Credit Transactions by Pineda

Credit Transactions By: Arnel Pineda 

Credit – the credit of a person means his ability to borrow money by virtue of the confidence or trust respond in him by the lender t hat he will pay what he may promise. - It is the trust or belief reposed by a person in another, of the latter’s ability to comply with an obligation.

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Credit Transactions – agreements based on trust or belief of someone on the ability of another person to comply with his obligations. - Includes all transactions involving loans of money, goods or services extended to another either gratuitously or onerously.

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Security – something promised or delivered to ensure the fulfillment of an obligation. Kinds of Credit Transactions

(A) As contracts of security: (1) Contracts of real property – supported by collateral/s or burned by an encumberance on property such as mortgage and pledge. (2) Contracts of personal property- contracts where performance by the principal debtor is not supported by collateral/s but only by a promise to pay or by the personal undertaking or commitment of another person. Examples : Surety, guaranty - Unsecured transactions (B) As to their existence: (1) Principal Contracts- they can exist alone. Their existence does not depend on the existence of another contract. Examples : commodatum, mutuum (2) Accessory Contracts – they have to depend on another contract. Examples: Guaranty proper, suretyship, pledge, mortgage and antichresis (C) As to their consideration: (1) Onerous- a contract where there is consideration or burden imposed like interest. (2 ) Gratuitous- a contract where ther e is no consideration or burden imposed like commodatum which is essentially free. 

Bailment- the delivery of a property of one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed and the property returned or duly accounted for when the special purpose is accomplished or kept until the bailor reclaims it. - Generally, no fiduciary relationship is created by a bailment. Personalities or Parties in Bailment.-

(1) Bailor- the one who gives or delivers the property bailed.

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It is also known as comodatario or commodans.

(2) Bailee- the one who receives the things delivered or bailed. - It is also known as comodante or commodatarius 

Letter of Credit- Trust Receipt Transaction Arrangement – a bank extend to a borrower a loan covered by the letter of credit, with the trust receipt as a security of loan.

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Bridge Financing- to obtain funds through an interim loan, while the main loan is not yet available.

TITLE XI – LOAN Article 1933: Two Kinds of Contracts of Loan:  Contract of Commodatum- where one of the parties (bailor) delivers to another (bailee) something not consumable so that the latter may use the same for a certain time and there after returns it. 

Contracts of Mutuum- where money or other consumable thing is delivered by the lender to the borrower subject to the condition that the same amount of the same kind and quality shall be paid.

Consumable Vs. Non- consumable things  Consumable- when it cannot be used in a manner appropriate to its nature without being consumed. Examples: Food, firewood, gasoline 

Non- consumable- is a movable thing which can be used in a manner appropriate to its nature without it being consumed. Examples: Car, television, radio

Fungible Vs. Non-fungible things  Fungible- is one where the parties have agreed to allow the substitution of the things given or delivered with an equivalent thing  Non-fungible- is one where the parties have the intention of having t he same identical thing returned after the intended use. Take note: -as to whether a t hing is consumable or not, depends upon the NATURE of the thing -as to whether it is fungible or not, depends upon the INTENTION of the parties Kinds of COMMODATUM: (1) Precarium- where the bailor may demand the thing loaned at will under the conditions set forth in Article 1947. The use of the thing by the bailee depends on the pleasure of the bailor. (2) Ordinary Commodatum-where the bailor cannot just demand the return of the things at will because there is a period agreed upon which must be respected.

Credit Vs Loan  Credit- his ability to borrow money by virtue o f the confidence or trust reposed by the lender unto him that he will pay what he has promised  Loan- the delivery by one party and the receipt by the other party of a given sum of money, upon an agreement, express or implied, to repay the sum loaned, with or without interest Loan Vs. Discount  In discounts –interest is deducted in advance always on double-name paper e xpiration of a credit  In loans – interest is taken at the expiration - On a single-name paper Loan Vs. Rent or Lease  Rent – the owner of the property does not lose his ownership. - He simply loses his control over the property rented during t he period of the contract - The relation between the contractors is that of a landlord and tenant  Loan- the thing loaned becomes the property of t he obligor - The relation between the parties is t hat of obligor and oblige Take Note:  Deposit with Interest is LOAN 

Loan with stipulation of sale of land, in case of non-paymentEFFECT: a parcel of land would be deemed sold to the lender for the amount of the loan is VALID

Article 1934: 

When can the contracts of Commodatum and Mutuum perfected? - They require the delivery of the o bjects of the obligations - No delivery, no contract - They cannot be perfected by mere consent because they not consensual agreements - They are real contracts which cannot be perfected until the delivery of the object of the contract  A Promise to deliver EFFECT: - If accepted, is BINDING upon the promissory and promissee because contracts are obligatory when all the essential requisites for their validity are pre sent. - No special form required for the validity of a contract of loan - In effect, the accepted promise to deliver something by way of a future loan becomes consensual contract - Its non-fulfillment will justify justify the filing of an action for damages COMMODATUM VS. MUTUUM

1.

BASIS Subject matter

COMMODATUM Non-consumable thing. Same thing must be returned

MUTUUM Money or consumable thing. The equivalent amount of same kind and quality is to be returned

2.

Nature

Essentially gratuitous

3.

Purpose

4. 5.

Kind of property involved Risk of loss

It is a loan for use or temporary possession ( Art 1935 ) Real or Personal property

6.

Time of payment

7.

Character of the contract

Lender or bailor retains ownership of the property May be returnable at the end of the period in case of urgent need Purely personal in character(1939)

May be gratuitous or onerous (as when interest is agreed upon) It is a loan for consumption Only personal property Ownership transmitted to the borrower or bailee Not returnable until the end of the period Not personal in character

LOAN vs DEPOSIT BASIS

LOAN Lender grants the borrower the use of the things loaned

1.

Purpose

2.

Time of Payment

Generally, borrower pays at the end of the period

3.

Applicability of compensation

4.

Juridical relations

Compensation of credits applicable Relationship is one of lender and borrower; or creditor and debtor

DEPOSIT Safekeeping of the thing deposited. Generally, the depositary cannot use the thing deposited Depositor can demand the return of the thing deposited at any time Compensation not applicable to things deposited Relationship is one of  depositor and depositary

CHAPTER 1 NATURE of COMMODATUM Article 1935: 

1. 2. 3. 4. 5. 6.

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Characteristics of Commodatum: It is essentially gratuitous. Its purpose is to transfer the temporary t emporary use of the thing loaned to the bailee. The use of the thing is for a “certain time”. It is a real contract because: -it requires delivery of the object It is a principal contract because: -it does not depend upon another contract It is a unilateral contract because: -after the object had been delivered by the bailor,(lender) it creates obligations to be performed by the bailee alone(borrower) It is purely personal because:

- of the trust and belief reposed on the bailee Take Note:  GENERAL RULE: The bailor does not enjoy the fruits 

EXCEPTION: When there is a stipulation in the contract allowing allowing the bailee to enjoy the fruits of  the thing loaned (Article 1940)

Article 1936: Subject of Commodatum - Must be NON-CONSUMABLE - Not to consume them Article 1937: 

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Object of Commodatum - Both movable and immovable property

Article 1938: 

The bailor of the thing in commodatum - Need not to be the owner of the thing THUS : the lessee may sublease and transfer the enjoyment of the thing leased to another for a consideration, as long as there is no prohibition for the subleasing in the contract of lease

Article 1939: Commodatum :  Is purely a PERSONAL CONTRACT.  THUS, the rights and obligations arising from the same are extinguished by: - The death of either the bailor or the bailee The bailee can neither lend nor lease the object of the contract to a third per son exept: - The member of the household of the bailee  Exception to the exception: - There is stipulation to the contrary - The nature of the thing forbids such use Article 1940:  A stipulation that the bailee may make use o f the fruits of the thing loaned is valid. 

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The enjoyment of the fruits : -must only be INCIDENTAL INCIDENTAL to the use of the thing -it should not be the main cause (usufruct)

OBLIGATIONS of the BAILEE Article 1941: The Bailee is obliged to: - Pay for the ordinary expenses for the use and preservation of the thing loaned REASON: - The bailee is under the obligation to return t he identical thing to the bailor - Consequently, it is understood that he should take good care of the thing with the diligence of a good father of a family  This Article applies only: - To ORDINARY EXPENSES 

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If the expenses incurred by the bailee are EXTRAORDINARY: - The bailor must reimburse the bailee provided that before incurring them, he first informs the bailee about it

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If the EXTRAORDINARY expenses are incurred during the actual use of the thing: - The bailee and the bailor shall equally bear the expenses UNLESS there is a stipulation to the contrary

Article 1942: GENERAL RULE : No person shall be responsible for those events which could not be foreseen,or which, though foreseen, were inevitable (art 1174)  EXCEPTION : The bailee is liable for the loss of the t hings if it should be through a fortuitous event: (1) If he devotes the thing to any purpose different from that for which it has been loaned. REASON: - He is in bad faith - He deviated the purpose for which the thing was bor rowed. 

(2) If he keeps it longer t han the period stipulated or after the accomplishment of the use for which the commodatum has been constituted. REASON: - He is guilty of mora or default - Liable due to delay (3) If the thing loaned has been delivered w ith appraisal of its value, unless there is stipulation exempting the bailee from responsibility in case of a fortuitous event REASON: - Assessment of its value serves as an early w arning (4) If he lends or leases he thing to a third peson who is not a member of his household. REASON: - Violated the pure personal character of the commodatum - Abused the trust reposed in him by t he bailor

(5) If, being able to save either t he thing borrowed or his own thing, he chose to save the latter. REASON: - Committed an act tantamount to ingratitude 

Loss – when it perishes, or goes out of commerce of man, or disappears in such a way that its existence is unknown or cannot be recovered. (art 1189)

Article 1943: GENERAL RULE: Bailee does not answer for the deterioration of the thing loaned due only: - To the use thereof ( wear and tear) - Without his fault  EXCEPTION: If the deterioration is caused by: - The fault or negligence of the bailee 

Article 1944: 

GENERAL RULE : Bailee has no right to retain the thing loaned on the gr ound that: - The bailor owes him something including claims for extraordinary expenses by him(bailee) REASON: - Bailment implied trust that as soon as the t ime has expired, or the purpose accomplished, the bailed property must be restored by the bailor

EXCEPTION: Bailee can retain the thing loaned when claims for damages which the bailee suffered by reason of: - Hidden defects or flaws of the thing loaned - He was not warned or advised by the bailor Take Note: He has no right to sell the thing to satisfy his claims for damages 

Article 1945: 

Solidary Obligation – each one of the debtors is obliged to pay the entire obligation, - and where each one of the creditors has the right to demand from any of the debtors , the payment or fulfillment of the entire obligation

TWO KINDS OF SOLIDARY OBLIGATIONS (a) Passive Solidarity- which is the solidarity on the part of the debtors (b) Active solidarity- which is the solidarity on the part of the creditors

OBLIGATIONS OF THE BAILOR Article 1946: 

The bailor cannot demand the return of the thing loaned till: - After the expiration of the period stipulated; or - After the accomplishment of the use for which the commodatum has been constituted.

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EXCEPTION to the RULE : When the bailor in the meantime, has urgent nee d of the thing loaned,he may demand its : - Return , or; - Its temporary use Take note:  in case of temporary use -the commodatum is not extinguished - it is merely suspended  However, if the period had already expired -the bailor can no longer demand the return of the thing  Damages are not recoverable by the bailee in the absence of bad faith on the part of the bailor 

If the loan is executed for illegal or immoral purpose or use, the contract is VOID.

Article 1947: 

Precarium- the bailee(borrower) is bound to return the thing upon the demand of the bailor (lender) in any of the following circumstances:

(1) If the duration of the contract had not been stipulated; (2) If the use to which the thing loaned should be devoted had not been also stipulated; and (3) If the use of the thing is merely m erely by tolerance of the owner

Article 1948: 

This applies to ORDINARY COMMODATUM

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The bailor may demand immediate return of the thing: - If the bailee has committed acts of ingratitude

There is act of Ingratitude (Article 765): (1) If the bailee should commit some offenses against the person, the honor or the property of the bailor, or his wife or children under his parental authority; (2) If the bailee imputes to the bailor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or act has been committed against the bailee himself, his wife or children under his authority; and (3) If the bailee unduly refuses the bailor support when the bailee is legally or morally bound to give support to the bailor Article 1949: Rule in ORDINARY and EXTRAORDINARY ex penses: 

Ordinary expenses for the use and pre servation of the thing shall:

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Shall be paid by the bailee or borrower Because he has the obligation to return the thing at the proper time and in good condition

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Extraordinary Expenses shall be borne: - By the bailor (lender) - The bailor shall fully refund to the bailee - The bailor must have been notified before the e xpenses were incurred HOWEVER the requirement of notice is not necessary when: - There is urgency in the repair of preservation to the thing loaned which means that delay will cause imminent danger to the property.

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Extraordinary Expenses incurred by the bailee on the occasion occasion of the actual use of the thing : - Expenses shall be divided equally between the bailor and bailee. REASON: - The bailee pays one half because of the benefit derived from the use of the thing loaned to him - The bailor pays the other half because he is the owner of the thing and the thing will be returned to him

Article 1950: 

The bailee is not entitled to: -the refund of other expenses outside of those covered by Articles 1941 and 1949 incurred for the purpose of making use of the thing REASON: -to prevent the bailee from incurring expenses w hich are not useful to the bailor -hence, the bailor must not be compelled to make reimbursement to the bailee

Article 1951: 

If the bailor is AWARE of any defects or flaws of the thing loaned and failed to advise the bailee : - There is tort or quasi-delict - The bailor is liable - The bailor is deemed to have acted in bad faith

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If the bailor is NOT AWARE of the flaws o f the thing loaned: - He cannot be liable for the resulting danger - Because commodatum is essentially gratuitous and not onerous

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If BOTH parties are aware of the flaws or defects: - The bailee is deemed to have assumed the risk - The bailor is not liable for the damages suffered by the bailee

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REASON for Art 1951: - If the person lends a thing, he ought to confer a benefit, and not to do mischief 

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The bailee has the right to retain re tain the thing loaned for damages he suffered

Article 1952: The bailor CANNOT EXEMPT HIMSELF from the payment of the expenses or damages by: - Abandoning the thing to the bailee  Renunciation of one’s right over the property is not sufficient to satisfy an obligation for expenses incurred. 

CHAPTER 2 SIMPLE LOAN OR MUTUUM Article 1953: 

Mutuum- a contract whereby one of the parties called the lender delivers to another called the borrower, money or other consumable thing with the condition or agreement that the same amount of the same kind and quantity shall be paid.  The cause in a contract of loan : - As to the borrower : the acquisition of the thing - As to the lender: the right to demand the return of the thing loaned or its equivalent  Ownership of the thing is transferred: - Borrower becomes the owner of the thing or property delivered to him MUTUUM VS RENT

1.

BASIS Ownership

MUTUUM (Simple Loan) Ownership of property is transferred to the borrower

2. 3. 4.

Nature Subject Matter Juridical Relations

Unilateral contract Consumable thing Lender and borrower

RENT or LEASE Ownership of property is not transferred to lessee. However, possession is temporarily relinquished to lessee for the period of the lease contract Bilateral Contract Non-consumable Lessor and lessee

Article 1954: 

Barter – a contract where one of the part ies binds himself to give one thing to another in consideration of the latter’s promise to give another thing. - The transfer of an ownership of non-fungible things to a party with obligation on his part to give things of the same kind quantity quantity and quality to another party

LOAN VS. BARTER

1. 2.

BASIS Subject Matter Nature

LOAN Money or other fungible things Mutuum may be gratuitous or onerous

BARTER Non-fungible things It is always onerous

3.

Effect

4.

Return of the thing

While in mutuum, there is transfer of ownership, there is no sale If the loan is a commodatum, the borrower returns the things after the expiration of the period agreed upon

It is in effect, a mutual sale resulting re sulting in the transfer of ownership on both sides The parties do not return the things subject of the exchange

Article 1955: FORM OF PAYMENT

curre ncy stipulated; If the object is money – money – Payment must be made in the currency otherwise it is payable in the currency which is legal tender in the Philippines. - According to Art. 1955, Art.1250, is applicable in payments of loans.  ART 1250 provides that in case of ext raordinary inflation or devaluation, the value of the currency at the time of the establishment e stablishment of the obligation (not at the time of payment) should be the basis for payment. 

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If the object is a fungible thing other than money – money – Borrower must pay lender another thing of  the same kind, quality, and quantity.  In case it is impossible to do so, the borrower shall pay its value at the time of the perfection of  the loan.

Article 1956: This Applies to : INTEREST FOR USE OF MONEY. 

Interest- is nothing more than the compensation agreed to be paid by the borrower for the use of the money lent to him by t he lender

Classes of Interest  Simple- which is paid for the use of the principal at a certain rate stipulated in writing by t he parties  Compound- which is imposed upon the accrued interest that is, interest due and unpaid.  Legal- that interest which the law directs to be paid in the absence absence of any agreement as to the rate. It is fixed 6% per annum. Requisites for Recovery of Interest: 1. The payment of interest must be expressly stipulated. 2. in writing Stipulation of interest

1. The interest rate stipulated by the part ies, not the legal rate of interest, is applicable.

2. Default rule: If the parties do not stipulate stipulate an interest interest rate, the legal rate for loans and forbearances of money is 12%. - For other sources of obligations, such as sale, and damages arising from injury to persons and loss of property which do not involve a loan, the legal rate of interest is 6%. 3. Increases in interest must also be expressly stipulated. 4. It is only in contracts of loan, with or without security, that interest may be stipulated and demanded. 5. Stipulation of interest must be mutually agreed upon by the parties and may not be unilaterally increased by only one of the parties. This would wo uld violate consensuality and mutuality of contract (PNB v. CA). The borrower is liable for interest even without a stipulation:

Indemnity for damages – The debtor in delay is liable to pay legal interest as indemnity for damages even without a stipulation for the payment of inte rest.  Where to base the rate of damages: a. Rate in the penalty clause agree d upon by the parties b. If there is no penalty clause, additional interest based o n the regular interest rate of  the loan c. If there is no re gular interest, additional interest is equivalent to the legal interest rate (12%) 

Interest accruing from unpaid interest  –  – Interest due shall earn interest from the t ime it is judicially demanded demanded although the obligation may be silent on this point (Art. 2212.) If interest is payable in kind: If interest is payable in kind, its value shall be appraised at the current price of the products or goods at the time and place of payment. 

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General Rule: Accrued interest shall not earn interest  Exceptions: When judicially demanded (Art. 2212) - Express stipulation – Also called compounding interest where the parties agree that accrued interest shall be added to the principal and the resulting total amount shall earninterest. compounding interest must be in writing.   A stipulation as to compounding 

The borrower pays interest when there is no sti pulation providing for it: - If the debtor pays unstipulated interest by mistake, he may recover, since this is a case of solution indebiti or undue payment. - But if the debtor voluntarily pays interest (either unstipulated or stipulated by not in writing) because of some moral obligation, he cannot later re cover. The obligation to return the interest is a natural obligation.