. Three zones of time in Collision: 1.) First time – anytime the danger of collision appears.

2.) Second time – from the time the danger appears until it becomes a practical certainty 3.) Third time – from the time it becomes a practical certainty to impact. DOCTRINE OF INSCRUTABLE FAULT: If there is a collision of two vessels and it cannot be determined who is at fault, each bears his own loss. However, both ship-owners are solidarily liable for the damage to all cargoes.

WARSAW CONVENTION What: It is an agreement among sovereign nations for: 1.) Having uniform documents in international air transportation,

2.) Fixing the liabilities for international air carriers. Who are the parties: The signatories are referred to as HIGH CONTRACTING PARTIES. The Philippines was not an original party because at the time, it was not yet a state and it had no aircraft. Ph was a party by accession to the US.

- Movement of goods by land or water to the aircraft What documents must be uniform: 1.) Passenger Ticket, issued by the carrier

2.) Baggage Check, the white strip of long sticker with a bar code 3.) Airwaybill, it is a B/L Currency of Indemnity: Before, original indemnity used to be fixed in Swiss Francs; now, this was changed to US Dollars. What are the fixed liabilities of the carrier 1.) Death of a passenger: $100k, no question asked.

2.) Physical

injuries: $100k maximum, depending on the severity of the injury. 3.) Checked-in articles: $1k per kilo UNLESS a greater value is declared and the fare corresponding to the bigger value is paid The value must be proven to be at least $1/kilogram; otherwise it is only value you can prove. 4.) Hand-carried articles: $1k maximum regardless of weight and actual value Why are liabilities fixed: Because of the different ways to assess damages for injuries or loss of goods What to do to claim the full amount: 1.) Declare the value 2.) Pay fare according to the value

What is an INTERNATIONAL AIR TRANSPORTATION: - One where the port of origin is in one country and the port of destination is in another - One where the port of origin is in one country and the port of destination is in the same country but the agreed stopping place is in another country. This

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

PUBLIC SERVICE Who may render public service Only - Ph citizens or - Corporations with 60% ownership by Ph citizens

Example: Boundary System where the driver pays an amount to the operator of a jeep for use of the motor vehicle for an agreed period. According to the SC, there is an employer-employee relationship between the driver and the operator by reason of the control test. OLD OPERATOR RULE: If someone is already rendering the service, it must first be allowed to offer to add the same service

Grandfather Rule: Control test where the citizenship of the corporation owning another is taken into consideration in determining the 60% Filipino ownership Who regulates public service Under the 1935 Constitution, it was the Public Service Commission. Now, it is regulated by different government agencies: DOTC, LTFRB, CAB, MARINA, LGUs (lakes, rivers) How to engage in public service 1. Application by petition 2. Hearing 3. Issuance of a CERTIFICATE OF PUBLIC CONVENIENCE, a written authority issued by the government regulator to enable persons to engage in public service DIFF WITH CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY: Latter authorizes public service for which service, a legislative franchise is required. This is because franchises are no longer exclusively legislative. Requirements or Qualifications to engage in PS 1. Ph citizenship 2. Willingness to engage in PS 3. Financial capacity – why: a. Acquiring equipment to engage in PS b. Settling damage claims KABIT SYSTEM – it is an illegal manner of engaging PS by doing it through others where it does not itself possess of the qualifications PRIOR APPLICANT RULE: If two or more persons apply to render the same public service, the one who first filed the application should be granted the authority.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

FOREIGN INVESTMENTS ACT Purpose of law: to encourage and entice foreign investments to bring in more foreign currency. It was formerly illegal for transactions to be paid in foreign currency or in relation to foreign currency. Salient Features

•

Foreigners can own 100% of any enterprise related to exports so long as it is not covered by Negative List A & B

•

Negative List A, activities reserved by the Constitution or other special laws to Filipinos e.g. advertising, public service

•

Negative List B, activities that are exclusively for Filipinos e.g. those relating to ammunition and firearms (unless the Secretary of National Defense consents), pyrotechnics, nightclubs, beerhouses, steambaths, and massage parlours.

•

Inward Remittance: A foreigner may also own 100% of a domestic market enterprise if the foreigner remits and makes an investment worth $200k or equivalent but not in areas where there are health related risks ex. Bars, beer houses, massage parlors, sauna baths, dancing halls. EXCEPTION TO $200k REMITTANCE: • If the enterprise advances technology, as determined by the DOST and hires more than 50 Filipino employees; the investment must also be no less than $100k; or

•

If the alien is a former natural-born Filipino, then he is allowed to own urban properties with an area of 5000sqm. or rural properties up to 3 hectares. If both spouses are formerly natural born Filipinos, their total lands must not exceed the above-stated land areas, and the land acquired must be in different locations.

•

Filipino Corporations: a. Domestic corporations must be at least 60% owned by Filipinos. b. Foreign corporations must be 100% Filipino owned.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

INTELLECTUAL PROPERTY CODE Governing Law: Intellectual Property Code. It is a compilation of old laws on patent, copyright, trade marks, trade names, service names, service marks. The Code is administered by the Intellectual Property Office. The head is the Director-General who must be at least 40 years of age and a lawyer. The term of the Director-General is 5 years, eligible for a single re-appointment. However, the first Director-General appointed has a term of 7 years without reappointment. Kinds of Intellectual Properties: 1.) Patents 2.) Copyrights 3.) Industrial Designs

4.) Layout or Topography of Integrated Circuits 5.) Trademarks and Tradenames 6.) Geographic indication 7.) Trade-Related Aspects of Intellectual Property Rights

PATENTS What is a patent: It is issued upon an invention, granting the exclusive right to mass produce or license the mass production of the invention. What are patentable inventions? 1. New 2. Involves an inventive step 3. Capable of industrial application What is NEW: It is new if it is not part of prior art and if it is a different technology. eg. Heat-operated microphone What is an INVENTIVE STEP: GR: It involves an inventive step if it is not just newly discovered but involved a process of trying this and that until one finds what works. eg. X tripped and fell on carabao grass, face first and discovered its magical effect on pimples. This cannot be patented because it is merely discovered without any inventive step. BUT IF X first tried guava leaves, then malunggay leaves, then garlic, then chili, and then flour to make a

paste to cure pimples, then such involved an inventive step and is thus patentable. E: Microorganisms eg Those which improve the digestive process or eat garbage. What is INDUSTRIAL APPLICATION: The invention develops a new industry or an existing one for mass production of the invention. It could lead to development of new or existing industry. What are not patentable inventions? 1. Those contrary to law, eg substitutes for shabu or prohibited ingredients 2. Those contrary to morals or public order, eg vibrator which moves back and forth at different speeds. HOWEVER, though these may not be patentable, they may be mass produced because their mass production is not prohibited by law. 3. Mere concepts or ideas, eg sound makes people move 4. Mathematical solutions 5. Surgical procedures, eg horizontal cut for caesarian birth. HOWEVER, the gadgets used are patentable. To whom are patents issued? 1. Inventor 2. Co-owners IF two or more invented it UNLESS there is an agreement to the contrary 3. One who first files an application IF the invention was arrived at by two or more persons individually and independently 4. Employer IF the employee-inventor was hired to work on the invention, UNLESS there is agreement to the contrary eg. Chemist is hired by AVON to work on makeup products 5. Employee-Inventor IF he was hired to do something else, though he made the invention during his working hours eg Security guard invented something while on duty What is the advantage in patenting one’s invention: It is only the patent holder who gets the exclusive right to mass produce the invention or to license the same. How do you know if an invention is already patented?

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

The patent symbol “P” and number are already in the invention itself.

Patent must be registered

Product may not be patented

How long is the duration of a patent: 20y from the filing of the application How soon does the applicant get the patent: Only god knows What are the KINDS OF LICENSING 1. VOLUNTARY, or by agreement between the patent holder and the licensee Can the holder just impose anything? No, there are prohibited stipulations and the list is not exclusive. The list includes the number of products produced; prohibition on export; limit on the price of sale; source of raw materials, which must be a person nominated by the holder; hiring of employees which must be recommended by the holder; any other. These are prohibited because of the great moral ascendancy of the holder over the applicant What is the right of a patent holder in the license: ROYALTIES. These are not in any amount because the IPO prescribes the amount and computation

What are the remedies of a patent holder against infringement? 1. Civil: Injunction and Actual Damages (Royalties) a. Prove actual damages. This is not easy, so just ask for royalties. b. Ask for royalties 2. Criminal: ONLY IF the infringement is repeated

INDUSTRIAL DESIGN What are INDUSTRIAL DESIGNS: It is a combination of lines, or of colors, or of lines and colors. Lines need not be straight. eg Shirts with stripes; floral designs; Burberry and Luis Vuitton

NOTE: Patent and the patented article are two different properties that must be dealt with separately.

2.

COMPULSORY How: A person applies with the IPO for a license to mass produce a patented article. Proceedings are then held before the IPO. The licensee would still be liable for royalties When:   

When the patented article is food or medicine And it is not being mass produced despite demand for it Or its current mass production cannot meet the demand for the product

Is any unauthorized copying of a patented article an infringement? NO. The following do not constitute infringement:  personal and exclusive use  use by the government, BUT it must pay royalties  research and development INFRINGEMENT Unauthorized copying

UNFAIR COMPETITION Copying a product of another and passing them off as one’s own. This is a felony.

LAYOUT OR TOPOGRAPHY OF INTEGRATED CIRCUITS What: The pattern of a mother board is intellectual property.

TRADE NAMES What is a TRADE NAME: The name that a person gives to his products to identify them and to distinguish them from the products of others. How is it different from a BUSINESS NAME: A business name is the name that a person uses to identify his place of business. It is governed by the Business Names Law. If using a business name different from true name, you register with the DTI, Bureau of Domestic Trade. There is a need for a public record of who owns

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

businesses in order to know who to sue. This is needed for signs or printed documents.

as a purchaser usually gives, as to cause him to purchase the one supposing it to be the other. Q: Who is an ordinary buyer? A: Buyer relying on the general appearance, images, and color combinations of products.

What is a TRADEMARK It is a sign, emblem, or mark that a person uses to identify and distinguish his products from that of others. What is a SERVICE NAME It is the name, sign, emblem, or mark that is used to identify service (eg. Good Year Servitek, Rapide). It covers both things and services. What is the DURATION OF PROTECTION: 10y, with limitless renewals. But after five years, the owner must file an affidavit of use (Declaration of Actual Use) of the Trademark or Trade name with the IPO over the past period. Mj: Under the IPC, the Declaration must be filed 3y from filing and 1y from the fifth anniversary (124.2, 145). Why do you need to register Trademarks or Trade names To enjoin the use by others or to file a suit for infringement Certain Rules



   

Exclusivity: Once a TM or TN is registered in the name of a person, no other person may use a similar or confusingly similar name or mark in connection with a similar or closely-related product. eg. You can’t use Del Monte in connection with foodstuff but you can use it for underwear. Trade names may be trade marks at the same time, but both must be registered to be protected. eg Selecta is a trade name and how it is packaged is a trade mark Trade names and Marks include service name and mark Taste is not protected. First to File System; prior use is not required

What is the DOCTRINE OF COLORABLE IMITATION Under this doctrine, there is colorable imitation when a person gives his product an appearance that is similar or confusingly similar in appearance to the product of another calculated to make the ordinary buyer believe that his product is the same as the product of another. Mj: Under jurisprudence, it is such a close or ingenious imitation as to be calculated to deceive ordinary persons or such a resemblance to the original as to deceive an ordinary purchaser giving such attention

Examples: 1. Bottles of Del Monte are patented. One case involved the Sunshine brand of ketchup that used the bottles of Del Monte because the owner of Sunshine could not afford to make his own bottles. The manufacturer replaced the labels of the bottles but the labels had the same color combination. Add to this the fact that the bottles had markings that they were products of Del Monte. It was not ordinary buyers that were misled but also those that read the labels.

2.

Beer na Beer Case. In the 70s, Asia Brewery created Beer na Beer (Beer housen) that had the same taste as San Miguel (pale pilsen), but Asia Brewery also used the same shape of bottles. The Supreme Court held that there was no unfair competition, applying the holistic test. The beer of AB could not be mistaken for San Miguel because the prices of the former are cheaper. TWO TESTS TO DETERMINE INFRINGEMENT: 1.) DOMINANCY TEST – when the prevalent features are likely to confuse one product with another. To determine whether there is possible confusion between products, look into the dominant features. 2.) HOLISTIC TEST – consider not just the prevalent features but also other factors. Even if there is similarity, there is likelihood that they will not be confused with each other. Example of Dominancy Test 1.) Converse vs Custombuilt – both shoes use the same star logo 2.) Alaska All Purpose Milk vs Alacta Infant Preparation – not likely to be confused with each other because each is used for different purposes. One if infant formula, the other is cow’s milk. Examples of NOT CLOSELY-RELATED PRODUCTS Del Monte in shoes.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

4.

Esso in cigarettes. What is the DOCTRINE OF SECONDARY MEANING When a name is used so long and so exclusively to identify a product, that whenever the name is mentioned, reference is readily made to said product, although the name is not registered because it is not registrable, no other person may use that name in connection with a similar or closely related product. Why do we have this doctrine: Because not all names are registrable.  Geographic words or names  Generic  Descriptive

  

Names, sign, or portrait of Past Presidents, UNLESS the widow consent’s Flags and simulations Coat of arms and simulations

COPYRIGHT Scope of Copyright Other intellectual creations, such as books, musical compositions, adaptations, song lyrics, melodies, photos, computer programs, and slogans. NOTE!  Copyright is one property and the copyrighted work is another property.  There is copyright for the lyrics and another for the melody in songs.  Adaptation of musical compositions are works patterned after the works of others  Patterns of TV and radio programs are not copyrightable Who owns copyright 1. Intellectual creator

2. 3.

Co-creators IF 2 or more persons created the same, UNLESS there is an agreement to the contrary. There is no first to file doctrine due to impossibility of making the same intellectual creation. Employer IF the person is hired to do intellectual creation, UNLESS there is an agreement to the contrary.

5.

Employee IF he is hired to do another thing, even though done during work hours. Commissioned person: If a person is commissioned to create intellectual property, the work belongs to the commissioner while the person commissioned owns the copyright, UNLESS there is an agreement to the contrary

Is registration required for protection? NO. system, NOT the first-to-file.

It follows the first-to-use

What is the DURATION OF COPYRIGHT: Copyright is protected from creation and lasts until the lifetime of the copyright holder and 5y from his death (which is counted from the first day of the year following his death). If a person wants copyright protected, within 30d of becoming public, register the work. Mj: BUT under the IPC, Registration is purely for recording the date of registration and deposit of the work and shall not be conclusive as to copyright ownership or the term of copyrights or the rights of the copyright owner, including neighboring rights. Advantage of Copyright: Copyright cannot be attached while it belongs to the intellectual creator. However, when transferred to another, it may be levied. This is different from patent which can be attached even if owned by the intellectual creator. What are RIGHTS OF A COPYRIGHT HOLDER 1. A copyright is an economic right. Economic rights include: a. the right to mass produce the work or to license it; b. the right to make other versions of the work 2. A copyright includes moral rights, or the right of the owner to demand that his authorship be acknowledged and in a certain manner of presentation. If there are errors, he can demand rectification of the errors. What are the REMEDIES AGAINST INFRINGEMENT • Civil action for injunction and damages

•

Criminal prosecution. Repetition of infringement is not required! The very first act of infringement is already criminal. But for the prosecution of piracy, the original is required. The law provides for the destruction of printed materials, plates and stencils.

Are there acts of copying that are not infringing? YES

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

1.

2. 3.

4. 5.

Personal use, one copy only Quotations of portions from books, with acknowledgement Fair use of legitimate computer programs, eg one computer, one program Libraries with old books may reproduce these books so long as they are no longer being published. However, this is only for library use and not for resale. Rebroadcasting, which is only a simultaneous broadcasting.

Q: Whom do our intellectual property laws protect? A: The following: 1. Citizens, nationals 2. Residents with an effective establishment 3. Residents of a country that participated in an international convention where the Philippines also participated. 4. Citizens of countries that offer reciprocal rights to Filipinos. Q: May foreign corporation, not registered with the SEC as a foreign corporation, sue in our courts for the protection of intellectual property rights? A: Yes, Philippines is part of Paris Convention for Protection of Intellectual Property Rights. Mj: As long as there is reciprocity.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

INSURANCE LAW What is INSURANCE Insurance is a contract whereby one person, known as the insurer, agrees to indemnify another person, known as the insured, against loss, damage, or liability arising from an unknown or contingent event. What is an ASSURANCE: It is a life insurance initiated by the beneficiary himself. Who are the PARTIES TO AN INSURANCE 1. Insured 2. Insurer 3. Assured What are the CHARACTERISTICS of an Insurance 1. Aleatory contract. It involves the assumption of risks

2.

3.

Indemnity contract. It is not a wagering contract where one invests and hopes to profit. In insurance, one invests to be restored to the same status prior to the risk happening. The insured does not expect to profit. Risk-distributing. It is not a risk-shifting device as guarantees or suretyships.

Insured does not expect to profit: ex A new car is insured against theft so that in case of loss, the insurer gives the insured money to acquire another car. In life, the money is given not to buy another person but to divert and assuage the feeling of loss What is REINSURANCE The insurer insures the same risk with another. eg Your life is insured with A for P10M. Then A finds out that you are entering politics, and thus the chances of dying increased. A thus goes to B to reinsure your life for P6M. Thus, when you die, A pays only P4M from his own funds, while B pays for P6M. Q: If the insurance company is bankrupt, can the beneficiary claim from the reinsurer? It cannot, because there was no privity of contract. However, the beneficiary may still file with the bankruptcy court because the claims against the reinsurer are part of the receivables of the corporation. The reinsurance will be part of the bulk of assets of the insurance and be distributed according to the Civil Code provisions on preference of credits

Who may be an INSURER 1. GR: Only CORPORATIONS may be insurers, NOT individuals or partnerships. E: Insular Life (previously a limited partnership but now a mutual benefit company) Why: In cases of individuals or partnerships, they may predecease the insured 2. Certificate of Authority (a yearly license) must be obtained from the Insurance Commissioner. The insurer must first obtain a clearance from the IC, who will issue a formal indorsement of incorporation papers to SEC. The Insurance Commission prescribes a minimum paid-up capital for insurers. For non-life insurance it must be P250M, for life insurance it must be P500M. By 2016, the minimum paid-up capital required for both is P1B. Who may be INSURED Anyone with an insurable interest. What is INSURABLE INTEREST A person who has such a relationship to the thing or life insured that he will benefit from its preservation or damnified by its loss or destruction. Kinds of Insurance

• •

Property or non-life, insurance over a thing Life, over a human life

Insurable Interest in Property Insurance 1. Existing right, eg mortgagee

2. 3.

Expectancy founded on an existing interest, eg purchaser of crops Inchoate right founded on an existing right, eg SHs of a corp.

When must Insurable Interest exist? At the time of taking the insurance and at the time of loss, EVEN IF in the interim, it does not exist. Insurable Interest in Life Insurance

• • •

Oneself Spouse Descendants

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

• •

Another upon whom one depends for support

•

Another upon whose life an estate depends, eg usufructuary who sells his usufruct to another, reservista in reserva troncal

Case of Sun Life Canada: The person applied for insurance coverage. In the application form, there was a question on whether or not the applicant had any consultation or treatment with a doctor for the past two years. It was not answered, and the policy was issued. The insured then died from a plane crash. It was discovered by the insurer that the insured had been previously hospitalized for a heart condition. The policy was therefore rescinded and refused to be paid because of concealment of a material fact. The SC affirmed the insurer. What is concealed or misrepresented need not be the proximate cause of death. HOWEVER, the insurer must refund the premiums paid.

One who is obliged to pay him a sum of money or whose death may delay the performance of an obligation, eg Debtors, obligors

When must Insurable Interest exist? At the time the insurance is taken; thereafter it need no longer exist. Q: If one is insuring a debtor, for how long is the insurance effective? A: Theoretically, there is no limit. Insurance is effective even after payment because insurable interest in life insurance should exist only when it is taken. However, in practice, it is only up to the end of the obligation. Q: What is meant by “upon whose life an estate depends”? A: An example is when the assignee insures the life of an assignor. Another example is in case of reserve troncal, the life if the reservista is insured. How does one get to be insured? One must file an application for insurance coverage with the insurer. The application form asks basis information and representations. What are REPRESENTATIONS These are matters truthfully stated by the application in the application form, which information may influence the insurer in acting on the application.

Can the insurer rescind the policy at any time? NO. 2y! What is the CONTESTABILITY PERIOD?

•

As a general rule, the insurer is entitled to rescind the policy only within two years from the last reinstatement or from issuance of the policy. OTHERWISE, after the two-year period, the insurer can no longer contest the insurability of the insured.

•

EXCEPT! In cases of FRAUD OF THE VICIOUS TYPE, the policy may be contested beyond two years. eg When the applicant for life insurance substitutes his urine sample.

PROPERTY INSURANCE

What are MISREPRESENTATIONS Untruthful statements on matters which may influence the insurer in acting on the application.

What is OVER-INSURANCE In PROPERTY insurance, the property is insured for a value over the value of the insurable interest. It is a void insurance as to the excess. eg Property is P800 worth but is insured for P1M.

What is CONCEALMENT It is the omission or neglect to communicate what one knows and ought to communicate.

Why only in property insurance: Life is incapable of pecuniary estimation. BUT IN PRACTICE, earning capacity is taken into consideration in determining the policies.

What is the CONSEQUENCE OF MISREPRESENTATION The misrepresentation of a material fact entitles the insurer to rescind the policy. Who determines materiality: It is the insurer because materiality is determined by the influence which the misrepresentation or concealment has on the insurer in assessing the risk it is to assume.

What is the VALUE OF THE PROPERTY? Acquisition cost and replacement costs, estimated at the value of the property at present. What is UNDER-INSURANCE In PROPERTY INSURANCE, a person insures his property for an amount less than the value of his insurable interest. This is valid.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

eg Property is worth P1M but the fire insurance taken is only for P400k.

Example 3: In case of partial loss in under-insurance where the value of the property is P1M and the loss is P200k, the loss is apportioned accordingly: Insurer is (600k/1M) (200k) or P120k Owner is (400k/1M) (200k) or P80k

What is the effect in case of loss:

• •

In case of total loss, the insurer pays the amount insured in full. In case of partial loss, the insurer only pays the amount insured in proportion to the total value of the thing insured eg Property is worth P1M, and is insured for P400k. If the loss in estimated at P200k, the amount of the indemnity is only 40% (400k / 1M) of P200k, which is P80k.

What is CO-INSURANCE It is similar to co-ownership and exists only in practice. It can arise in two situations: in double insurance and in under insurance (full and partial loss). DOUBLE INSURANCE: When the same thing and the same interest are insured against the same risk with more than one insurer. There are thus two or more insurers who apportions the indemnity to the extent of the amount agreed upon under the policy. It is valid as long as the total insurance coverage is within the insurable interest. UNDER-INSURANCE: In case of partial losses. Example 1: Property is worth P1M. It is insured with A for P500k, B for P300k, and C for P200k. If there is a loss estimated at P400k, who pays the loss? Is it A because he insured the property for P500k? NO. The indemnity is shared proportionally as follows: Amount insured Total amount insured

x Amount of Loss

THUS, the liability of A is (500k/1M) (400k) B is (300k/1M) (400k) C is (200k/1M) (400k)

What are POLICIES A policy is the instrument embodying the insurance. • It must be printed. What is not printed is the personal information of the insured. • Policies of insurers contain almost identical provisions because drafts are pre-approved by the Insurance Commissioner to avoid ambiguity. What are the KINDS OF POLICIES IN PROPERTY INSURANCE 1. OPEN, where parties agree on the maximum amount of insurance coverage and the premium is paid on such amount, BUT the value of the thing insured is determined at the time of loss. This is availed of when the prices of the object fluctuate.

2.

VALUED, or when the parties have already agreed on the value of the thing insured; eg Car is valued at P1M. In case of loss, the indemnity shall be that agreed upon.

3.

RUNNING, which contemplates successive insurance contracts where the insurance coverage over goods sold are transferred to goods which serve as replenishment. Insurance coverage on some things, after they have been disposed of, shall also apply to the replacements. eg. Merchant on his inventory and structure; Grocery

or P200k or P120k or P80k.

Example 2: If the property worth P1M is insured only for P600k (under-insurance), the owner becomes a self-insurer to the extent of P400k and bears the risk of loss alone like someone who did not insure his property. In this case, the property owner is considered as a co-insurer.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

LIFE INSURANCE What is Life Insurance: It is the policy where the insurer agrees to pay the indemnity in case the insured dies. It includes casualty insurance, which also insures against death, whether natural or accidental What are the KINDS OF POLICIES IN LIFE INSURANCE 1. TERM, or when the insurance coverage is for a definite period agreed upon at the beginning. The parties agree on a period of insurance coverage. The premium is low because it does not have nonforfeiture values. a. If the insured survives, the policy expires. b. As a general rule, the surviving insured does not get anything. c. The exception is a contract of ENDOWMENT, where the insured will receive the face value of the policy if he survives the expiration of the term but he is no longer insured. If he dies within the term, the amount will be paid to his beneficiary.

2.

ORDINARY, or when there is no term and the insured remains insured as long as he pays the premium. The duration depends on the contract or policy. Premiums are thus payable for as long as the insured is alive. a. BUT THE NORMAL LIMIT IN POLICIES IS 100 YEARS OLD! Upon reaching such age, the amount of the policy is paid because the contract of insurance had lapsed. As to the insurer, the insured already died. b. There are variations of life insurance. 20 pay life is when the insured pays for the full premiums for 20 years while pay life at 65 is when the insured pays the premiums until the age of 65.

What are NON-FORFEITURE VALUES IN ORDINARY LIFE INSURANCE These are living benefits. These do not exist in term insurance where the insured only gets the face value of the policy. a)

CASH VALUE

When: From the third year of premium payment, part of every premium payment made by the insured is set aside by the insurer for the insured. Every year, the rate of case value increases. Example: In Year 1, the premium of P20k is paid and the insured survives. In Y2, P20k is paid and the insured survives. At this point, the P40k paid goes down the drain if the insured survives because of the overriding commissions of salesmen. The case value begins to accumulate on the third year. Thus, in Y3, from the premium of P20k, the cash value is P1k and the rest goes down the drain. In Y4, the cash value is now P2k, and so on. The longer you pay premium, the more goes to the cash value, such that in Y20, 80% of the premium paid is cash value. What is its advantage: if you need money but you want to remain insured, you can first surrender the policy and borrow the cash value. If you are unable to pay, interests are charged. What is CASH SURRENDER VALUE If the policy is returned and the premium is no longer to be paid. insurance ceases.

The

b) PAID-UP INSURANCE When: The insured, without having to pay additional premium, is insured for the rest of his life at an amount corresponding to the cash value, and no longer at the original amount. The insured is fully paid for the rest of his/her life but for a lower amount of insurance. Example: Insurance is originally for P1M, but now, he is insured only for P600k to be paid from his cash value. c) EXTENDED TERM INSURANCE When: When the insured is no longer paying an additional amount but is still insured at the same price, but only for a specified duration. Example: The insured is originally insured for P1M, for 21y5m. If he dies, the beneficiaries get the amount in full. If he survives, the policy lapses. What is the nature of these non-forfeiture values? They are alternative. Normally, the policy stipulates that upon failure to pay the premium, the insurance would be converted into paid-up or extended. NOTE: Many insurers now offer participatory plans. The insured, although not a stockholder, receives a portion of the net profits of the insurer.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

What are PREMIUMS These are the amounts the insured has promised to pay the insurer to keep the policy active. How is it computed in Property Insurance



As a general rule, they are computed on an annual basis and fully paid in advance. How are premiums paid: CASH ON DELIVERY (COD) of policy. In the policy, there is a printed acknowledgement of premium payment. Policies thus serve as receipts as well. May premiums be paid on credit and in the meantime, be insured already? These days, premiums may also be paid by credit card which is as good as cash. According to the SC, it is not prohibited by law. THUS, when the risk happens when the premium is not yet paid, the insurer is obliged to pay as long as the premium is paid within the credit term. The insured must thus pay the premium first before he files his claim. UCPB v. Masagana: Masagana procured fire insurance from an agent. It was not able to pay immediately because of the internal processing time of the check. The policy was delivered to Masagana, but before its check was released to the agent, fire broke and damaged the properties. Masagana tried to pay the insurer and the insurer accepted. The following day, it filed a claim, but the claim was rejected because premium had not been paid. The SC considered the insurer in estoppel because it was regular procedure for the insured and insurer to pay at a date later than the effectivity of the policy. There was a customary date of payment.



Exceptions: o SHORT-TERM RATES, where the insurance is for a period less than 1y, thus the rate is on a short-term rate. o HEIRS BOND, where the premium is computed and paid on an annual basis but for two-year’s worth. This is in line with the requirement in the Rules of Court to answer for the claims of creditors and excluded heirs in extrajudical settlements.

taken by a group of persons) which is the most expensive premium payment. Note: The more premiums are paid, the higher the amounts because of high administrative costs. When do you pay the premiums? Every time a premium is due in a life insurance policy, there is a ONE-MONTH GRACE PERIOD. If the same is not paid, the amount is deducted from the insurance. Why is there a grace period? Insurers do not want their policies to lapse. What if the insured fails to pay after 1m? 1. IF there is an AUTOMATIC PREMIUM LOAN CLAUSE, the accumulated cash value would cover the unpaid premium as a loan. Example: Premium is due on Dec. 15, 2012. It remains outstanding until January 22. The policy could have lapsed already but the accumulated cash value was used as a loan to pay for the premium. If the insured dies, the insurer pays the policy less the amount of the loan and the interests. 2. IF there is no such clause, the policy lapses. What are the options of the insured when the policy lapses? • He can apply for a new policy (BUT with higher rates because he is now older)

•

He can apply for a reinstatement of his policy, where the premium is at the original rate, BUT he must first pay all accrued premium and interests due in lump sum. There is no limit as to the number of times the insured reinstates his insurance. He must either undergo the same process for application of a new policy, or merely issue a Health Statement. HOWEVER, it is best not to reinstate because the contestability period is renewed. NOTE: Reinstatement is not a matter of right, but discretionary on the part of the insurer.

How is it computed in Life Insurance It is computed annually but the frequency of payment depends on the agreement of the parties. Annual payment is cheapest; Semi-annual or semestral is higher than the annual; Quarterly; Monthly; Daily (for industrial life insurance

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

What are LOSSES in Property Insurance? 1. PARTIAL, or when only a part of the thing insured is lost. There is partial loss only in property insurance. 2. TOTAL, or when the thing is lost in its entirety. BUT in Marine Insurance, total loss can either be: a. ACTUAL b. CONSTRUCTIVE a. When more than ¾ of the thing insured is lost or damaged, or b. When the damage is not big but to put the thing back to its original condition, more than ¾ of its value will have to be spent When is the insurer obliged to pay? If the proximate cause of the loss or damage is the risk insured against, although the direct and immediate cause is not the risk insured against. eg House is insured against fire. During a storm, a lightning hit the electric post near the house. The firemen directed the water against the post and as a result, the post fell and collapsed on the roof. The damage is covered by the insurance. Though the house was not directly damaged by the fire, it was the burning of the electric post that caused the damage. What must the insured do in case of loss or damage? 1. He must file with the insurer: a claim for indemnity and a preliminary proof of loss or damage eg Pictures are sufficient proof. They need not be in the same degree as required by courts. In practice, the insurer refers the claim to an INSURANCE ADJUSTER, an independent third party who is licensed by the Insurance Commissioner and paid by the insurer to determine the extent of the loss or damage, and to inform the insurers who acts on his recommendation.

Who may be a BENEFICIARY

 

GR: The insured may designate anyone. Beneficiary need not have insurable interest in the life of the insured. E: o Those disqualified by law from making or receiving donations inter vivos

o o

Guilty of adultery. BUT One may designate his kabit who is single and who he sees only during lunch because there is no adultery and no cohabitation. Government officers

How many beneficiaries may be designated? 1. PRIMARY, one whom the insured wants the proceeds ahead of the others 2. CONTINGENT or SECONDARY, in case the primary can no longer receive the value NOTE: In the absence of a qualified beneficiary, it pertains to the estate of the insured. How may beneficiaries be designated? 1. IRREVOCABLE. This is the general rule. The written consent of the beneficiary is required in case of revocation and change. Why require written consent? Because in effect, all rights under the policy have already transferred to the beneficiary. EXCEPTION TO WRITTEN CONSENT: Legal separation, where the innocent spouse may revoke without it.

2.

REVOCABLE, where the beneficiary may be changed at any time. There is a small box in the application form if the insured wishes to the designation to be revocable.

In case of death, what are required to be filed with the insurer? 1. Death Certificate 2. Birth Certificate, to ascertain the true statement of age when the insured applied for insurance If there is a misrepresentation on age: This is a material misrepresentation. BUT if the two-year contestability period has lapsed, the insurer is allowed by equity to adjust the amount of insurance indemnity based on the true age of the insured. The premium that the insured paid will be used to pay for an amount of insurance coverage corresponding to your true age. If the insured is younger, this has no effect. This applies only if the insured is actually older than his stated age. 3. Sworn Affidavit from two persons that they know the insured and that he is already dead How to settle claims in property insurance

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

a. b.

Pay the cash value Replace the thing with another property of the same kind and quality Note: This is common in motor vehicle insurance, where other insured abandoned the insured thing to the insurer. Insurer salvages parts from the vehicles left to replace those needed in the currently insured vehicle. However, replacement needs to be in good condition

Q: What if the house burns because of the insured’s negligence? A: The insured may still recover. It is only when the insured breaches a promissory warranty or intentionally acts to cause damage that he may not recover.

CASUALTY OR ACCIDENT INSURANCE FIRE INSURANCE Scope of Insurance: Strictly speaking, fire insurance includes earthquake insurance, but in practice the fire insurance excludes earthquake as a risk. The insured and insurer negotiate as to its inclusion where the insurer checks the plans and foundation of the property. Q: If you want to vary the policy, how do you vary it? A: On the policy, the insurer adds a rider. Q: What is a rider? A: In a policy, the rider is a strip of paper containing a stipulation varying what is printed. The rider is glued to the policy. An authorized representative of the insurer signs it. What are the Kinds of Fire 1. Friendly fire, used for beneficial purposes.

2.

Hostile fire, damages property. control, it becomes hostile.

When friendly fire goes out of

What is the amount of insurance: If you are going to insure your house or structure, the insurer will normally insure it for acquisition or replacement cost. Higher premiums are paid for the replacement cost. TIP: Do not insure the foundation because it would not be destroyed by fire. When is the insurer not liable: In fire insurance, the insurer will not be liable to pay the indemnity if there was breach of a warranty. - Affirmative warranty – representations - Promissory warranty – undertakings ex. You will not bring into your house two tanks of LPG.

What is casualty insurance? Where the insurer pays indemnity upon the death of the insured or upon the loss of certain body parties due to an accident. It is generally used only for loss of body parts but it now includes accidental death. What is the scope of protection: Indemnities are added with additional premium. What are compensable body parts? Either eye; Either arm; Either Leg The full amount of insurance coverage is given for loss of both eyes, both arms, or both legs. If you lose only one of each, indemnity shall only be ½. If you lose one arm and one leg, the indemnity is still ½. In the Philippines, we do not have insurance for individual body parts.

MARINE INSURANCE What is Marine Insurance: It is insurance over a vessel, its freightage, its cargoes, and its expected profits from cargoes, against loss, damage, or liability arising from the perils of the sea (NOT perils of the ship). What is the extent of insurable interest:

 

OF THE SHIP OWNER: Value of the vessel, LESS the amount of loan on bottomry OF THE CARGO OWNER: Value of the cargo, LESS the amount of loan on respondentia Why deduct the amount of the loans: The borrower loses his interest equal to the amount loaned because if the thing is destroyed, it need not pay.

What is the difference between fire and marine insurance: In fire insurance, the obligation of the insurer to pay continues to exist even if the house is burned.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

In marine insurance, the obligation to pay the loan, in case there are loans on bottomry and respondentia, is extinguished if the vessel is destroyed or sinks, or when the cargo is lost. The value of the owner’s interest is already paid. What are the PERILS OF THE SEA These are the danger and risks related to the action of the wind and water. These are risks related to navigation. What are PERILS OF THE SHIP These relate to the physical condition of the vessel, to the incompetence of the crew, or both. NOTE: Marine insurance does not cover perils of the ship BECAUSE in every contract of marine insurance (either over the vessel or the cargo), there is an implied warranty that the vessel is seaworthy. What is SEAWORTHINESS: Seaworthiness is a relative term in relation to cargoes. A vessel may be brand new but absent any refrigerating facilities, then it would not be seaworthy for raw meat. It would, however, be seaworthy for livestock. Why does the warranty apply to cargo owners: Because he can choose the shipping company to be used. What happens when the insurer pays the insured? When the insurer pays the indemnity, he is subrogated to the rights of the insured and can run after the person/s who cause the loss or damage. TIP: If you are counsel for the insurer and you file a claim based on the subrogation, present a DEED OF SUBROGATION and a COPY OF THE INSURANCE POLICY. The deed of subrogation proves the subrogation but not the contract of insurance. Thus, prove the latter with the best proof: policy.

What is the effect of deviation on the liability of the insurer: If the deviation is proper, then there is no effect. Insurer still liable. If improper, the insurer shall be relieved from liability. When is deviation proper: 1. To avoid natural calamity 2. To avoid pirates 3. To save human lives NOTE:  In marine insurance, the adjustment company and insurer must have absolutely no interest in each other.



Authority of Insurance Commissioner is broadened, now it also has supervision of pre-need contracts. PRE-NEED CONTRACTS are those where the corporation, in consideration of the promise of a person to pay an agreed amount of money in cash or in installments, agrees to deliver to the latter an agreed amount of money or to render a particular service upon arrival of a period or upon the happening of an event.

SURETYSHIP What is Suretyship: As a general rule, it is not a contract of insurance but a risk-shifting device. EXCEPT! Suretyship is part of the insurance business IF it is carried out by an insurer. Examples of sureties: bail bonds, performance bonds; surety bond; fidelity bond. In case of court bonds, must have accreditation from the Supreme Court, renewed on a monthly basis.

What are the KINDS OF LOSSES in Marine Insurance? Losses may be partial or total. Total loss may be actual or constructive. There is CONSTRUCTIVE LOSS when loss or damage is more than ¾ or even though not more than ¾, more than ¾ of the value shall be spent to restore it. In constructive total loss, the insured entitled to recover as if there was actual total loss. However, the insured has to abandon the property insured to the insurer. Abandonment may be total or unconditional.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

NEGOTIABLE INSTRUMENTS LAW Applicability of the Law: It is an obsolete law but there are still provisions which are still in practice. Thus, it must be read it with the Civil Code. What are INSTRUMENTS These are instruments of credit which involve money except when the instrument gives the holder the right to deliver another thing. They could be either a promissory note or a bill of exchange, known as money substitutes. They can be assigned or negotiated. When negotiated: If the instrument qualifies as negotiable under section 1. When assigned: If it does not qualify under sec. 1

5.

Who are the parties in a Promissory Note? 1. MAKER of the promise

2.

What are the REQUIREMENTS FOR NEGOTIABILITY a. PROMISSORY NOTE 1. It must be in writing and signed by the maker 2. It must contain an unconditional promise to pay a sum certain in money 3. It must be payable on demand, or at a fixed, or determinable future time 4. It must be payable to order or bearer

1. 2. 3. 4.

b. BILLS OF EXCHANGE It must be in writing and signed by the drawer It must contain an unconditional order to pay a sum certain in money It must be payable on demand, or at a fixed, or determinable future time It must be payable to order or bearer

PAYEE, to whom the promise is made

Who are the parties in a B/E: There are two original parties 1. DRAWER, who signs the B/E 2. PAYEE 3. DRAWEE who is ordered to pay the instrument BUT who does not become a party EVEN IF his name appears on the instrument UNTIL he accepts the B/E and becomes a party as ACCEPTOR. 1st Requirement: IN WRITING AND SIGNED

What are PROMISSORY NOTES These instruments of credit where the obligor who borrows money from another or incurs the obligation to another, binds himself to pay. What is a BILL OF EXCHANGE It involves obligations but instead of the obligor binding himself to pay, he orders another person to pay.

The drawee must be named or indicated therein with reasonable certainty

2ND: A. UNCONDITIONAL PROMISE OR ORDER What is a CONDITION Under the Civil Code, it is a future or uncertain event, or past event unknown to the parties. It may either be Suspensive or Resolutory, which are valid, or Potestative, which is void. SUSPENSIVE CONDITION: It holds in abeyance the demandability of the obligation. As long as it is not fulfilled, the creditor cannt demand the fulfillment of the obligation. RESOLUTORY CONDITION: One which puts an end to an obligation. What is required in the NIL:

 

There must be no suspensive or resolutory condition. It is also invalid to stipulate that the amount would be paid from a particular fund. BUT in a B/E ONLY, IF payment is not from a particular fund, but its reimbursement is from a particular fund, the instrument is still negotiable.

Why is it required to be unconditional: To serve the purpose of negotiable instruments, which is to facilitate commercial transactions where one can transact without having cash on hand.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Q: If the instrument does not meet the requirements of sec.1, or it is nonnegotiable, is it valid? A: YES, negotiability is different from validity. It is also transferrable but by assignment.

In case of stated installments, there must be certainty in the amount of every installment and date of payment or when every installment is payable. Example: “I promise to pay B, P10k in two equal monthly installments.” This is NOT NEGOTIABLE. Though the amount is determinable, there is no indication as to when it is payable.

2nd: B. PAY A SUM CERTAIN IN MONEY What does it mean: What is to be paid is sure to be money. GR: Instruments involve money E: The instrument is still negotiable if it gives the holder the right to demand the delivery of another thing. The right must be given to the holder, and NOT the drawer, maker, or drawee. Otherwise, the instrument is only non-negotiable; it is still valid. eg “I promise to pay P20k on or before April 2, 1992, or at the option of the holder, I agree to deliver a pig instead.” Example: Promise to pay bearer one thousand is INVALID because it stated no currency. Example: A provision for payment of interest at an agreed rate is valid. “I promise to pay bearer P30k on or before December 31, 2012, together with interest of 2% per month.” This is valid. If the date of reckoning of the interest does not appear, then it is the date of issue. If the date of issue is not stated, then the holder may insert the true date of issue. DATE OF ISSUE is not required in Sec. 1 but it is not totally irrelevant. It is merely not required for negotiability but it is important in relation to the obligation to pay interests. POSTDATED: Date of issue is stated in the future ANTEDATED: Date of issue is stated in the past NOTE: Ante- and post-dating do not affect negotiability but could affect rights of holder and liabilities of maker or drawer. Example: “I promise to pay bearer P30k on or before April 2, 2012, with interest.” This is valid because the interest rate would then be the legal rate of 12% pa, if no rate is stated. Example: “I promise to pay bearer P30k on or before April 2, 2012, with interest of 30%.” This is valid even if there is no indication as to the frequency of interest payment. In such case, payment would only be once.

What is a DIVISIBLE OBLIGATION: When the amount of the obligation is payable in stated installments, it is a divisible obligation that may be performed in parts. What is the Effect of a Divisible Obligation: If the obligor defaults on the first installment, the creditor cannot sue yet for the entire obligation because the period had not yet lapsed, as provided under the Civil Code. The creditor’s remedy is to put an acceleration clause. NOTE: It is also a sum certain even if there is a proviso for compounded interests, the payment of attorney’s fees, costs of suit and expenses of litigation. Negotiability is also not affected by a statement of the transaction that gave rise to the issuance of an instrument. 3rd: PAYABLE ON DEMAND, AT A FIXED TIME, OR AT A DETERMINABLE FUTURE TIME When is the instrument PAYABLE ON DEMAND When it is so stated to be payable on demand or When no date is mentioned as to payment (pure obligation), or When it is payable on sight. eg When the creditor demands payment, literally, and no period is involved. The creditor, upon handing the money to the debtor, collects the same two minutes later. When is it PAYABLE AT A FIXED TIME When the obligor is to pay ON a particular date or ON OR BEFORE a particular date. “On or before” is construed favorably to the debtor. Under the Civil Code, when the period is fixed, the creditor cannot demand payment, and neither can the debtor demand acceptance earlier than the period. But under the NIL, the creditor must accept the amount even if it is tendered before the expiration of the period. When is it PAYABLE AT A DETERMINABLE FUTURE TIME

What if the instrument is payable in installments

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

If, for example, it is payable within 15d from the proclamation of the 2013 elected senators. It not valid if the period states “on or after April 12, 2012” because it is not determinable. What is the remedy in case of uncertainty in period? Ask the court to fix the period.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

4th: PAYABLE TO ORDER OR TO BEARER

1.

What is “payable to order or to bearer” These are the WORDS OR PHRASES OF NEGOTIABILITY. The instrument can also use “holder” or “possessor”. It is important to know the presence of these words to determine the manner of negotiation.

2.

When is it an ORDER INSTRUMENT A stipulation that an instrument is “NON-NEGOTIABLE” is immaterial because it is always payable to order in the following cases:

 

  

Pay to Jose Cruz or order Pay to the order of Jose Cruz Pay to the order of Jose Cruz and Pedro (joint where there are two payees) Pay to the order of Jose Cruz or Pedro Cruz (several) Pay to the order of the holder of office for the time being

How is an order instrument negotiated? By Indorsement of the holder, followed by delivery. Otherwise, the negotiation would be ineffective/ When is it a BEARER INSTRUMENT  Pay to bearer



Pay to Jose Cruz or bearer (NOT “to bearer Jose Cruz” where the designation of “bearer” is only descriptive and thus the instrument is non-negotiable)



Pay to order of Batman (to the order of a fictitious person and such fact must be known to the person making it so payable)



Pay to the order of Adolf Hitler (to the order of a non-existing person and such fact must be known to the person making it so payable)



Pay to the order of cash (to the order of a payee who does not purport to be a name of any person)



When the last indorsement is in blank

3.

If the instrument is signed and delivered but there are blanks therein, then the holder-deliveree has the implied authority to fill in the blanks according to the true agreement of the parties If the instrument is not yet delivered, then it cannot be enforced against the maker or drawer. It is unenforceable. If the instrument is already completed but not yet delivered, and it falls into the hands of a holder in due course, then the HDC is protected and his rights are not subject to personal defenses EXCEPT Forgery.

Who are LIABLE UNDER A NEGOTIABLE INSTRUMENT 1. PROMISSORY NOTE: Maker

2. 3. 4.

BILL OF EXCHANGE: Drawer and the Drawee Who Accepts PN/BE: Endorsers Forgers

Who are Endorsers Endorsers are persons who sign the instrument. Only those whose signature appears in the instrument are liable thereon. In cases of negotiation by delivery, they are liable only to the immediate transferee. What is the liability of Endorsers? Their liability may either be general or irregular, as when they sign the instrument but they have no concern therein. May they sign through agents? YES, as long as the agent discloses the principal and acts within the scope of his authority.

How is a bearer instrument negotiated? By mere delivery. Any indorsement is a mere surplusage. What are the EFFECTS OF DELIVERY

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

What is NEGOTIATION Negotiation is the transfer of an instrument as to constitute the transferee the holder thereof.

authority to enter into subsequent contracts”. This affects and ends the negotiability of the instrument.

What are the MODES OF NEGOTIATING AN INSTRUMENT 1. ORDER: Indorsement and Deliver 2. BEARER: Delivery

What is the EFFECT OF THE SEQUENCE OF ENDORSEMENTS The first in the list is presumed to be the first endorser. As such, subsequent transferees can run after prior endorsers. Thus, in practice, endorsers first sign at the bottom, or sign with a date.

What is an INDORSEMENT It is negotiation through the signature of the person who has the right over the instrument or document.

eg Pedro Cruz first signed the instrument. Jose Santos then endorsed it to Juan Reyes. Juan Reyes can then run after Pedro and Jose should the instrument be dishonored.

Where is the indorsement placed? The law is silent. - It is customary to be made at the back so as not to confuse the endorser’s signature with that of the maker or drawer, especially in cases of PNs stating “I promise to pay” and there are two signatures appear, the result being the two signatures treated as co-makers. - It may also be made in an ALLONGE, or a separate sheet of paper attached to the instrument where the indorsements can be made.

What is the EFFECT OF A MARKED-OFF ENDORSEMENT When a name is stricken off, the holder cannot run after the stricken off endorser and all the endorsers subsequent to such name because they are relieved from liability as there are no more indorsements in their favor.

Are there limits on the number of indorsements? Under the NIL, there are none. BUT under a Circular of the Monetary Board, banks are prohibited from accepting any check with more than one endorsement to avoid forgeries against banks. What are the KINDS OF INDORSEMENT 1. IN BLANK, when the holder merely signs his name

2.

3. 4. 5.

SPECIAL, when the transferee is named and the holder signs the same. The indorsement need not contain the words of negotiability, eg “Pay to Jose Cruz”. Such words are required only on the face of the instrument and not on specific endorsements. eg “Pay to order of Jose Cruz only” is a special and restrictive endorsement. CONDITIONAL, as when it states “Pay to X only if he graduates on March 2013”. This is also a special indorsement and which does not affect negotiability. QUALIFIED, if the holder adds “without recourse” to his signature. There is no recourse to him if the instrument is dishonored. RESTRICTIVE, as when the endorser states “Pay to Jose Cruz only” or “Pay to trustee only for the purpose of collection without

Who are the HOLDERS OF AN INSTRUMENT 1. Holder for value 2. Holder in due course Who is a HOLDER IN DUE COURSE A holder in due course is one who acquired the instrument under the following conditions (Sec. 52) a. That it is complete and regular upon its face; b. That he took it in good faith and for value; c. 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; 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. 1st: COMPLETE AND REGULAR When is an instrument complete? No blanks When is it NOT REGULAR? RE: CROSSED CHECKS: Crossing of checks, or the placing of two parallel lines on the upper left corner of a check, makes the instrument no longer regular on its face (SIHI Case). This is because such crossing indicates that the check is not intended for encashment but only for deposit to the bank

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

account of the payee. It may thus be endorsed only once, ie for deposit to the payee’s account. La Suerte Cigarette Company v. SIHI: The cigarette company sold its products through agents. The clients deposited post-dated checks with the agents who rediscounted the same with SIHI but appropriated the proceeds. The clients refused to pay the checks because the products were not delivered to them. SIHI thus failed to collect. It was not considered as a HDC. 

REMEDY OF THE HOLDER: Ask the drawer to re-date it with his counter-signature. 4th: NO NOTICE OF INFIRMITY OR DEFECT OF TITLE Can the PAYEE be a HDC



If there are alterations it might not appear regular upon its face, it might be considered irregular. 2nd: IN GOOD FAITH AND FOR VALUE

When is it acquired IN GOOD FAITH: When the transaction is above fraud. When it is acquired FOR VALUE  When the acquisitions is for a valuable consideration under the law on contracts, and  When the consideration is not contrary to law, morals, good customs, public order and public policy Example: Law endorses the check he obtained from his client to a prostitute. The prostitute is not a holder in due course because her services do not constitute a valuable consideration under the contract law. BUT IF the check is endorsed to a massage lady or house cleaner, then the latter is a HDC because the check was acquired legitimately. 3rd: BEFORE OVERDUE When is an instrument overdue When the date of payment has passed.



As a general rule, NO because the fourth requirement contemplates a transfer, “at the time it was negotiated to him”. And between immediate and direct parties (payee and maker/drawer), personal defenses are available. The purpose of the principle of HDC is to build confidence in instruments of credit as a money substitute. An exception is provided by the SC where the payee is treated as a HDC because of the peculiar circumstances of the case. A owed B, and B owed C. B requested A to make A’s check payable directly to C. C thus sued A for collection, and C was treated as a HDC.

What are the advantages of being a HDC? 1. He is not subject to personal defenses, EXCEPT Forgery, EXCEPT EXCEPT The maker can still be liable if the forgery is ratified or due to estoppel. 2. Prior parties are liable to him 3. Subsequent transferees acquire the rights of a HDC NOTE: While a person does not qualify as a HDC but derives his right from a HDC, then he will have the same rights as the HDC. Example: Client issued a check to his lawyer. Lawyer indorsed it to the store owner in payment of his overdue account. The store owner is thus a HDC. If the store owner indorses it to a prostitute, the latter is not a HDC but acquires the rights of the store owner who is a HDC.

Example: If a PN shows that it is payable today and it is negotiated to you today, you are a HDC because the date of payment, which is today, has not yet passed. Example: If a check is dated 25 December 2012, but it is negotiated to you only today, 3 February 2013, you are still a HDC. CHECKS NEVER BECOME OVERDUE AS THEY ARE ALWAYS PAYABLE ON DEMAND. But under jurisprudence, the demand for payment must be made within a reasonable period determined on a case-to-case basis, eg six months.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Who are the PARTIES IN A NI A person is liable on an instrument only if his/her signature appears on it (maker, drawer, acceptor, general indorser, irregular indorser, forger). Irregular indorser: Person is not a party to the instrument but indorses the instrument

NOTE: Holder goes to the drawee, bringing the bill of exchange. There must be presentment of instrument for acceptance. When drawee refuses to return or destroys the bill of exchange when presented for acceptance, it is deemed accepted. If the bill is dishonored, the holder should give notice of dishonor to all prior parties within a reasonable period. A party not notified shall be discharged.

Per Procuration: Signing authority but with limitation. Exceptions: a. Person negotiating by mere delivery The person who negotiated by mere delivery is liable to the person to whom he negotiated the instrument (the immediate transferee) b. Person who was duly represented by his/her agent, subject to two conditions: that the agent discloses his principal and the agent acts within his authority. What are the OBLIGATIONS OF THE PARTIES IN A NI 1. MAKER: To pay and to warrant the existence and capacity of the payee because he borrowed from the payee himself 2. DRAWER: To warrant the existence and capacity of the payee; that upon presentment, the drawee shall honor the check; if it is dishonored, then he will pay after notice What are the STAGES OF LIFE OF A PN 1. Making 2. Negotiation 3. Payment Q: In case of promissory notes, do they need to be presented for acceptance? A: No, they are presented for payment. What are the STAGES OF LIFE OF B/E 1. Drawing/Issue 2. Presentment for Acceptance By the Drawee Two possibilities: - Drawee accepts - Drawee dishonors the check by non-acceptance. REMEMBER: The drawee is not an original party and only becomes a party as an acceptor upon his acceptance. And in case he accepts, he is bound only by the terms of his acceptance, and not by the terms of the b/e.

3. 4.

Negotiation Presentment for Payment Why: Presentment of acceptance is not an assurance of payment. Thus, there are also two possibilities here. - Payment by the drawee - Dishonor by non-payment

5.

Payment/Discharge

How is PAYMENT OR DISCHARGE EFFECTED? 1. Payment in due course by the person primarily liable, to the person entitled to receive the payment, at the place agreed upon What is PAYMENT IN DUE COURSE When it is made at or after the maturity date. If payment is made before the maturity date, then there is no discharge yet because the payor can still further negotiate the instrument. But in practice, a fresh PN is requested after payment is already made. Who is the person primarily liable: For PN, maker. For B/E, acceptor. The accommodated party is also primarily liable. Who is an ACCOMMODATION PARTY He who signs the instrument as a maker, drawer, acceptor, or endorser but without receiving anything of value therefor and only for the purpose of lending his name. He is liable under the instrument even if the payee knows that he is signing only as an accommodation party. NOTE: For one to be an accommodation party, he must have CLEAR INTENTION TO SIGN AND TO BE BOUND AS AN ACCOMMODATION PARTY. Who is the ACCOMMODATED PARTY

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Person in whose favor it is signed. What if the accommodation party pays the instrument? It is not yet discharged because he can still run after the accommodated party. 2.

Intentional cancellation of the instrument by the holder Effect: The obligation is NOT extinguished. Condonation of a debt requires the acceptance of the debtor.

3.

Any other mode of existing an obligation to pay a sum of money Example: Compensation; Confusion of the rights of the debtor and creditor

4.

Discharge of the primary party

What are BILLS IN SET They are usually used in importation to facilitate payment of obligations between persons in distant places. How do they work The drawer prepares the B/E in two copies, the original and the duplicate indicated as such. He makes an instruction as follows: Pay this bill (Bill 1) if the other bill (Bill 2) is not paid. The contents are the same. The payee then presents both bills to the drawee. If the payee negotiates both bills to different persons with different interests, the drawer is liable only to the one whose bill is first accepted by the drawee. The remedy of the other holder is against the payee.

Q: How may a party secondarily liable be relieved from liability? a. Payment in due course by the person primarily liable b. By discharge of a prior party c. By striking out indorsement (this relieves not only the person whose name was stricken out but all those after him/her) d. Valid tender of payment by a prior party.

What are CERTIFIED CHECKS These are checks certified by banks to be credit-worthy, where the debtor is certified as having enough money for the same. It is no longer used today because of the inconvenience to the banks.

How to Discharge of Foreign Bills of Exchange

Now, banks issues manager’s checks. The advantages are its convenience and the fact that the obligation of the bank to pay is not affected by any garnishment of the drawer’s account. Its disadvantage is the effect of the bank’s insolvency, making the holder an unsecured creditor of the bank.

 

A domestic bill of exchange is also called an inland bill of exchange. A bill of exchange is foreign when the parties are in different countries. If a foreign bill of exchange is dishonored you make a protest.

Q: Who makes a protest? A: It is made either by a notary public or a reputable member of the community in the presence of 2 or more persons.

Certified Check It is an ordinary check that has already been accepted by a bank with money set aside for it. Eventually, banks stopped the practice of certifying checks and just issued manager’s checks. The managers check is disadvantageous because in case of insolvency of the bank, the holder is considered an unsecured creditor. Bills in Set A bill of exchange prepared with more than one copy. It facilitates payment between persons on distant places. When one bill is lost, the other bills may take its place. 24-Hour Clearing Process

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

A clearinghouse is a facility of the BSP for the convenient collection of checks drawn on different banks but deposited in another bank. At an agreed time, representatives of banks convene in a particular place in order to swap checks. The banks process the checks. Within 24 hours from receipt, the drawee bank must return these checks to clearing house if it intends to dishonor them. A BSP Circular provides that when a check is received from the clearinghouse and the check should be returned due to insufficiency of funds, the banks should dishonor the checks. This is the reason why overdrafts no longer occur.

What is the TWENTY-FOUR HOUR CLEARING RULE Within 24h from receiving checks from the clearing house, a bank must return the checks un-cleared. Otherwise, they would be cleared. When are checks not cleared: DAIF: Drawn against insufficient funds. DAUD: Drawn against uncollected deposits. Are banks required to accept any check NO. There is a MB Rule that banks should not accept checks presented for deposit or encashment by anyone other than the payee.

SUPREME COURT RULINGS ON FORGERY 1. As a general rule, the bank suffers the loss ultimately if what is forged is the drawer’s signature, and the check is presented for over-thecounter encashment or deposit with the drawee or collecting bank who pays. EXCEPTIONS: The drawer is made solely or solidarily liable in some cases. Why is the bank ultimately liable: - The bank ought to know the genuine signature of its depositors and - There is breach of contract by the bank, ie the specimen signature card, where it undertook to pay only on the basis of any of the signatures therein.

2.

If what is forged is the payee’s signature:

a.

b.

Drawee ultimately suffers the loss if the check is presented for over-the-counter encashment because it failed to properly identify the payee and thus the drawee bank paid the wrong person due to negligence. Collecting bank ultimately suffers the loss if the check (of another bank) is presented for deposit because of its failure to properly identify the payee and because of its breach of warranty, that “All prior endorsers guaranteed”, before it presented the check in the clearing house. What is a CLEARING HOUSE It is a facility of the BSP for convenient collection by banks of the checks drawn on other banks but deposited with them.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

CORPORATION LAW What is a CORPORATION A corporation is an artificial being, created by operation of law, having the right of succession and the powers and attributes which are expressly conferred by law or incidental to its existence. It is a juridical person. Two Kinds of Persons 1. Natural 2. Juridical – artificial beings that include the State, political subdivisions, partnerships and corporations PARTNERSHIP

CORPORATION Manner of Creation GR: By mere agreement of the parties. Need - By law not be in writing - By operation of law E: - Pship Agreement must be in writing IF the capital contribution exceeds P3000 - Pship Agreement must be in a public instrument IF real property is contributed regardless of amount. OTHERWISE, the pship agreement is void - A limited partnership is also not created by mere agreement of the parties

Re: GOCCs - GR: Created by law - E: GOCCs created under the Corporation Code (PNCC, CDCP)

Re: Private Corporations - GR: Created by operation of law - E: PNB, a private corporation but which was created by law because it was previously a GOCC but has been privatized Name Used Any name as long as it is not similar or Corporation must always include the words confusingly similar to the name of another “Corporation” or “Incorporated” (NOT existing partnership or corporation “Incorporation”) as part of its corporate name, whether fully spelled out or abbreviated. Notes: - “Corp.” or “Inc.” need not be at the end, eg Construction and Development Corporation of the Philippines, Private Development Corporation of the Philippines - “and Company, Inc.” is a corporation - Use in Similar or Confusingly Similar Products: case of Phillips, an international corp. whose products include electronics. In Ph, “Phillips” was used as a corporate name for conveyor belts. THUS, the foreign corporation sued the domestic Phillips. SC upheld the foreign corp. even when it has no exclusive right over the surname of “Phillips”. - Same Line of Business” Case of Sinclair where there were two corporations: First was the “Refractories Corporation of the Philippines”, and then there was Sinclair that changed its name to “Industrial Refractories Corporation of the Ph”. SC upheld the former’s suit against the

latter’s use of the name because they are confusingly similar: a) “industrial” is only a descriptive word, NOT a proper name, and b) they are in the same industry Purpose Always for profit. It is found in the definition of May or may not be for profit partnership itself. Example of Non-Profit Corporations: - Non-stock corporations - Educational corporations because they perform governmental functions - Corporate Sole because they are for religious purposes - Eleemosynary corporations which are for charity, eg Caritas Manila, Inc., ABS-CBN Foundation, Inc., Bantay-Bata, Inc. Number of Organizers Minimum of 2. GR: Min. 5, Max. 15 No maximum. E: 1 Person only for Corporate Sole, who is the head of the religious sect or denomination Term of Existence Partners may agree on any term Cannot be for a term longer than 50 years Extent of Liability General partners are obliged to pay the GR: Subscriber who is fully paid on his obligations of the partnership even if they are subscription cannot be obliged to contribute fully paid on their subscription more. Shareholder may not be obliged to contribute more than his current participation. E: Corporate veil is pierced Sharing of Profits Shared according to the agreement of the Dividends are distributed pro-rata to the parties stockholders Management Managed by all partners. Managed by a Board of Directors or Trustees Decisions are made by the partner/s having except for corporations sole or close controlling interests corporations. Decisions are made by a majority of the board, in a meeting with quorum, with every director having only one vote regardless of shareholding Causes of Dissolution At will of any one of the partners Cannot be dissolved at will. 1) Board Resolution (THUS at least two persons) 2) Ratification by 2/3 of the outstanding shares Amount of Capitalization No minimum amount P5000 minimum paid-up capital Right of Succession Does not exist in partnership Expressly given to corporations Nature Both a person and a contract Only a person, not a contract Relationship to Property Partners may validly claim they are co-owners Shareholders can’t claim to be co-owners of of properties in the name of the partnership corporate property

Who may organize a corporation?

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Organizers of a corporation are merely organizers; they become incorporators only upon signing of the Articles of Incorporation (AOI). Who is an incorporator? The signatories to the documents of incorporation. When a person signs the articles of incorporation, he automatically becomes a corporator. These incorporators are not changed. Notes: - Incorporators are also corporators. If an incorporator leaves the corporation, he ceases to be a corporator (in case of divestment of shares) BUT remains to be an incorporator. Once you are an incorporator, you are always an incorporator. - The terms “incorporator” and “corporator” are applicable to both stock and non-stock corporations. - In a stock corporation, they are called STOCKHOLDER or SHAREHOLDER - In a non-stock corporation, they are called MEMBER. Who may be an incorporator? 1. ONLY NATURAL PERSONS - Why: A juridical person cannot sign the AOI - AS OPPOSED TO A CORPORATOR, who can be a juridical person because he does not sign the AOI. 2. OF LEGAL AGE 3. WITH CAPACITY TO ENTER INTO A CONTRACT 4. MAJORITY MUST HAVE RESIDENCE IN THE PHILIPPINES; * They are not necessarily required to be CITIZENS UNLESS a special law requires a bigger participation of Filipino citizens What is a STOCK CORPORATION There are two qualifications 1. It has authorized capital stock divided into shares. 2. It is authorized to declare dividends from its surplus profits. What is a NON-STOCK CORPORATION A corporation that does not meet the two reqts., as when it has ACS but its AOI prohibits the declaration of dividends.

How to form a corporation (non/stock): File the AOI and other documents required with SEC. (This can now be done online) PRACTICAL MATTER: Don’t make the documents of incorporation first. 1. Check first the availability of the corporate name. Check the telephone directory for similarity in name. If none exists, reserve the name with the SEC (30d for P40, 60d for P80) where the proposed name is pre-approved by SEC. SEC issues a Name Verification Slip. Never lose it! Payment of the reservation fee is stamped thereon. 2. Accomplish the AOI (in letter size). The forms are available in SEC. 3. Submit the Treasurer’s Affidavit. It is not required that there be authority to inspect the deposit and back certificate of deposit. 4. Include an Undertaking to Change the Corporate Name because words can be spelled differently, and thus it must first be determined whether there would be a similarity or confusing similarity with existing names. 5. Registration Date Sheet – form is available Documents to be submitted to SEC: 1.) Name verification slip 2.) AOI 3.) Treasurer’s Affidavit 4.) Undertaking to change corporate name 5.) Registration Data Sheet 6.) By-laws (Optional, may be done at a later date) What are the other requirements for Non-Stock Corporations 6. Modus Operandi, a short write-up on how it would be operating What is the ARTICLES OF INCORPORATION  “Article” means stipulation  It s a written agreement among the corporation’s organizers  It contains all the information required by law  It is the prescribed document to be filed with the SEC for the purpose of incorporation

FORMATION OF A CORPORATION

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

What are the CONTENTS OF THE AOI *Arts. 1-6 are the common provisions for non/stock

-

-



ARTICLE 1: CORPORATE NAME o Name must have “Corporation” or “Incorporated”, either fully spelled out or abbreviated o It must not be misleading or misdescriptive of the business of the corp. o Only corporations under the supervision of the Monetary Board may add “Bank” or “Banking” in its name o Only corporations under the supervision of the Insurance Commissioner may use “Insurance” in its corporate name o Under the SEC Rules, the following words cannot be used as the first word of a corporate name: Philippine, National, Republic, State. Their exclusive use as such is reserved to the Ph Gov’t. o It must not be similar or confusingly similar to the name of an existing corporation or partnership ARTICLE 2 – PURPOSES o A corporation must have only one primary purpose. The primary purpose cannot be stated briefly. o A corporation may have many secondary purposes, as long as they are not incompatible with the primary purpose or with one another Incompatible purpose – if banking is primary purpose, it cannot be engaged in the business of insurance as an insurer, BUT it can sell insurance policies as bank assurances. ARTICLE 3 – TERM OF CORPORATION o The maximum term of a corporation is 50 years. o The term is extendible before its expiration. A filing fee is due, in the same amount as a formation of a new corporation which is based on the ACS. o There is no limit as to the number of extensions.

 GR:

Term cannot be extended earlier than 5 years before it expires.  E: Extended earlier for justifiable reasons. eg Corp. obtains a longterm loan of 10 years, but the term of the corp. expires in 7y. Thus, it is allowed to extend 7 years before the expiration. o The term may be shortened for the purpose of dissolution, BUT it requires prior BIR clearance.



o Before, SEC allowed corps. to state only the city or municipality where the corp. would be set up o Now, the exact address of the corp. should be stated and detailed. 

ARTICLE 5 – FULL NAME, NATIONALITY, AND COMPLETE ADDRESS OF THE INCORPORATORS o FULL NAME OF INCORPORATORS: They must be 5-15 persons for both non/stock corps. o ADDRESS: Residential or Office, NOT PO Box Q: What if 16 persons want to incorporate? Fifteen sign as incorporators and one signs as a witness.



ARTICLE 6 has two parts: a) Number of Directors, and b) Full Names, Nationality, and Address of the Incorporating Directors o NUMBER OF DIRECTORS  Stock: 5-15 Members  Non-Stock: At least 5 *The number can be even or odd. In practice, the number is often odd but it is not a guarantee against deadlocks. o INCORPORATING DIRECTORS  Stock, they should have subscribed to one share.  Non-stock, they must be a member. STOCK CORPORATIONS:



ARTICLE 7 has two parts as well: a) AMOUNT OF ACS, NUMBER OF SHARES, AND VALUE ASSIGNED TO EACH SHARE, and b) FULL NAME OF THE SUBSCRIBERS, NATIONALITY, NUMBER OF SHARES SUBSCRIBED, AND VALUE OF EVERY SUBSCRIPTION. o AMOUNT OF ACS, NUMBER OF SHARES, AND VALUE ASSIGNED TO EACH SHARE o AUTHORIZED CAPITAL STOCK, or the maximum amount that can be capitalized, is always expressed in pesos. eg ACS is P1M, divided into 1M shares, each share having a value of P1 o There is no minimum paid-up capital. o What are SHARES: Units of participation, representing the breakdown of the ACS to determine the extent of the contribution o What is PAR VALUE: Value assigned to every share. eg P10M ACS to 1M shares THUS P10 par value

ARTICLE 4 – PRINCIPAL PLACE OF BUSINESS OR RESIDENCE

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

o What is the MINIMUM PAR VALUE: 1 centavo, because it is the least denomination of Ph currency o Is there a MINIMUM PAID UP CAPITAL: Unless laws or regulations require a minimum amount of paid-up capital, incorporators can agree on any amount o What is a STOCK SPLIT: When par value is divided into two shares with lower par value



ARTICLE 8 - NAMES OF SUBSCRIBERS AND AMOUNT INDIVIDUALLY PAID ON THEIR SUBSCRIPTION o Total amount individually paid on the subscription must be at least 25% of the total amount subscribed. o It is not required that every subscriber pay at least 25%



ARTICLE 9 – NAME OF TREASURER



ARTICLE 10 - PROVISION APPLICABLE TO CORPORATIONS WHOSE BUSINESS IS RESERVED FOR FILIPINOS BY LAW

 eg Original par value of SMC shares was P10 each.

In the 1980s, the par value of P10 was split into P5 each. It has no effect on the investor because he has the same amount of shares.

 Rationale: In the stock market, you buy shares by lots (ODD LOT if you buy less than a lot) for a minimum price. By splitting the shares into shares with smaller values, then small investors are accommodated by splitting the shares into more affordable shares. eg Lot of 1000 shares would have a lesser price. o What is a REVERSE STOCK SPLIT: Ayala Corp., the oldest Ph corporation aside from UST, has an original par value of P1. Subsequently, they combined 50 shares into 1 share. It also has no effect on the holdings because the value of the shares is the same. Its purpose is only for convenience. o Is subscription required in ACS: Yes, At least 25% of the ACS must be subscribed and 25% of such subscription must be paid-up NOTE: Shares may have NO-PAR VALUE – they are issued for value of at least P5. All subscriptions to no-par value shares must always be paid in full. Payment for no-par value shares is always capital contribution; it cannot be used for the payment of dividends. Certain corporations can’t issue no-par value shares. Examples are banks, insurance companies, trust companies, public utilities, building and loan associations. o FULL NAME OF THE SUBSCRIBERS, NATIONALITY, NUMBER OF SHARES SUBSCRIBED, AND VALUE OF EVERY SUBSCRIPTION o VALUE OF EVERY SUBSCRIPTION: Total of all subscription must be 25% of the ACS. o SUBSCRIBERS.  It includes the non-incorporators

 It is not limited to natural persons.

Thus, they may be partnerships or corporations, e.g. subsidiary and sister companies  There is no limit as to the number of subscribers



NON-STOCK CORPORATIONS ARTICLE 7 – NAMES OF CONTRIBUTORS OR DONORS AND AMOUNT INDIVIDUALLY CONTRIBUTED TO THE CORP. o In non-stock corporations, amount given is not paid-up but contributions or donations. o The contributors or donors must receive nothing in exchange of their contributions

What about the By-Laws? By-laws may be filed with AOI, if not so filed it must be filed within 30 days from issuance of certificate of registration. If the by-laws are filed with the AOI, it must be signed by all incorporators. If filed later, it need only be signed by a majority of the incorporators. What happens after the filing of the documents  Documents are filed with SEC  Application is assigned to an examiner



SEC issues a CERTIFICATE OF REGISTRATION, which is akin to a natural person’s birth certificate.



It is upon such issuance that a corporation acquires juridical personality and becomes a person. Corporation can now enter into contracts, acquire property, sue and be sued. BUT the effectivity retroacts to the date of filing. eg Docs are filed on 1 Feb. The order to issue a certificate of reg. was made on 13 Feb but the Cert. of Reg. was only received subsequently. When does the corp. acquire juridical personality? On 1 Feb. or on the filing of documents, in practice, and NOT the actual preparation of the cert.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

IMPLICATION OF ACQUISITION OF JURIDICAL PERSONALITY Re: PROPERTIES • The properties of the corporation belong to the corporation. • The SHs cannot claim that they are part-owners, as opposed to a partnership where the partners are co-owners of the properties of the pship. Re: LIABILITIES • The corporation can borrow money and incur other liabilities. What if the corporation becomes bankrupt? Can the creditors sue the stockholders? GR: No, the corporation has a distinct personality from the SHs and its liabilities are not the liabilities of its SHs. BUT, the stockholder who did not fully pay his subscription can be obliged to remit his subscription payment because unpaid subscription are assets of the corporation and booked as receivables. E: Sue the SHs by PIERCING THE VEIL OF CORPORATE ENTITY, where the obligations of the corporation are enforced against the director, officer, or stockholder. Under this doctrine, the separate personality of the corp. is disregarded and its liabilities are made that of the officer, director, or SH. It has no basis in law but in jurisprudence.

•

For Rule 2, there must be evidence that the decisions were made by the controlling SH alone. What is the INSTRUMENTALITY RULE (Rule 4) eg. Case of Concept Builders, Inc. A manufacturing corporation (principal) was organized for the production of pipes. It organized a subsidiary, CBI, for a construction business. The principal then incurred liabilities to its laborers, who sued the principal and obtained a favorable decision. The principal corporation had no properties and thus the laborers levied on the properties of CBI. According to the SC, CBI is only a subsidiary of the judgment debtor. The fact alone that the principal and subsidiary’s BOD comprise of the same persons does not justify the piercing of corp. entity. The fact alone that all but one of the officers of both is the same does not justify the piercing of corp. entity. The fact alone that both share the same office does not justify the piercing of corp. entity. BUT when these circumstances are taken together, then it appears that CBI is a mere instrumentality of the principal as it has no mind of its own. Piercing must be the last resort and only when there is clear and convincing evidence.

What are the rules regarding the doctrine of piercing the corp. veil 1. Mere ownership of the controlling interest of a stockholder does not necessarily oblige him to pay the debts of the insolvent corp. 2. The separate personality of the corporation may be disregarded if there is clear and convincing evidence that the corp. is only an alter ego of the controlling stockholder. 3. The separate personality of the corporation may be disregarded if there is clear and convincing evidence that the corporation was purposely organized for fraud or tax evasion or to defeat public convenience. 4. The separate personality of the corporation may be disregarded if there is clear and convincing evidence that of two corporations, one is a mere instrumentality of the other. How to reconcile numbers 1 and 2: Evidence required for either is different!

•

For Rule 1, there must be evidence that the controlling SH did not decide alone, but the decision must have been that of the BOD.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

CORPORATION BY-LAWS What are the BY-LAWS These are the set of house rules and regulations.

• •

When may the By-Laws be filed

•

It can be filed with the AOI and other incorporation documents, in which case, it must be signed by all of the incorporators

•

If it is not filed with the AOI, then if must be filed within one month from the issuance of the Cert. of Reg., and in which case, it may be signed by at least the majority of the incorporators

What doe the By-laws contain 1. Meetings of stockholders or members 2. Directors 3. Officers 4. Stock Certificates for stock corporations 5. Corporate seal 6. Amendments of the AOI and BLs *You can add others but these six are mandatory! 1.

MEETINGS a. ANNUAL OR REGULAR MEETINGS

•

•

•

•

•

•

State the day of the meeting; it is usually scheduled after the audited financial statements are prepared, and it is usually after April 15 or the third Tuesday of April because a specific date may fall on a weekend that is not favorable for attendance. NOTICE is no longer needed as it is already provided in the BL, BUT notice is still sent in practice. AGENDA: The annual meeting is the most important as it is for the purpose of the election of directors for the following year. b. SPECIAL MEETINGS These are called by the president. MANDATORY: WRITTEN NOTICE of the Date and Matters to be taken up BECAUSE the SHs are not aware of the same. Law requires a call. There must be a written notice at least 10 days before the scheduled meeting. Importance of Notice on Agenda: No other matter can be taken up without the consent of all present c.

VENUE OF MEETINGS

•

Meetings are held in the principal office or, if it is not big enough, then elsewhere in the city or municipality of the principal office eg Manila Bulletin holds its meetings in the grand ballroom of the Manila Hotel. Most publicly-listed corporations have many SHs. d. ATTENDANCE How: o In person o By proxy. PROXY has two meanings, referring to both the written authority (which need not be embodied in a SPA) and the representative person. It is a contract of agency, THUS, the proxy must have the capacity to enter into a contract of agency.

Practical Note: Bring the proxy (written authority) with him. Go to the corp. and present the written authority to the corp. secretary before the meeting. The corsec will compare the signature thereon with the signature of the SH in the corp.’s specimen card to verify its genuineness. Are proxies revocable? YES, proxies may be revoked, expressly or impliedly, at ANYTIME, UNLESS the proxy is issued pursuant to a contract (eg Loan secured by shares) EXPRESS REVOCATION: When the SH himself attends the meeting after informing the proxy. IMPLIED REVOCATION: When the SH, without telling the proxy, attends the meeting himself What is the TERM OF PROXY: - Proxies are valid just for one meeting, as stated in the proxy itself. - If proxies are issued for a PERIOD, the period must not exceed five years, renewable upon expiration for another five years.

•

STOCK CORPORATIONS, How Many Constitutes a Quorum: SHs representing the majority of the outstanding shares of stock. o Importance: In every meeting there must be a quorum at the start of the meeting. If there is no quorum at the start of the meeting, it must adjourn. If stockholders or members leave in the middle, there is no problem as quorum is reckoned at the start of the meeting.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

o

o o o

What is QUORUM: Presence of stockholders in person or by proxy representing the majority of the outstanding shares. In a stock corp., it is the majority of the outstanding shares that matter.  Quorum is determined at the start of the meeting. What are the OUTSTANDING SHARES OF STOCK: All shares issued by the corporation, excluding treasury shares. What are TREASURY SHARES: Shares already issued but later reacquired by the corp. in its own name. What is the difference between SUBSCRIBED, ISSUED, and OUTSTANDING: eg Corp. has P1M ACS. Shares subscribed are 250k. The subscribed shares of 250k are considered as ISSUED upon subscription, and, they are considered as OUTSTANDING once issued as they are already out of the corp.

o

o •

NON-STOCK CORPORATIONS, How Many Constitutes a Quorum: Presence in person or by proxy of at least a majority of the number of members o What is the difference in quorum between a stock and non-stock corp.? As a general rule, it is the majority of members. BUT, consider the number of members that would be added in the future. For practical purposes, define the quorum in the by-laws. It can be “majority of the members” or just “twenty members” or “any number of members present”. o What is the difference between proxy in a stock and non-stock corp.? In a non-stock corp., proxies are allowed UNLESS the by-laws do not allow the same.

•

What are VOTING STOCK AGREEMENTS: In stock corporations, a Voting Trust Agreement may be entered into. In a VTA, the stockholder entrusts his votes to a voting trustee. The term is for a maximum of 5 years.

Subscribed Issued  Outstanding

o

o

o

o o

What if the same corp. from the previous example needs to raise additional capital? It issues 300k new shares from its P1M ACS. The total shares subscribed and fully paid is now 550k (250k earlier subscribed + 300 newly subscribed). What if the BOD of the same corp. decides to issue stock dividends of 20%? What would be the basis of the 20%? The corp. would issue 20% of 550k (or 110 shares) because dividends are distributed pro rata, according to participation. Upon distribution of the stock dividends, how many would be the subscribed shares? The subscribed shares would still be 550k. The 110 shares distributed as stock dividends are not “subscribed” because they are not paid for. Stock dividends are not subscribed they are merely issued. How many shares are issued and outstanding? There would be 660 issued and outstanding shares. The stock dividends are included in the issued shares. How many shares are unissued? Out of the OCS of 660 shares, there would be 340 unissued shares.

What if 20k treasury shares are returned to the corp., how many OCS are there? It would be 640k (660k less 20k treasury shares). BUT in terms of the number of subscribed shares, there would be no difference because once shares are subscribed, they remain as subscribed. Treasury shares are already subscribed or issued, and thus they do not revert back to being unissued or unsubscribed shares. What is then the quorum? 320+1 (Half of 640 + 1)

Proxy 1. Available in both stock and non-stock corporations. 2. Private instrument is sufficient

3.

Filed with Corporate Secretary

4.

the

No delivery of stock certificate to the proxy

Voting Trust Agreement

1.

Available stock corporations

only

in

2.

It must be in a public instrument

3.

Filed also with the SEC 4. VTA entrusts stock certificates to trustee who in exchange delivers to the stockholder voting trust certificates

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

2.

DIRECTORS

Who can be a director? A director must have all the qualifications provided in law and by-laws and none of the disqualifications provided in the law and BLs.

What is the TERM OF DIRECTORS? It is as stated in the by-laws. If none is provided, then it is one year, UNLESS he is elected only to fill a vacancy in which case, he serves only for the unexpired term. What are the rules for EDUCATIONAL CORPORATIONS

What are the QUALIFICATIONS OF A DIRECTOR (CORP. CODE) 1. He must own at least one share (stock) or be a member (non-stock)

•

What is meant by ownership: Subscription is sufficient. He need not have paid for it yet, UNLESS the BLs require payment.

•

2.

What kind of share must he own? It can be a common or preferred share, BUT in practice, preferred shares are not allowed because such are deprived of the right to elect directors and be elected as directors. Bank directors must comply with the fit and proper rule, where special law may provide for other qualifications.

What are the DISQUALIFICATIONS OF A DIRECTOR 1. He must not have been sentenced to final judgment for a crime punishable by imprisonment exceeding six years. 2. He must not have committed a violation of the Corporation Code within five years prior to being elected as a director. 3. He must not be disqualified under the BLs. eg Case of Gokongwei v. San Miguel Corp. where Gokongwei sought to be elected as director BUT he was already the director of a competing company Do directors receive compensation?

• •

• • •

The number of directors must be in multiples of five. The term must expire one after the other. If the director whose term expires is reelected, his new term would be five years.

When are there VACANCIES IN THE BOARD Death, Resignation, Incapacity, or Removal How to FILL VACANCIES DUE TO DEATH, RESIGNATION, INCAPACITY: There are two ways. The expensive way is to call a special SHs meeting. The inexpensive way is for the directors themselves to fill the vacancy IF the remaining directors still constitute a quorum. When can there be REMOVAL OF A DIRECTOR?

•

GR: A director may be removed by the stockholders or members, with or without a valid reason.

•

E: A director representing the minority SHs may only be removed for a valid cause.

GR: Directors are not entitled to regular compensation

What is the nature of a director’s removal: Any act of removing a director is always an intra-corporate dispute.

E: They may receive regular compensation IF... o So provided in the by-laws or

Who is a director representing the minority SHs: Those voted by cumulative voting.

o

They pass a resolution giving themselves compensation and the same is ratified by at least 2/3 of the outstanding common shares.

•

Per diems: Law allows directors to receive reasonable per diems for attendance in meetings of the board. REASONABLENESS depends on the resources of the corporation.

•

Profit-sharing: Law allows directors to receive share in the net profits of the corp. but it must not exceed 10% of the net profits (of the previous year) prior to income tax.

What is CUMULATIVE VOTING

• •

It is available only in stock corporations

•

In stock corporations, one stock equals one vote. Said number of votes is multiplied by the number of directors to be elected. The product is the total number that a SH may vote. THUS, a SH can give all his votes in favor of a candidate. (Number of SS) (Number of Vacancies) = Total number of votes

Its purpose is to enable the minority SHs to have representation in the BOD

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

•

In non-stock corporations, one membership equals one vote. Said number is multiplied by the number of votes to be elected. The product is the total number that a member may vote.

capacity. Directors shall serve as such until their successors shall have been elected and qualified.

What is the FUNCTIONS OF THE BOD: BOD sets the policies of the corporation, which is implemented by the officers. When do they meet: It depends on the BLs. In practice, most corps. meet monthly (according to the Corporation Code). There are some corps. whose investments are considered passive, and thus, the BOD does not have to meet frequently. What is the quorum: Quorum of BOD is the presence of the majority of the number of directors without counting their stockholding, ie. Count per head. Can there be proxies in board meetings: The law does not provide it, BUT done in practice. When is quorum determined: At the start of the meeting. How does the board decide: They pass a resolution, which requires the majority vote of the directors present. Who is a SELF-DEALING DIRECTOR: A director who enters into contracts with the corporation where he is a director. Is it allowed: YES as long as it is done under the following conditions: 1. His proposal was approved in a meeting of the board where there was a quorum without counting his presence. 2. The proposal was approved by a majority of the quorum without counting his vote. 3. The terms and conditions must be fair and reasonable. Why the requirements? A director must not take advantage of whatever information he may have acquired as a director. Who are INTERLOCKING DIRECTORS: When two or more corporations share a common director. There is nothing wrong with it. If no one attends the annual meeting of the SHs (to vote for the BOD), who manages the corporation? The BOD manages the corp. in a hold-over

3.

OFFICERS

Who are the OFFICERS OF A CORPORATION: President, Treasurer, Secretary, and Officers mentioned in the by-laws or created by the BOD. Who can be President

  

He must be one of the directors These are not required in others He must be a stockholder He cannot be the treasurer or secretary at the same time

Who can be Treasurer: No requirements. Need not be a director Who can be Secretary: Must be a citizen and resident, but need not be a director. He takes minutes of the meetings Can a person hold two or more offices: YES, as long as the offices are compatible. Who are INCOMPATIBLE OFFICERS: Treasurer cannot be the auditor. The chief accountant cannot be the auditor. Who is a STOCK TRANSFER AGENT: It is another corp. that records the stock transactions of another corporation. What is the TERM OF OFFICE OF THE OFFICERS  As stated in the by-laws  If none, it is co-terminous with the BOD that filled it up  At the pleasure of the BOD (as long as you are useful) What is the COMPENSATION OF THE OFFICERS: Officers are entitled to regular compensation as determined by the BOD. Though directors as such are not entitled to compensation, they are entitled to compensation as officers if they are also officers.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Where can one contest the REMOVAL OF AN OFFICER: A contest against the validity of removal by the director or officer is an intra-corporate dispute, that must be filed with the RTC of the principal office. Can an officer enter into a contract with the corporation? YES, but he must follow the same conditions as contracts between the director and corp.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

4.

STOCK CERTIFICATES

What is the IMPORTANCE OF STOCK CERTIFICATES: Once it is issued, it is the best proof of full payment of one’s subscription to the capital stock of the corp. When is it issued: Upon full payment of the subscription. Note: A subscription contract is an indivisible contract. Thus, partial payment is partial payment for all shares, and not full payment as to some, and no payment as to the rest. Who signs the stock certificates:

 

The secretary, who is in charge of the Stock Transfer Book President or anyone authorized by the BOD or BL *Stock certs. are not individually signed for publicly-listed corps.

What is the REMEDY FOR LOSS OF STOCK CERT. a. File an AFFIDAVIT OF LOSS with the corp. sec. b. Cause the publication of NOTICE OF LOSS once a week for three weeks in a np of general circulation c. Wait one year from last publication d. File a BOND for the value of the shares if you want to claim it earlier than one year, for such amount and in such form satisfactory to the BOD How to TRANSFER SHARES OF SHs 1. Publicly-listed corporations: Transferor must indorse the stock certificate 2. Not Publicly-listed corporations: Deed of Sale via stock brokers a. OVER-THE-COUNTER TRANSACTIONS: Those between the parties themselves and involving shares listed in a stock exchange.

5.

CORPORATE SEAL – Its design, size, shape and configuration are left with the BOD.

Q: What is the use of a corporate seal? A: It is practically a paperweight, but real use is in making stock certificates.

6.

AMENDMENTS OF AOI AND BL

What rules govern amendments: a) As provided in the by-laws, b) If none is provided, then as provided by law. What are the requirements for amending AOI under the law  Board resolution



Ratification by 2/3 of all outstanding shares, common and preferred, or members

What are the requirements for amending BL under the law  Board resolution



Vote of the majority of OCS, common and preferred, or members

How are AMENDMENTS MADE:

 



Copy the AOI or BL verbatim, underscore the amendments, and then put in parentheses, the words “as amended”. The paper is letter size. When filed, has to be accompanied by directors’ certificate. This authenticates the amendment. SEC then reviews the amended AOI or BL, and after approval, the SEC issues a certificate of filing of amended BL or AOI.

What is a STOCK AND TRANSFER BOOK OF STOCK CERTIFICATE: It is a register where stock ownership is recorded. Corp. should register its stock and transfer book within thirty days from issuance of certificate of registration. There is a penalty for failure to register. NOTE: Shares are personal property and thus, they may be mortgaged or pledged.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

CORPORATE SHARES What are PREFERRED SHARES: Shares which enjoy priority or preference over common stocks eg Preference in the distribution of dividends or assets. (Preference in dividends normally includes preference in assets)

4. 5.

When new shares are issued to comply with the legal requirement that the corporation go public, eg. Commercial bank becoming a universal bank When the shares are issued pursuant to a stock option plan granted to officers and/or employees of the corp.

eg If a corporation is new, the shares are all common because the corporation has no history of profitability yet. Thus, when do corporations issue preferred shares? When it wants to raise money to finance expansion programs sourced from the public. What are PREFERRED REDEEMABLE SHARES: They are issued by the corporation but the latter reserved the right to reacquire the same within a certain period. What are PREFERRED REDEEMABLE CONVERTIBLE SHARES: They are preferred shares which are redeemable within a certain period. If the corporation does not redeem it, the stockholder may have his redeemable shares converted into common shares. What are PREEMPTIVE RIGHTS: Right of a stockholder to be given preference or priority to subscribe to new issues of shares of a corp. How it works: BOD sets aside part of the unissued shares for subscription by SHs and others, but the present SHs are preferred. Why grant preemptive rights: To enable present SHs to maintain the present ratio of their holdings in the corp. Are these rights personal: Yes, preemptive rights are personal property arising from stockholders, but they are not strictly personal. Are these rights waivable: YES. Are these rights transferable: YES, either onerously or gratuitously. Are these rights absolute: NO, because these are unavailable at some times: 1. When so provided by the AOI or BLs, eg. Filinvest 2. When new shares are issued to pay for property which the corporation needs and the owner wants to be paid in shares 3. When shares are for payment of previously contracted debts

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

o

DIVIDENDS What are DIVIDENDS: These are earnings of the corporation.

o

Who can DECLARE DIVIDENDS: Only the BOD and only when they are acting as such (and not as an executive committee), and only when there is surplus profits. When to declare dividends: Only when the corporation has surplus profits. NOTE: According to the SC, no court can order the corporation to declare dividends, which is an exercise of business judgment. No law requires the declaration of dividends BUT the corp. should not retain earnings in excess of 100% of its paid up capital. SURPLUS v. EXCESS: Surplus is what is outside the hand when it touches a boob. Excess is the other boob. What are RETAINED EARNINGS: Those not declared. What are RESTRICTED RETAINED EARNINGS: Part of the surplus profits that is set aside for a definite purpose.



What is required: Declaration by the BOD, with the date fixed for its distribution. Re: Treasury Shares: These are issued by the corp. but later on reacquired in its own name, as when its prices are down. It can be used as property dividends BUT it must be ratified by 2/3 of the outstanding common shares. It is not distributed as stock dividends because stock dividends are distributed from the unissued shares.

Stock Dividends – Distribution requires Declaration by the BOD and Ratification by 2/3 of the outstanding common stocks. Vote of the preferred shares are not included because they are not affected. *Why is ratification required: Common SHs will suffer a dilution of their investments.

What are WATERED STOCKS: These are shares of stock that are issued by the corporation, but for which shares, the corporation did not get the full fair value. What if there are unpaid creditors, who can they go after:

What are SURPLUS PROFITS: It is net profits after income tax, without any impairment or diminution of paid-up capital. What are PAID-UP or PAID-IN CAPITAL: Total amount paid by the subscribers on their subscriptions. It is impaired or diminished by losses. eg Paid-up capital is P500k. After 1y, there is a loss of P70k. Thus, the net of PU is P430k. The following year, there is a loss of P20k, bringing down the net of PU to P410k. The following year, there is net profit of P110k. The paid-up capital is decreased by P90k (total amount of losses) to restore it to the original amt of P500k using the profits. The surplus would then just be P20k. In what FORMS may dividends be declared



Cash Dividends – paid in cash in the form of checks. o What is required: Declaration by the BOD for payment or distribution, which also fixes the date of distribution



Property Dividends – paid by the properties of the corp., including the SS of another corp.

 

Recipient of the watered stocks Directors who did not object to the issuance of the watered stocks o Includes those who abstained o To validly object, the director must have filed a written objection with the corporate secretary

Appraisal Right What is an APPRAISAL RIGHT: It is a stockholder’s right to demand payment of the fair value of his shares under certain conditions: 1. There must be a board resolution authorizing:

a. b. c. d.

Amendments of the AOI/BL that limits or restricts the existing rights of a SH Investments of the corporate funds in another corporation Sales or dispositions of all or substantially all of the assets of a corp. Mergers or consolidations

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

2. 3.

4. 5.

The resolution must be ratified by the required number of votes, i.e. at least 2/3 of the shares The stockholder demanding payment shall have voted against the ratification a. He must be present in the meeting, in person or by proxy b. He must not have abstained He must demand payment within thirty days from ratification The corporation has sufficient surplus

What is the FAIR VALUE OF THE SHARES: It can either be the par value (which remains constant), or book value or market value (which fluctuates). (Charles: Average of market value and book value) What is the BOOK VALUE: Total Assets Less: Total Liabilities ----------------------------------------Net Worth ÷ Number of Shares -----------------------------------------Book Value How come there is need for surplus profits first o GR: Surplus profit is needed because if there is none yet payments are made, then it would be a violation of the TRUST FUND DOCTRINE. o What is the TRUST FUND DOCTRINE: All subscriptions, paid up and unpaid, constitute a trust fund for the benefit of the creditors of the corporation. This is because the stockholder promised to contribute resources, and which promise is legally enforceable against him as a “subscription receivable”. o eg. Corp. has P1000 worth of subscription. Such P1000 is the asset of the corp. as much as it is the liability of the SH. o E: There is no need for surplus profits if the corporation redeems redeemable preferred shares. o EE: Surplus profits is needed for redeemable shares if after the redemption, the corporation can no longer carry out its purpose if the shares are redeemed Who owns the shares after payment to the SH: The corporation, as treasury shares.

TREASURY SHARES When do shares become treasury shares:  When the corporation eliminates fractional shares in dividends, as when the shares have a value of less than one whole share  When the corporation bids for its own shares in delinquency sale Do treasury shares have rights: NO, treasury shares have no voting rights or right to receive dividends because the corporation itself cannot vote or receive dividends. What is the NATURE OF TREASURY SHARES: These are assets of the corporation. Is it good for a stockholder that a corporation has treasury shares: YES

DELINQUENCY SHARES When are shares delinquent: When the corporation calls for payment of the unpaid subscription and the SH fails to pay What are UNPAID SUBSCRIPTIONS: If the SH is unpaid on the entire amount of subscription. There cannot be an unpaid amount on the total number of shares BECAUSE subscriptions are indivisible. What is a CALL: Demand for payment What are the REMEDIES OF A CORP. AGAINST DELINQUENCY 1. Bring an action for specific performance to collect the unpaid amount (which is an intra-corporate dispute) 2. Sell the delinquent shares in a public auction (in a delinquency sale). This remedy is unique as the bid is only for the amount demanded by the corporation for the least number of shares the bidder is willing to receive for said amount a. eg Value of delinquency shares is P100k covering 100 shares. Bidder A bids P100k for 100 shares. Bidder B bids for P100k for 75 shares. Bidder C bids for P100k for 50 shares. Bidder C wins. The difference between the value of the 50 shares won by C and the value of the other 50 shares belongs to the delinquent subscriber.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

b.

What if there is no bidder: The corp. may bid if it has sufficient surplus.

NOTES: When there is a definite date, no demand needed for it to become delinquent. If down payment, balance is payable on call. Call is a demand, formal demand to pay balance under the Corporation Code. If not paid, becomes delinquent. Consequences of Delinquency 1.) Delinquent subscriber shall have no voting rights. 2.) Won’t receive cash dividends, they are applied to unpaid subscription. 3.) If property or stock dividend, they are withheld.

MERGERS AND CONSOLIDATION What are MERGERS: It is the union of two or more corporations where one survives and the other is dissolved. What are CONSOLIDATIONS: It is the union of two or more corporations where all corporations are dissolved and a new one is created.

-

are not subject to a gov’t regulator, then the articles are filed directly with SEC. The merger or consolidation becomes effective upon approval by SEC of the articles.

What is the CONTENT OF THE ARTICLES OF MERGER OR CONSOLIDATION 1. Name of the corporation 2. Purpose 3. Term – In mergers, there is no difference in term from that of the surviving corp. 4. Principal Office – It can be changed in mergers or consolidations 5. Incorporators – In mergers, they remain the same 6. Number of Directors 7. Authorized Capital Stock – In mergers, amount and number of shares may not be changed but the par value of the shares may be changed 8. Paid-up Capital – Not changed 9. Valuation of Shares – IMPT for purposes of exchange because the shares of the dissolved corp. would be exchanged for the shares of the surviving corp.

Why do corporations merge or consolidate: To meet the minimum paid-up capital requirement of the gov’t. regulator, eg banks and property insurers For better profits, especially in industries with limited markets For better business opportunities For better corporate image How do corporations merge or consolidate: Like courtship eg Law requires a minimum paid up capital of P5B (banks). Bank A only has P2B PU. Bank B only has P3B PU. Thus, Banks A and B can agree to merge or consolidate. Either one can conduct due diligence on each other to find out the worth of each other’s assets. BOD of each of the corps. will pass a resolution for merger. Each will present their respective resolutions to their respective SHs for ratification (2/3 OCS) - Articles of Merger or Articles of Consolidation are passed and submitted to the government regulator, eg Monetary Board or Insurance Commissioner, which reviews it to determine whether it is according to law. It then issues a formal indorsement. If the corps.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

DISSOLUTION OF CORPORATIONS What are the CAUSES OF DISSOLUTION 1. Expiration of the term 2. Cancellation of the Certificate of Registration of the Corporation by SEC for the following reasons a. Failure to file the by-laws within thirty days from the issuance of the cert. of reg. b. Failure to organize within two years from the issuance of the cert. of reg. c. Failure to carry out its primary purpose for at least five years d. Failure to comply with the reportorial requirements of SEC 3. Order of Dissolution by the court upon finding that it is insolvent or organized purposely to commit fraud

What are DIVIDENDS: These are fruits, but not natural, industrial, or civil fruits (under property) but classified as other fruits. NOTES: Liquidating dividend – to the extent of return of capital, no tax, but any increase is taxable. Under the ROC, two years to file claim against estate. In case of dissolved corporations, 3 years. Within this period corporate property is transferred to trustee.

NOTES: GIS is filed within 30 days from date of annual meeting. AFS within 30 days from filing with SEC. Show cause letter in certain cases Liabilities are paid from assets What happens upon dissolution: WINDING UP OR LIQUIDATION PROCESS How long is the winding up process: Only god knows How are the assets liquidated: The claims would be paid from the residual assets. How are RESIDUAL ASSETS DISTRIBUTED o Stock: Distribute first to the preferred SHs with preference as to assets. If the assets are insufficient, they are pro-rated among the preferred SHs, and then to the common SHs. o Foundation: Residual assets are normally escheated to the gov’t as a condition by the BIR for its tax exemption. o Non-Stock: Members share in the residual asset. What are LIQUIDATING DIVIDENDS: What the SHs receive as their share in the residual assets of the dissolving corporation. What is the INCOME OF THE CORP.: Excess of the return of capital, and not the mere return of capital.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

CORPORATION SOLE What is a CORPORATION SOLE: It is a corporation organized by one person, who is the head of a religious sect or denomination. eg Catholic Church, Iglesia ni Kristo, Lutherans, Mormons. El Shaddai is not a corporation sole because its preaching is the same as the Catholic Church. What is unique about it: There is no board of directors. THUS, to protect its members, any disposition or encumbrance of real property requires judicial approval.

EDUCATIONAL CORPORATIONS What are ECs: It could be a stock or non-stock corp. Before, under the Education Act of 1982, all must be organized as a non-stock corporation. But such requirement did not apply to previous corporations because of vested rights. Stock Educational Corporations: FEU; Ph Women’s University; CEU; University of Pangasinan; NU; MAPUA; Univ. of Manila Non-Stock ECs: Sectarian schools What is unique about it: The law provides that: - its BOD must be in multiples of five - the term of the directors is five years, BUT the term of the first batch is the agreed term that must be staggered and thus such terms expire one after another

CLOSE CORPORATIONS How do you know if a corporation is close: If the AOI provides that:  the number of shareholders should not exceed twenty, or

 

the shares should never be listed in any exchange, or in case any shareholder would transfer his shares, then he must first offer to transfer the same to the other shareholders under the same terms and conditions that he would offer to non-shareholders. The

offer must have a term (and not an open term), eg 30d only to acquire the shares of the SH. Where must these conditions appear to bind the transferees: The limit on the transferability of shares must appear in the AOI, the by-laws, and the stock certificate. If restriction on transferability does not appear in stock certificates but transferee was not informed of restriction, restriction does not apply to him. Who MANAGES A CLOSE CORPORATION:  BOD o If there is a deadlock, a Petition for Appointment of a Provisional Director must be filed in court. o Who is a PROVISIONAL DIRECTOR: He is appointed by the court to sit in the BOD of a close corporation to resolved a deadlock therein. The provisional director need not comply with the qualifications of the BOD. o Who may be appointed a provisional director: One who has absolutely no interest in the corp. He must not own a share and may not be a creditor. o What is the term of the provisional director: As long as he is needed  Directly by the SHs themselves o There is no need for an annual meeting because the most important agenda thereof is the election of the BOD anyway because none. OTHER NOTES Domestic Corporation – one organized on the Philippines regardless of nationality of organizers Foreign Corporation – one organized in another country, even if organized by Filipinos. Foreign Corporation may engage in business in the Philippines if it meets the following requirements: 1.) Register with the SEC as a foreign corporation – it must give certified true copies of all incorporation documents in country of origin. If not in English, with official translation in English. 2.) Inward remittance at the amount of prescribed capitalization. 3.) Appointment of a resident agent. In case of bidding, must already be registered as a foreign corporation.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

SECURITIES REGULATION CODE

What is a PROMISSORY NOTE: It is a form of securities (where the maker promises to pay back the amount borrowed), as when a corporation borrows money and promises to pay it back

What is the governing law: Securities Regulation Code What are securities: - These are promissory notes, bonds, and debentures - It involves money - They are broadly defined as instruments evidencing an investment in a commercial enterprise, ie stock corporations When are they used: When companies expand to address the higher demand of its operations, they raise money by securing funds by reclassifying the original or the organizer’s common shares as founder’s shares and issuing common shares for new investors (which requires SEC approval). Founders Shares: Exclusive right to be elected in the BOD for a maximum period of five years from approval. After said period, they become regular common shares and the AOI is amended. Q: What if a corporation needs more working capital and is to be sourced from the public: There are rules on the solicitation of investments PUBLIC: More than 19 persons, natural or juridical

What is a BOND: It is a promissory note with a term exceed five years, as when a corporation promises to pay on the PN at least until after 5y What are DEBENTURES: It is a bond secured by properties, as when a corporation secured its investments with a real estate mortgage Investment by being a part owner: Raising capital via stock ownership Q: How does one make an investment, not as a loan but, as a co-investor: One can invest in shares. It can be in preferred shares where there is a regular return of income, or in redeemable and convertible preferred shares. PREFERRED SHARES: Shares with the usual preferences on profits and assets. eg Those guaranteed with a 10% per annum income or dividends. (THUS, they are payable only if the corporation has surplus profits).

What are these RULES ON SOLICITATION OF INVESTMENTS 1. Before printing the brochures and other marketing documents, the corporation should apply for the registration of its securities with the SEC 2. There are two forms of investments in a commercial enterprise a. By lending money b. By becoming a part owner of an enterprise

PREFERRED REDEEMABLE SHARES: Those where the corporation reserves the right to buy it back within a certain period.

What is a COMMERCIAL ENTERPRISE: One engaged in commerce, or in buying and selling (stock corporations)

PREFERRED PARTICIPATING: Those which join the common stockholders in receiving additional dividends. There are none in the Ph.

Are non-stock corporations covered by the securities law: It is still pending determination. Non-stock corporations engage in limited commercial transactions and only for the benefit of its members.

Q: If there are no profits this year and thus no dividend, what happens if there are earnings next year: Shares could either be CUMULATIVE or NON-CUMULATIVE.

Investment in form of a loan / Lending money: When a corporation borrows money and signs a promissory note

CUMULATIVE PREFERRED SHARES: Those which receive what is not received in prior years due to absence of surplus

PREFERRED REDEEMABLE AND CONVERTIBLE: Those with an added feature that if the corporation fails to redeem the shares, the stockholder has the option to convert the preferred shares into common shares

NON-CUMULATIVE PREFERRED SHARES: Prior profits cannot be received in the future. It must be expressly stipulated.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

What is SUFFICIENT SURPLUS: eg Corporation has P50k dividends payable, but it has P49,999. There is surplus but no one gets any dividends because surplus is not sufficient. Q: What if investors come in as stockholders or part owners? A: Issue certificates of stock Q: If investments in form of stock, what shares? A: Shares can be common or preferred, but preferred has variations. Ex Redeemable, convertible, cumulative, non-cumulative, participating, nonparticipating. When redeemable, corporation reserves the right to buy back shares after a certain period. Option is with the corporation. It can’t be forced to buy back shares. Redemption is a right and not a duty.

What is the PHILIPPINE STOCKS EXCHANGE: It is the Philippine stock market Why are shares listed therein - To raise capital, by making an Initial Public Offering - To have a convenient facility for shareholders to buy and sell shares of stock through the exchange or LISTING BY INTRODUCTION. This is listing without the intent to raise capital THUS, if you want to buy or sell shares, you can transact in a matter of seconds. Where there is no market and you need eggs, you would have to look for people who sell eggs.

Convertible – preferred shares becomes common after a certain period. Q: Can a corporation redeem if it has no surplus profits? A: Yes, it is not in violation of the trust fund doctrine. However, the corporation shouldn’t redeem shares if as a consequence of redemption, it won’t be able to carry out its primary purpose. Q: How do corporations entice the public: The corporation makes FINANCIAL PROJECTIONS. 1. A commercial enterprise must first apply its securities for registration with the SEC before it can cause the printing of its marketing materials. It must file a REGISTRATION STATEMENT with SEC. It is a document where the SEC requirements are attached. a. Why: To protect the public from being defrauded by allowing them to determine whether the corp. is in a sound condition b. What is an AUDITED FINANCIAL STATEMENT: It is a schedule or breakdown of the corporation’s receivables. Do not take it on its face value. 2. The form of investment can either be a promissory note, bond, debentures, certificate of preferred or common shares. Preferred shares can be redeemable or convertible. 3. If the corporation intends to raise capital via stock ownership, it must apply for listing of its shares in the Ph Stocks Exchange after registering the securities with SEC. If investments are in the form of shares or equity participation, after SEC registration, corporation applies for listing with the PSE.

BUYING AND SELLING: trading EXCHANGE: In securities law, it is a corporation organized and licensed by the SEC to put up and operate facilities for the purpose of trading securities. It is barter or market or palengke in civil law. Note: There used to be a PSE in Makati and in Manila. They were merged. Note: Registration in the SEC is not a guarantee or assurance of listing in the PSE. According to the SC (Puerto Azul Case), SEC cannot force PSE to list shares. While SEC has supervision, it may not impose on the exchange. Note: Not all securities are required to be registered in SEC. What are EXEMPT SECURITIES 1. Those issued by the Ph Gov’t or any of its political subdivisions Why: Because the government will never defraud its citizens

2.

Those issued by Foreign Gov’ts with diplomatic ties with the Ph

3.

Those issued by receivers in insolvency Why: Because it undergoes judicial scrutiny

4.

Those issued by corporations under the supervision of the BIR, Insurance Commission, or HLURB

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

Note: Pre-need contracts are included in the jurisdiction of the IC 5.

How much commission do brokers receive: It depends but the maximum is 2% of the volume. They are paid because they do the legwork in the SEC and BIR.

Those issued by banks other than its own shares of stock Why: Because banks engage in daily transactions with the people. If they are required to list securities, then it will never accept time deposits

PRE-NEED CONTRACTS: Contracts wherein a corporation, in consideration of a promise of another to deliver an agreed amount in lump sum or in installments, agrees to deliver an agreed amount or to render a particular service upon the arrival of a period or the happening of an event; eg educational plans, memorial plans (which includes internment fee plans) Example: B anticipates the death and internment expenses of his mother-in-law. Thus, he buys a burial lot at present. Is it a pre-need contract? NO, even if it is in anticipation of a future need. There is no particular service or delivery of money to be rendered by the corporation. Here, the contract is a sale on installments. What are EXEMPT TRANSACTIONS: May require prior registration, but may apply for exemption. Its types are Certificated or Uncertificated UNCERTIFICATED - When securities bought are sold as soon as the prices go up - These are paperless securities, where ownership is evidenced by electronic records only. Records are also kept by the PSE, the broker, and the salesman, thus, it is not entirely paperless - The broker prepares a PURCHASE CONFIRMATION or SALE CONFIRMATION, showing the number of shares bought or sold, the price, and from/to what company it was purchased/sold, and the commission - Easier to sell

CERTIFICATED - When securities are bought or sold to build up stock ownership; it is a long-term plan - Stock ownership is covered by certificates of stock - It takes longer to sell because certificated stock ownership cannot be sold right away as the broker must have these certificates validated first (which takes 5 days)

Who are PERSONS ASSOCIATED WITH BROKERS: A corporation acts through its agents or officers known as persons associated with brokers. They are also licensed. Note: Only corporations can be licensed as brokers because individuals and partnerships can die. Who are DEALERS: Corporations licensed by the SEC to buy and sell securities for its own account. PERSONS ASSOCIATED WITH BROKER Acts for clients always Earns commissions Does not invest its own money

DEALER Acts for its own account, for itself Males profits and suffers loss Invests its own money

Who are SALESMEN: Persons representing stock brokers inside the trading floor of the PSE and accepting orders for buying or selling from clients of the broker. They also get a license, but a license is issued to salesmen is also only for a specific broker Note: All transactions in the PSE are conducted through the telephone Note: The trading hours of the PSE is from 0930-1200, 1300-1530. It is the time when you can buy or sell shares through the exchange Note: Where do you find brokers? In their offices! Note: All participants except investors are licensed. Licensing is annual.

2.

The salesman, who has a cubicle in the PSE, then makes a post of the shares that a client wants to buy or sell, in the computer of the PSE. Orders to buy are then matched with orders to sell. Once they are matched, the orders are removed in the computer.

How to Trade Stocks 1.

Engage the services of a broker What is a BROKER: Corporations licensed by SEC to buy and sell securities for their clients or on their behalf.

Q: If shares are listed in the PSE, can you still sell directly to the buyer or buy directly from the seller? YES, OVER-THE-COUNTER TRANSACTIONS are allowed! It is the buying or selling of shares listed in the PSE but made directly between the parties and no longer coursed through the exchange.

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013

ADVANTAGE: - The buyer does not have to pay the broker’s commission and stock transfer tax, and the seller only pays CGT (if there is gain) and DST. Note: Tax avoidance scheme is to sell shares worth P100,000 today and then the rest tomorrow so that the tax rate applicable is only 5%. - Hassle-free because the broker does all the work DISADVANTAGES: - Buyer might be buying shares covered by fictitious certificates of stock. In the PSE, certificated stock ownership cannot be sold right away because the broker must have these certificates validated first (which takes 5 days). (THUS, uncertificated SS are easier to sell) - Parties themselves do the legwork There are 3 participants in a market: 1.) Producer 2.) Buyer 3.) Seller/Intermediary What are the different financial markets? 1.) Money market 2.) Capital market 3.) Bond market 4.) Stock market

What is MARGIN TRADING: Trading is buy and sell. It is an arrangement with the broker where the investor has not much money and the broker advances part of the purchase price in the form of a loan. C: Broker does not use its own money, they use money of the client. Eventually, buyer may ask broker to advance money. This is called margin trading, the broker pays part of the purchase price. What are SHORT SALES: It occurs when a person sells shares he does not own while the prices are up, but he later on buys back such same shares when the prices are down, so he can return and deliver such shares which he had earlier sold. In other words, the seller sells shares he borrowed and does not own, but later he has to buy the same shares. This is legal. What are WASH SALES: These are illegal. It is a stock price manipulation. eg Case of BW Resources, Corp. It is a bingo company, whose shares has a par value of P1. Over the years, the market value of its shares rose to P2. Through manipulation, its market value very quickly became P107 each. The next day, it fell to P7. THUS, those who bought the shares at P107 suffered loss of P100 per share. It is because of this that he PSE became very strict! PSE RULE: When there is an unusual increase or decrease in the prices of shares, the PSE suspends the trading of the shares of such corporation to investigate the cause of the increase or decrease. There is unusual increase or decrease when the value of the shares increases or decreases by 10% in a day’s transaction.

Money Market – a source of funds, payment period not more than a year Capital Market – payment period is over a year but less than 5 years Bond Market – payment period is more than 5 years Stock Market – Source of funds for equity participation Money market placements are made through a bank. A bank finds funds through time depositors (usually) and after getting their consent, the amount is loaned to the borrower. The bank is a mere intermediary. Licensing – persons associated with broker may only use the license with a particular broker. If you move between brokers, you must get a new license.

What is a TENDER-OFFER: When a person or group of persons representing the same interests wants to acquire: (a) at least 15% of a listed company or (b) at least 15% of a company that is not listed but with assets worth P50M or more and with no less than 200 stockholders, each owning no less than 100 shares, (c) at least 30% of any of said companies, within a period of twelve months, makes a formal offer with the SEC, stating the price they are willing to pay and the terms of payment. Upon approval by the SEC, such person or group of persons can make announcements in newspapers. Securities Regulation Code: SEC. 19. Tender Offers. –19.1. (a) Any person or group of persons acting in concert who intends to acquire at least fifteen per cent (15%) of any class of any equity security of a listed corporation or of any class of any equity security of a corporation with assets of at least Fifty Million

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Commercial Law Review Dean Eduardo Abella First and Second Semester 2012-2013 Pesos (P50,000,000.00) and having two hundred (200) or more stockholders with at least one hundred (100) shares each or who intends to acquire at least thirty per cent (30%) of such equity over a period of twelve (12) months shall make a tender offer to stockholders by filing with the Commission a declaration to that effect; and furnish the issuer, a statement containing such of the information required in Section 17 of this Code as the Commission may prescribe. Such person or group of persons shall publish all requests or invitations for tender, or materials making a tender offer or requesting or inviting letters of such a security. Copies of any additional material soliciting or requesting such tender offers subsequent to the initial solicitation or request shall contain such information as the Commission may prescribe, and shall be filed with the Commission and sent to the issuer not later than the time copies of such materials are first published or sent or given to security holders.

OPEN: The price paid for the very first transaction of the day CLOSE: The price paid for the last transaction of the day LOW: The lowest price in between the trading hours HIGH: The highest price of the day VOLUME: All shares of the corporation traded for the day What are CLASS A and CLASS B SHARES: Class B shares are more expensive BUT they are exactly the same and identical shares. They are classified to comply with the citizenship requirement of the Constitution and only for the purpose of monitoring stock ownership. eg MERALCO, which is engaged in public service, classified its shares into Class A and B. Class A shares comprise 60% and are allowed only for Filipinos. Class B shares comprise 40% and are sold to aliens. Class B shares are more expensive because there are less of it and thus the law of supply and demand.

What is BACKDOOR LISTING: It is a legal scheme where a corporation which wants to avoid the hassle of listing instead acquires the controlling interest a corporation (2/3 of OCS) whose shares are already listed in the PSE but which corporation is no longer operating (DOORMAN CORPORATIONS). It then merges with the doorman corporation and in the merger, it is the doorman corporation that survives. Example: Case of Urban Development Bank and EI Bank. Urban Bank was a universal bank whose shares are listed. UB, however, could no longer comply with the increased paid up capital requirement of the BSP and it thus downgraded to a commercial bank. The result was a bank run and holiday; it never reopened until the EI Bank wanted its own shares to be listed and thus acquired and merged with UDB. UDB was the surviving corp. but its name was changed to Export and Industry Bank. BLUE-SKY LAW – any law relating to investments INSIDER – Could be a stockholder, officer, director or employee who because of relation with corporation has information not available to public which information could influence the price of shares of the corporation. An insider need not necessarily be a member of a corporation but one who derives information from another. NOTE: Original and exclusive jurisdiction over intracorporate controversies is no longer with SEC but with the RTC having jurisdiction over the principal place of business. FINAL NOTE: 09178012694. Text Sir for questions and, most importantly, when we pass the Bar 

STRADDLE, PUT, and CALL PUT: A contract which gives the holder the right to buy a specified number of shares for a specified price for a particular (definite) period CALL: A contract which gives the holder the right to sell a specified number of shares for a specified price for a particular (definite) period STRADDLE: Combination of both

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