Credit Transactions

Law 107

CREDIT TRANSACTIONS A2016

Prof. Hector de Leon, Jr.

ANNOTATIONS

Apo Española DIGESTS

Carlos Marin

WITH NOTES FROM

Comments & Cases on Credit Transactions (2013) De Leon & De Leon, Jr.

I. INTRODUCTION A. M EANING & SCO PE of CREDIT TRANSACTIO NS

Parties in a bailment 1. Bailor—The giver, or the party who delivers possession or custody of the thing 2. Bailee—The recipient, or the party who receives possession or custody of the thing

Definition of credit transactions All transactions involving the loan or purchase of goods, services, or money in the present with a promise to pay or deliver in the future.

Parties in a bailment Classified according to compensation: 1. For the sole benefit of the bailor Example: Gratuitous deposit 2. For the sole benefit of the bailee Examples: Commodatum, gratuitous mutuum 3. For the benefit of both parties Examples: Mutuum with interest, deposit for compensation, involuntary deposit, bailment for hire (of things, of service, for carriage of goods, and of custody)

via de Leon Sr. & de Leon Jr.

Credit transactions involve: - The trust and confidence reposed in one person (the borrower) by another (the lender) - The expectation that the thing loaned will be returned

What is the borrower’s credit? It is his ability to make a loan or purchase goods and services based on his promise that he will pay later. -

Now: Loan/delivery » money/thing, or purchase » goods/services Future: Promise to pay/deliver

Bailments for hire A bailment for hire (location et conductio) is when goods are left with the bailee for his use or for a service by him, always with compensation. The kinds of bailment for hire are: 1. Hire of things—Goods are delivered for the temporary use of the hirer (location rei) Example: Lease 2. Hire of service—Goods are delivered for some work or labor upon it (location operis faciendi) Example: Contract for a piece of work 3. Hire for carriage of goods—Goods are delivered either to a common carrier or to a private person for the purpose of being carried from place to place (location operis mercium vehendarum) 4. Hire of custody—Where goods are delivered for storage (location custodiae)

Principal vs. accessory contracts Credit transactions such as that of loan and deposit are principal contracts, and may be accompanied by the accessory contract of security.

B. M EANING & KINDS of SECURITY Definition of security Something given, deposited, or serving as a means to ensure the fulfillment or enforcement of an obligation or of protecting some interest in property. via de Leon Sr. & de Leon Jr.

Kinds of security

via de Leon Sr. & de Leon Jr.

1. Personal—Fulfillment by the principal debtor is secured only by a promise to pay or the personal commitment of another Examples: Guaranty, surety 2. Real—Supported by a collateral or an encumbrance of property Examples: Pledge, chattel mortgage, real estate mortgage, antichresis

C. CO NTRACTS of BAILMENT Definition of bailment Delivery of 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. via de Leon Sr. & de Leon Jr.

The key elements of this definition are, therefore: 1. There is a delivery of property; 2. Such delivery has been in trust; and 3. There is a promise to return the thing delivered.

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II. LOAN A. GENERAL PRINCIPLES

B. CO MMO DATUM

1. Definition

1. Concept

A R T . 1 9 3 3, C C

A R T . 1 9 3 5, C C

By the contract of loan, one of the parties delivers to another, either something not consumable so that the latter may use the same for a certain time and return it, in which case the contract is called a commodatum; or money or other consumable thing, upon the condition that the same amount of the same kind and quality shall be paid, in which case the contract is simply called a loan or mutuum. Commodatum is essentially gratuitous. Simple loan may be gratuitous or with a stipulation to pay interest. In commodatum the bailor retains the ownership of the thing loaned, while in simple loan, ownership passes to the borrower. (1740a)

The bailee in commodatum acquires the use of the thing loaned but not its fruits; if any compensation is to be paid by him who acquires the use, the contract ceases to be a commodatum. (1941a)

Requisites of commodatum 1. The thing given is non-consumable; 2. The thing is given for the borrower’s use; and 3. The borrower must return the thing after the period given or the purpose of the loan achieved.

2. Characteristics (2)

1. 2. 3. 4. 5. 6. 7.

A loan is a contract whereby a thing owned by one person is delivered to another, with the obligation that the latter should return it.

2. Types

Thing delivered Origin of term Effect of contract Borrower’s obligation at termination

Kinds of loan compared Commodatum Mutuum Non-consumable, Consumable in general Mutuus, meaning Commodare “borrow;” mutare, meaning “change” Borrower may use Borrower may consume the thing (contract the thing (contract of of use) consumption) Return a thing of same Return the kind or quality, or the identical thing value of the thing

3. Distinguished from other contracts Loans compared to other contracts Commodatum Gratuitous; no compensation Commodatum Bailor does not transfer Donor transfers ownership ownership; the bailee has the obligation to return the thing Barter Mutuum Involves the lending of a Involves the exchange of a fungible thing, with an non-fungible thing for another obligation to return its value, thing of the same kind, or a thing of the same kind, quantity, and quality quantity, and quality Lease Lessee must pay rent Donation

a. Real A R T . 1 3 1 6, C C Real contracts, such as deposit, pledge and commodatum, are not perfected until the delivery of the object of the obligation. (n)

A R T . 1 9 3 4, C C An accepted promise to deliver something by way of commodatum or simple loan is binding upon the parties, but the commodatum or simple loan itself shall not be perfected until the delivery of the object of the contract. (n) A contract of loan is thus a real contract, perfected upon delivery of the subject matter (as opposed to a consensual contract, whereby a simple meeting of the minds between the parties perfects the contract).

Contract to loan vs. perfected contract of loan An accepted promise to deliver something by way of commodatum is thus a contract to loan, which is consensual—that is, perfected by mere consent. Therefore, a contract to loan is enforceable. However, the contract of loan of either commodatum or mutuum is a real contract. This means that a contract of commodatum or mutuum is perfected only upon delivery of the subject matter.

Why is delivery essential to perfection? The nature and purpose of a commodatum is that the borrower is entitled to the use of the thing. Only when delivery is made does the use of the thing become available to the borrower. Hence, only when delivery has already been made does the commodatum become perfected.

A R T . 1 9 5 4, C C A contract whereby one person transfers the ownership of non-fungible things to another with the obligation on the part of the latter to give things of the same kind, quantity, and quality shall be considered a barter.

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Characteristics of commodatum (RUNP IG) Real Unilateral Nominate Principal Personal* Informal Gratuitous

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b. Unilateral The bailee’s primary obligation is to return the thing after the expiration of the period or the completion of the purpose for which the commodatum was constituted. He has several other obligations during the duration of the commodatum (to be discussed later on). Meanwhile, commentators describe the bailor’s obligations as merely possible, arising only under special circumstances. It is thus the bailee who bears the obligations of the contract: a commodatum is thus unilateral in this sense.

c. Nominate

Exception: Must appear in a public document if it creates or transmits real rights over immovable property.1 1

Art. 1358

g. Gratuitous Commodatum is essentially gratuitous Any compensation paid by the borrower who acquires the use of the thing removes the contract from the ambit of a commodatum. In such case, the contract that arises is a lease. See Arts. 1933 (parag. 2) and 1935.

3. Essential requisites

It is a nominate contract, as opposed to an innominate one, because the Civil Code specifically gives it a name.

a. Consent

d. Principal

A R T . 1 3 1 9, C C

It is a principal contract, as opposed to an accessory one, because it can stand alone without need of relying on any other contract.

e. Personal* A R T . 1 9 3 9, C C

Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a counter-offer.

Consent by natural persons

Commodatum is purely personal in character. Consequently: (1) The death of either the bailor or the bailee extinguishes the contract; (2) The bailee can neither lend nor lease the object of the contract to a third person. However, the members of the bailee’s household may make use of the thing loaned, unless there is a stipulation to the contrary, or unless the nature of the thing forbids such use. (n)

Consent must be given by one who has capacity to do so. Thus, unemancipated minors, insane or demented persons, and deaf-mutes who do not know how to write1 cannot give consent to a contract, and thus cannot enter into a contract of commodatum. 1

via Art. 1327

b. Object A R T . 1 9 3 6, C C

* Note: Sir discussed the personal nature of commodatum under its essential requisites, i.e. parties, but since this characteristic is definitive of commodatum, we’ll insert the discussion here.

Consumable goods may be the subject of commodatum if the purpose of the contract is not for the consumption of the object, as when it is merely for exhibition. (n)

Consequences of being personal in character

A R T . 1 9 3 7, C C

1. As to use General rule—Only the bailee may use the thing. Exception—The use may extend to the members of the bailee’s household (not family). Exceptions to the exception: a. Stipulation prohibits such use b. The nature of the thing forbids such use 2. As to termination—The contract is extinguished upon the death of either party.

Movable or immovable property may be the object of commodatum. (n)

f.

A R T . 4 1 8, C C Movable property is either consumable or nonconsumable. To the first class belong those movables which cannot be used in a manner appropriate to their nature without their being consumed; to the second class belong all the others. (337)

Informal

A R T . 1 9 4 0, C C A stipulation that the bailee may make use of the fruits of the thing loaned is valid.

A R T . 1 3 5 8, C C The following must appear in a public document: (1) Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sales of real property or of an interest therein are governed by Articles 1403, No. 2, and 1405;

Requisites of valid object of commodatum 1. Must fulfill requisites of object of a valid contract Not outside the commerce of men1 Not impossible2 Determinate3 2. Must be non-consumable May also be consumable, if only for exhibition or display—that is, if the purpose of the bailee’s use is not consumption

Summary of rules on form of commodatum General rule: May be either oral or written

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3. May be either movable or immovable property 4. Use must be limited to the thing which is the principal object of the contract Use does not extend to the thing’s fruits, although the parties may stipulate to that effect4 Reason: Bailor retains ownership and he is therefore entitled to the fruits of the thing Stipulation for enjoyment of the fruits: cannot be presumed and must only be incidental to the use of the thing itself 1 3 via Art. 1347 via Art. 1349 2 4 via Art. 1348 via Art. 1940

bailees to whom a thing is loaned in the same contract * via Art. 1942

a. Take good care of the thing with the diligence of a good father of the family A R T . 1 1 6 3, C C Every person obliged to give something is also obliged to take care of it with the proper diligence of a good father of a family, unless the law or the stipulation of the parties requires another standard of care. (1094a)

c. Cause Because commodatum is essentially gratuitous, its cause is the liberality of the bailor.

The failure to take care of the thing loaned with the diligence of a good father of a family makes the bailee liable for damages.

b. Use the thing loaned only for the purpose for which it was loaned, and for no other purpose

d. Delivery As a real contract, delivery is an essential requisite to perfecting commodatum.

Art. 1935, supra Art. 1939, supra Art. 1940, supra

4. Parties to the contract

If there is no agreement as to the purpose of the thing, then it is presumed it shall be used according to its nature.

A R T . 1 9 3 8, C C The bailor in commodatum need not be the owner of the thing loaned. (n) The lender is called the bailor. The borrower is called the bailee.

The breach of this obligation makes the bailee liable for damages, and also makes him liable for the loss of the thing due to fortuitous event.

The bailor need not be the owner of the thing loaned: commodatum does not transfer ownership, so there is no requirement that the bailor be capable of transferring ownership at the time the contract is constituted.

c. Pay ordinary expenses for the use & preservation of the thing, and portion of extraordinary expenses for the actual use of the thing

Commodatum is also personal in character. See table “Consequences of being personal in character” under Characteristics » Personal.

A R T . 1 9 4 1, C C The bailee is obliged to pay for the ordinary expenses for the use and preservation of the thing loaned. (1743a)

5. Obligations of the bailee

1. 2.

3.

4.

5.

Summary of bailee’s obligations and liabilities in case of failure to fulfill them Obligation Liabilities Take good care of the thing with the diligence of a good Damages to bailor father of the family Use the thing loaned only Damages to bailor for the purpose for which it Loss of thing due to fortuitous was loaned, and for no event* other purpose Pay ordinary expenses for the use and preservation of the thing, and portion of Damages extraordinary expenses for the actual use of the thing Damages Return and not retain thing Possible liability for estafa loaned, except under Loss of thing due to fortuitous certain circumstances event* Be solidarily liable when — there are two or more

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A R T . 1 9 5 0, C C If, for the purpose of making use of the thing, the bailee incurs expenses other than those referred to in Articles 1941 and 1949, he is not entitled to reimbursement. (n)

Who between the parties is liable for expenses Use Preservation Ordinary Bailee Bailor; also refunds to bailee extraordinary Bailee & bailor, in expenses for preservaExtraordinary 50:50 proportion tion that have been duly brought to bailor’s attention All other expenses for the thing’s use are borne by the bailee.

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d. Return and not retain thing loaned, except under certain circumstances A R T . 1 9 4 4, C C The bailee cannot retain the thing loaned on the

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ground that the bailor owes him something, even though it may be by reason of expenses. However, the bailee has a right of retention for damages mentioned in Article 1951 (1747a).

from the actual use of the thing 3. Pay damages for known hidden flaws

a. Refund extraordinary expenses for the preservation of the thing loaned

A R T . 1 9 4 6, C C

A R T . 1 9 4 9, C C

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. However, if in the meantime, he should have urgent need of the thing, he may demand the return or temporary use. In case of temporary use by the bailor, the contract of commodatum is suspended while the thing is in the possession of the bailor. (1749a) This obligation to essential to commodatum: the obligation to return is part of its definition. Further, failure to return would be a violation of the trust reposed by the bailor in the bailee. Breach of this obligation makes the bailee liable for damages, loss as a result of fortuitous event, and even estafa under Art. 315 RPC. The general rule is also that the bailee has no right of retention.

e. Be solidarily liable when there are two or more bailees to whom a thing is loaned in the same contract

The bailor shall refund the extraordinary expenses during the contract for the preservation of the thing loaned, provided the bailee brings the same to the knowledge of the bailor before incurring them, except when they are so urgent that the reply to the notification cannot be awaited without danger. If the extraordinary expenses arise on the occasion of the actual use of the thing by the bailee, even though he acted without fault, they shall be borne equally by both the bailor and the bailee, unless there is a stipulation to the contrary. (1751a) The bailee is required to give notice to the bailor of extraordinary expenses incurred for the preservation of the thing. The decision, however, is to be made by the owner of the thing, i.e. the bailor. There is no required form for the notice—it may be oral or written. The notice is however not required if the expense to be incurred is urgent, i.e. if waiting for the response of the bailor may endanger the thing or cause its loss.

b. Refund portion of extraordinary expenses arising from the actual use of the thing

A R T . 1 9 4 5, C C When there are two or more bailees to whom a thing is loaned in the same contract, they are liable solidarily. (1748a)

Art. 1949, supra Extraordinary expenses for the use of the thing shall be borne by the bailor and the bailee on a 50-50 basis. This is because the bailor is the owner, and the thing will be returned to him, while the bailee has derived benefit from the thing.

A R T . 1 2 0 7, C C The concurrence of two or more creditors or of two or more debtors in one and the same obligation does not imply that each one of the former has a right to demand, or that each one of the latter is bound to render, entire compliance with the prestations. There is a solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. (1137a)

c. Pay damages for known hidden flaws A R T . 1 9 5 1, C C The bailor, who, knowing the flaws of the thing loaned, does not advise the bailee of the same, shall be liable to the latter for the damages which he may suffer by reason thereof. (1752)

This is not actually an obligation by itself, but only goes to the nature of the liability.

A R T . 1 9 5 2, C C The bailor cannot exempt himself from the payment of expenses or damages by abandoning the thing to the bailee. (n)

6. (Possible) obligations of the bailor These obligations are described as possible, because they only arise under special circumstances.

Requisites for damages to be paid to bailee 1. 2. 3. 4.

Obligation to respect duration of loan Pursuant to Art. 1946, the bailor has the obligation to respect the period or purpose for which the commodatum was constituted. The de Leons call this the “primary obligation of the bailor.”

Summary of bailor’s obligations

Flaw must be hidden from bailee Bailor is aware of the flaw/defect Bailor neglects to advise bailee of flaw/defect Bailee suffers damage due to hidden flaw/defect

Though generally a bailee has no right of retention, the exception is that when he has incurred damages under Art. 1951, he may retain the thing until he has been paid.

1. Refund extraordinary expenses for the preservation of the thing loaned 2. Refund portion of extraordinary expenses arising

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7 Art. 1942, supra Art. 1946, supra

7. Risk of loss & deterioration A R T . 1 9 4 2, C C

A R T . 1 9 4 7, C C

The bailee is liable for the loss of the thing, even 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; (2) If he keeps it longer than the period stipulated, or after the accomplishment of the use for which the commodatum has been constituted; (3) If the thing loaned has been delivered with appraisal of its value, unless there is a stipulation exempting the bailee from responsibility in case of a fortuitous event; (4) If he lends or leases the thing to a third person, who is not a member of his household; (5) If, being able to save either the thing borrowed or his own thing, he chose to save the latter. (1744a and 1745)

The bailor may demand the thing at will, and the contractual relation is called a precarium, in the following cases: (1) If neither the duration of the contract nor the use to which the thing loaned should be devoted, has been stipulated; or (2) If the use of the thing is merely tolerated by the owner. (1750a)

A R T . 1 9 4 8, C C The bailor may demand the immediate return of the thing if the bailee commits any act of ingratitude specified in Article 765. (n)

Definition of “term” Period agreed upon by the parties, or period required for the accomplishment of the purpose, for which the thing will be loaned

Summary of rules on liability for risk of loss General rule: Bailor is liable for loss or damage due to fortuitous event. Exception: If the following circumstances are present, the bailee will be liable for loss or damage due to fortuitous event. Exception Basis for liability 1. The bailee uses the thing for a different Bailee is deemed purpose other than that for which it was to have acted in loaned bad faith 2. The bailee keeps it beyond the Bailee incurs in stipulated period/after the purpose has delay been accomplished 3. The bailee lends/leases the thing to a Commodatum is third person not a member of his purely personal household 4. The bailee was able to save either the Bailee shows his thing borrowed or his own thing, and he ingratitude chose to save his own 5. The thing was delivered to the bailee Law presumes with an appraisal of its value—unless that parties there is a stipulation exempting the intend that bailee bailee from liability for fortuitous event be liable

Summary of rules on term of commodatum General rule: If a term has been constituted, the bailor must respect it Exceptions: 1. If the bailor has urgent need of the thing, he may demand its return temporarily or permanently;1 or 2. If the contract is one of precarium. 1

Definition of “precarium” A commodatum where no period has been agreed upon, or no purpose has been established, or the use of the thing is merely tolerated by its owner. In these cases, the thing may be demanded at the bailor’s will.

A R T . 1 2 3 1, C C Obligations are extinguished: (1) By payment or performance: (2) By the loss of the thing due: (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation.

A R T . 1 9 4 3, C C The bailee does not answer for the deterioration of the thing loaned due only to the use thereof and without his fault. (1746)

Deterioration arising from use is for the bailor’s account, provided that: 1. Deterioration is due only to use; and 2. It was without the bailee’s fault.

Summary of ways to extinguish commodatum

Under the general provisions1 on extinguishment: 1. Loss of thing 2. Condonation 3. Confusion/merger 4. Novation

8. Term & extinguishment

Specific to commodatum: 1. Return of the thing 2. Death of either party

A R T . 1 2 8 7, C C Compensation shall not be proper when one of the debts arises from a depositum or from the obligations of a depositary or of a bailee in commodatum. Neither can compensation be set up against a creditor who has a claim for support due by gratuitous title, without prejudice to the provisions of paragraph 2 of Article 301. (1200a)

via Art. 1946

1

As per Art. 1287, compensation does not apply to commodatum.

PAJUYO v. CA (2004) The contract of commodatum is essentially

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gratuitous. As per the CC, payment of compensation or the imposition of any condition will change the contract from one of commodatum to another kind of contract—in this case a contract of rent.* * However, this ruling is flawed in that the condition to keep the thing in good condition is part and parcel of commodatum.

Facts: Pajuyo allowed Guevarra to stay in his house rent-free with the sole condition that he will vacate upon demand. Upon demand, however, Guevarra failed to leave. The CA ruled that the agreement was in the nature of a commodatum—Guevarra hence had the better right because he was in rightful possession thereof.

Facts: Bagtas had three bulls that he borrowed from the Bureau of Animal Industry for one year. Note that they had corresponding appraised values. Upon the expiry of the one-year period, he tried to keep them despite demand being made for their return. He was able to return two while one was shot in a Huk raid. Issue: WON Bagtas’s estate is liable for the cost of the bull – YES Ratio: The case falls under situations 2 and 3 of Art. 1942. [see doctrine]

C. M UTUUM

Issue: WON the contract they entered into was a loan or commodatum—LOAN

1. Concept A R T . 1 9 5 3, C C

Ratio: Being that it was not essentially gratuitous because of the obligation, it was in the nature of a loan

A person who receives a loan of money or any other fungible thing acquires ownership thereof, and is bound to pay to the creditor an equal amount of the same kind and quality. (1753a)

QUINTOS v. BECK (1939) The obligation of the bailee to return the property of the bailor in a contract of commodatum covers all of what was lent without exception. Further, actual physical return is required—depositing the same to a sheriff will constitute breach of the obligation to return.

A mutuum is thus a loan for consumption, whereby a transfer of ownership occurs.

2. Characteristics Art. 1934, supra

Facts: Beck rented a house owned by Quintos. The latter gratuitously lent the use of some furniture to Beck. Quintos sold the property and subsequently demanded the return of the furniture. Beck refused to return three gas heaters and subsequently deposited the other pieces of property with the sheriff.

Characteristics of commodatum (RUNPIGO) 1. 2. 3. 4. 5. 6.

Issue: WON Beck was in breach of his obligation to return the property of Quintos – YES Ratio: Being that the contract entered into was one of commodatum, the obligation of beck mean that he should return all of what was lent to Quintos at the latter’s residence or house.

REPUBLIC v. BAGTAS (1962) While the general rule is that the bailee in a contract of commodatum will not be liable for the loss of the thing when it was caused by a fortuitous event, he will be liable in such an instance if: 1. The thing is devoted to a purpose not contemplated; 2. Keeps it longer than the period stipulated/after the accomplishment of the use for which it was lent; 3. The thing been delivered with an appraisal of its value, unless there is a stipulation that exempts the bailee; 4. Lends or leases the thing to a third person who is not a member of his household; 5. If the bailee chooses to save his property instead of what was borrowed.

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Real Unilateral Nominate Principal Informal May be either gratuitous or onerous

a. Real Delivery of the money subject of the mutuum is essential to its perfection. However, delivery either actual or constructive: it need not be actually put in the borrower’s hands, e.g. deposit in the debtor’s account. A contract to loan, however, is consensual, perfected by the parties’ mere consent. It is thus demandable at once.

b. Unilateral The debtor is the one who is mainly obliged in a mutuum, and the obligation is to return the equivalent of the amount borrowed.

c. Nominate It is nominate, because the Civil Code provides a name for it. Yes indeed!

d. Principal It is principal, because it can stand alone as a contract, without dependence on the existence and/or validity of any other contract.

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9 Summary of rules on form of mutuum

e.

Informal

The Civil Code does not provide a form in which a mutuum need be constituted: it may be either written or oral. An interest, however, must be stipulated in writing in order to be demandable.

f.

General rule: May be either oral or written Exceptions: 1. Interest—Must be stipulated in writing1 2. Agency—An agent borrowing in behalf of his principal must have a special power of attorney, unless the things in his control must be urgently preserved 1

2

Gratuitous or onerous

The mutuum is gratuitous if without a stipulated interest, but if the parties agree upon an interest, then it is onerous.

8. Obligations of the debtor Summary of obligations of the debtor

3. Essential requisites

1. Pay the creditor an equal amount of the same kind and quality 2. Pay interest, if stipulated in writing

a. Consent Consent to the contract must be given by parties with capacity to do so, i.e. not incapacitated by minority, insanity, etc.

b. Object Art. 418, supra Art. 1953, supra The object of a mutuum must be money, or other fungible things. By fungible things are meant those usually dealt with by number, weight, or measure, such that units may be treated as equivalents. If a non-fungible thing is given, but the obligation is to give something of the same value, then the contract is of barter.

A R T . 1 9 5 5, C C The obligation of a person who borrows money shall be governed by the provisions of articles 1249 and 1250 of this Code. If what was loaned is a fungible thing other than money, the debtor owes another thing of the same kind, quantity and quality, even if it should change in value. In case it is impossible to deliver the same kind, its value at the time of the perfection of the loan shall be paid. (1754a)

a. Pay the creditor an equal amount of the same kind A R T . 1 2 4 9, C C

c. Cause If gratuitous, i.e. without interest, the cause is the mere liberality of the creditor. If onerous, the payment of interest is the cause.

d. Delivery Mutuum being a real contract, delivery must first be made before it can be deemed perfected.

4. Parties to the contract

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

A R T . 1 2 5 0, C C

The lender is called the creditor. The borrower is called the bailee. The creditor must have the capacity to transfer ownership of the thing to the debtor at the time that the mutuum is constituted.

5. Form of the contract

In case an extraordinary inflation or deflation of the currency stipulated should supervene, the value of the currency at the time of the establishment of the obligation shall be the basis of payment, unless there is an agreement to the contrary. (n)

Art. 1953, supra Art. 1955, supra

A R T . 1 8 7 8, C C Special powers of attorney are necessary in the following cases: (7) To loan or borrow money, unless the latter act be urgent and indispensable for the preservation of the things which are under administration;

How payment must be made 1. Loan of money—Must be made in the currency stipulated, if it is possible; otherwise, it must be made in the currency that is legal tender in the Philippines. In case of extraordinary inflation/deflation, the value of the currency must be computed at the time the obligation was created, i.e. at the time the money lent was delivered to the debtor.

A R T . 1 9 5 6, C C No interest shall be due unless it has been expressly stipulated in writing. (1755a)

APO ESPAÑOLA & CARLOS MARIN

via Art. 1956 via Art. 1878

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2. Loan of fungible thing—Something of the same kind, quantity, and quality should be delivered; even if the value changes, the change must be borne by the debtor/borrower

In the determination of the interest, if it 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. (n)

When payment must be made

A R T . 1 9 5 9, C C

General rule: Payment must be made on the maturity date stipulated between the parties. Exceptions: 1. Prepayment—Acceptable if the mutuum is gratuitous; if onerous, then acceptable only if so stipulated; 2. Debtor is insolvent; 3. Debtor fails to give guaranties/securities that have been promised; 4. Debtor impairs the guaranties/securities through his own acts; 5. Debtor violates an undertaking, in consideration of which the creditor had agreed to the period; and 6. Debtor attempts to abscond.1 1

Without prejudice to the provisions of Article 2212, interest due and unpaid shall not earn interest. However, the contracting parties may by stipulation capitalize the interest due and unpaid, which as added principal, shall earn new interest. (n)

A R T . 2 2 1 2, C C Interest due shall earn legal interest from the time it is judicially demanded, although the obligation may be silent upon this point. (1109a)

A R T . 1 1 6 9, C C Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation. However, the demand by the creditor shall not be necessary in order that delay may exist: (1) When the obligation or the law expressly so declares; (2) When from the nature and the circumstances of the obligation it appears that the designation of the time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract; or (3) When demand would be useless, as when the obligor has rendered it beyond his power to perform. In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in the proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins. (1100)

Nos. 2 to 6 are via Art. 1198 (When a debtor loses every right to make use of the period stipulated)

Where payment must be made Payment may be made in these places: 1. The place agreed upon by the parties; 2. Absent such agreement, where the mutuum was constituted; or 3. The debtor’s domicile. See also Art. 2179, CC.

Failure to pay the value of the loan makes the debtor liable for damages, which may be in the form of an interest.

b. Pay interest, if stipulated in writing Art. 1956, supra Forms of interest 1. Monetary interest—Compensation for the use of money 2. Compensatory interest—Imposed by law or by courts, as indemnity for damages

When unpaid interest earns interest General rule: Interest that has accrued, or has become due yet gone unpaid, shall not earn interest Exceptions: 1. When judicially demanded; 2. When the parties expressly so stipulate.

Requisites for recovery of interest 1. Interest must be expressly stipulated; 2. Agreement must be in writing; 3. Interest must be lawful.

The parties may stipulate that both an interest and a penalty in case of default on the debtor’s part be paid.

A R T . 1 9 5 7, C C Contracts and stipulations, under any cloak or device whatever, intended to circumvent the laws against usury shall be void. The borrower may recover in accordance with the laws on usury. (n)

A R T . 1 9 6 0, C C If the borrower pays interest when there has been no stipulation therefor, the provisions of this Code concerning solutio indebitii, or natural obligations, shall be applied, as the case may be. (n)

A R T . 1 9 6 1, C C Usurious contracts shall be governed by the Usury Law and other special laws, so far as they are not inconsistent with this Code. (n) A usurious contract would not be considered void in its entirety, but only as far as the interest involved.

If unstipulated interest is paid by mistake, it would be a case of solutio indebitii. However, if unstipulated interest is paid voluntarily, there can be no recovery, as in the case of natural obligations.

A R T . 2 2 0 9, C C If the obligation consists in the payment of a sum of

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money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which is six per cent per annum. (1108)

nine years shall be valid. (1543a)

BSP CIRCULAR 799, Series of 2013 Sec. 1. The rate of interest for the loan of any forbearance of money, goods, or credits and the rate allowed in judgments, in the absence of an express contract as to such rate of interest, shall be six percent (6%) per annum.

General rule

Exceptions

Summary of rules on interest Interest on interest None1 Expressly agreed upon in writing, then pay: a. Rate stipulated b. Legal interest of 6% There has been judicial demand, then pay 6%, counted from date of when such demand was made

Interest on principal None Expressly agreed upon in writing, then pay: a. Rate stipulated b. Legal interest of 6%2 No stipulation, but there is delay, then pay 6% interest, computed from date of judicial or extrajudicial demand

Distinguished from contract of lease Mutuum Contract of lease Delivery of money or Delivery of a nonsome other consumable thing, consumable thing, allowing use for a Nature promising to repay certain period, after the equivalent which it must be amount of the same returned to the owner kind and quality Relation Obligor and obligee Landlord and tenant between parties Nature of Compensation to Payment to creditor money received owner of property

Art. 1954, supra

Object What must be returned

1

2

via Art. 1959 via BSP Circ. No. 799

In case of failure to pay interest, the creditor cannot avail of rescission under Art. 1191, because this applies to reciprocal obligations, and not to unilateral ones like mutuum. The creditor may, however, avail of specific performance.

Nature

PEOPLE v. CONCEPCION (1922) The concession of credit is in the nature of granting a loan up to the amount fixed in the credit granted.

9. Term & extinguishment Causes for extinguishment of mutuum

Discount Interest is deducted in advance from principal sum Always on double-name paper

The general rules on extinguishment of obligations apply. 1. Payment of the loan; 2. Condonation or remission; 3. Confusion or merger; 4. Compensation; and 5. Novation. via Art. 1231

Loss of the thing does not extinguish the obligation, since there is no obligation to return the same thing anyway.

Who bears the risk of loss and deterioration? The owner bears the risk of loss and deterioration. In mutuum, a transfer of ownership occurs between the creditor and the debtor, whereby the debtor becomes the owner of the thing borrowed. Thus, the debtor must bear the risk of loss and deterioration.

10. Distinguished from other contracts

Loan Interest is collected at the expiration of the credit Generally on single-name paper

Facts: Concepcion, President of PNB, was charged with a violation of Act No. 2747 for granting credit to his wife. He argued that the granting of credit was not tantamount to granting a loan. Issue: WON the grant of credits is in the nature of granting loans – YES Ratio: To take the position that the granting of credits is not, in itself, an act of loaning money to another would defeat the purpose of the law when it enacted safeguards regarding commercial transactions. In this case what was sought to be prevented was a conflict of interest.

GARCIA v. THIO (2007) The delivery that perfects a contract of mutuum does not require actual physical possession of what is lent—it is enough that what is lent is placed under the control and possession of the debtor.

A R T . 1 6 4 3, C C In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a price certain, and for a period which may be definite or indefinite. However, no lease for more than ninety-

APO ESPAÑOLA & CARLOS MARIN

Distinguishing loan from barter Loan Barter Mutuum—Money or Non-fungible, nonother fungible things consumable things Commodatum— Equivalent of the thing Identical thing must be received must be given returned in return Commodatum— Gratuitous Onerous, since it is Mutuum—Gratuitous or really a mutual sale onerous

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Absent written stipulation, the payment of interest cannot be enforced.

Issue: WON the contract was perfected on the date stipulated in their agreement (May 1, 1981) – NO

Facts: Garcia would give crossed checks under the name of Santiago to Thio. Thio would then give the checks to Marilou, receive payment from the latter, and remit the amounts due to Garcia. Upon default in the payments, Garcia filed a case against Thio. Thio argued that Garcia should proceed against Santiago because she the money lent was never delivered to her in the sense that it was never placed at her disposal.

Ratio: A contract of loan is a real contract; perfected only upon delivery of the object. The proper date of perfection was when Roa received the full loan.

PRODUCERS’ BANK v. CA (2003) When money (or something consumable) is gratuitously lent without the intent of spending/consuming it, as when it is used for exhibitions, the contract entered into is one of commodatum and not mutuum.

Issue: WON Thio is liable for the amounts owed to Garcia – YES Ratio: What they are engaged in is re-lending whereby one party lends to another who then lends it to a third person at higher interest rates. As applied, delivery was made to Thio when the checks under the name of Santiago were placed in her possession. Also, Thio was the listed creditor of Santiago in the latter’s insolvency proceedings.

SAURA IMPORT & EXPORT v. DBP (1972) Mutuum contracts are only perfected upon the actual delivery of the object of the contract. Notwithstanding fact that all documentary requirements have been signed, mutual desistance prior delivery of the object, as signified by the acts of the parties, may terminate the contract.

Facts: Vives deposited 200k in the account of Doronilla in order to help the latter incorporate her business. Vives attempted to recover the money lent but found out that only 90k remained. Further, the bank refused to release what was left because it was to answer for several postdated checks. Vives filed an action for recovery of a sum of money against Doronilla and the bank. Issue: WON the contract was of mutuum or commodatum – Commodatum

Facts: Saura, Inc. filed for a loan of 500k from the bank. Despite the fact that the loan documents were signed and the accompanying mortgage registered, the parties could not fully agree as regards it terms. Saura, towards the end, asked the bank to cancel the mortgage constituted on its property. As a result of the failure of the bank to release the amount sought to be borrowed, Saura defaulted in its other obligations. Saura then sued the bank for damages.

Ratio: The intent of the parties was not for Doronilla to consume the money but to keep it in her account for the purpose of satisfying incorporation requirements. Doronilla’s attempt to return 212k with the 12k as supposed interest did not convert it into one of mutuum. Further, the 12k constituted the fruits of the thing loaned and not interest; in a commodatum the bailee is obliged to return the fruits of the thing to the owner.

PEOPLE v. PUIG (2008) The relationship between a bank and its clients is in the nature of debtor and creditor. A relationship based on confidence exists between the bank and its employees, so the latter may be liable for qualified theft for misappropriating the money of the bank.

Issue: WON the contract was validly terminated by the conduct of the parties—YES Ratio: Saura’s request for the cancellation of the contract and their failure to initially accuse the bank of breach when their negotiations turned sour exhibit mutual desistance between the parties.

BPI INVESTMENT CORP. v. CA (2002) A contract of loan is perfected upon complete delivery of the object and not upon the meeting of minds of the parties or when they execute a written agreement. Being a reciprocal agreement, the creditor cannot demand payment until full delivery of what the debtor seeks to borrow.

Issue: WON the employees are liable for qualified theft – YES

Facts: Roa obtained a loan fron the bank which was restructured—it contained a stipulation that the payment of monthly amortizations would begin on May 1, 1981. However, the bank only released the entirety of the loan on Sept. 1982. Dispute arose regarding when the contract was perfected for purposes of determining when Roa should have begun paying the monthly amortizations.

APO ESPAÑOLA & CARLOS MARIN

Facts: Bank filed 112 cases of qualified theft against two of its employees for taking various accounts from the money deposited by its clients. RTC ruled that the elements of qualified were not present because there was no showing that the amounts were taken without the consent of the bank’s clients, neither was it alleged that a relationship of confidence present between the bank and its employees (the RTC was of the opinion that the clients retained ownership of the money).

Ratio: Under Arts. 1980 and 1953, it is clear that banks acquire ownership of money deposited by its clients because their relationship is governed by the provisions of the civil code on simple loans. As such, ownership passes from the clients to the bank upon the act of depositing their money. The bank was correct in charging its employees with qualified theft.

BPI FAMILY BANK v. FRANCO (2007)

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The creditor-debtor relationship that exists between clients and banks is coupled with an obligation to pay the former what is owed them by the latter upon demand. Neither do banks have a right to unilaterally freeze the assets of its clients on mere suspicion extraordinary diligence in the administration and handling of the same.

Allowing the debtor to benefit from the loan without the accrual of the agreed-upon interest constitutes unjust enrichment.

Facts: Franco opened a savings account with BPI that he filled with money from checks issued by Tevesteco. In turn, the money from Tevesteco was sourced from amounts of money debited from FMIC’s account. It turned out that the signatures that authorized the debiting of money from FMIC’s account were forgeries. To protect its interests, the bank placed the account of Franco under garnishment pursuant to an order issued by the RTC. Franco filed a case against BPI in response to the latter’s failure to unfreeze his account. Issue: WON Franco was entitled to the money notwithstanding the fact that the manner of its procurement may have been tainted by fraud – YES Ratio: The bank raised the defense that under Art. 599 one who has lost a movable or has been unlawfully deprived thereof may proceed against the person who took it. The court found this contention bereft of merit and held that while the bank owned the money deposited, it did not have the right to retain possession of it when demand was made. Further, Art. 599 is inapplicable because it only applies to specific or determinate things. The bank must bear the cost of its own negligence in not thoroughly examining the signature of its clients.

Facts: Frias entered into a transaction with San Diego for the sale of her house that provided that the latter will pay 3M to signify her intent provided that Frias will return the money with interest should San Diego decide against buying the property within 6 months of such notice. Frias received 2M when San Diego informed him that she no longer wanted to buy the property—the 2M thus became a loan extended by San Diego to Frias. Frias failed to pay within 6 months and issue arose as regards the computation of interest. Frias argued that as per their agreement, interest would only run for the duration of the 6 month period while San Diego argued that it would continue to run despite the expiration of the original period given. Issue: WON the interest continued to accrue after the 6 month period given to pay – YES Ratio: To give merit to Frias’s contention would create an absurd situation wherein no additional interest would accrue after the expiration of the 6 month period even if it would take an eternity for Frias to settle her indebtedness.

EASTERN SHIPPING LINES, INC. v. CA (1994) Court awards are in the nature of forbearances of money and are subject to the legal interest from the time of judgment until full payment; the current legal interest is 6%. Facts: Eastern Shipping shipped two drums riboflavin one of which, upon arrival, turned out to be damaged. MIC paid the insurance claim of the consignee and was subrogated to the rights of the latter. Dispute arose as regards the liability of the petitioner and the manner of computation of legal interest.

CONCEPCION v. CA (1997) A bank may not unilaterally increase interest rates through escalator clauses absent a showing of a written stipulation that allows them to do the same and, further, that all the conditions of the written stipulation have been met. Unless both requisites are met, no mutuality is present between the parties and such acts will be void.

Issue: WON the damages awarded by the Court are subject to legal interest – YES

Facts: The sps. Concepcion took out a loan from the bank whose terms included authorization for the bank to increase the interest rates in response to any increases that the Central Bank may make to rediscount rates. Under their contract, the spouses were also entitled to prior notification of any unilateral increases. The bank proceeded to increase interest rates on three occasions without showing cause for the same. Eventually, the spouses defaulted and the property mortgaged was foreclosed.

Ratio: When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, is 6% per annum from such finality until its satisfaction, as it constitutes a forbearance upon the finality of the judgment.

LIGUTAN v. CA (2002) The addition of a mortgage to a loan contract does not constitute novation because it is only an accessory contract that attaches to the latter. No incompatibility results therefrom and the parties are bound by the terms and conditions of the earlier contract.

Issue: WON the bank validly increased the interest rates of the loan – NO Ratio: Any increase on the interest rate was necessarily conditioned on previous modifications made by the CB on rediscount rates. The bank failed to show that any such adjustment was made. No justification for the increase of the interest rates.

FRIAS v. SAN DIEGO-SISON (2007) Interest placed on onerous loans will run from the moment that the debtor receives the sums borrowed until full payment of the principal sum.

APO ESPAÑOLA & CARLOS MARIN

Facts: Petitioners argue that the introduction of a real estate mortgage novated their contract of loan and extinguished their liabilities therein. Issue: WON the contract was extinguished because of novation – NO Ratio: For an incompatibility to extinguish a contract such must exist in any of the essential elements of the contract (changing it

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from one type of contract to another, change in the nature of the prestation, change of parties thereto through substitution or subrogation.

D. CO MMO DATUM vs. MUTUUM Commodatum Concept

Loan for use

What must be returned

The identical thing loaned

Characteristics

Real Unilateral Nominate Principal Informal Essentially gratuitous

Essential requisites

Parties Form Risk of loss (general rule) Extinguishment

Consent must be given by a capacitated party. Generally, object must be a nonconsumable thing. The cause is liberality. Delivery is essential for perfection. No transfer of ownership Either oral or written Bailor bears risk of loss Extinguished by loss

APO ESPAÑOLA & CARLOS MARIN

Mutuum Loan for consumption The equivalent amount of the same kind and quality Real Unilateral Nominate Principal Informal Either gratuitous or onerous Consent must be given by a capacitated party. Generally, object is either money or a fungible thing. The cause is either liberality or payment of interest. Delivery is essential for perfection. Lender should have capacity to transfer ownership Either oral or written, but interest should be written Debtor bears risk of loss, because of ownership Not extinguished by loss

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III. DEPOSIT A R T . 1 9 6 3, C C

A. INTRO DUCTIO N

An agreement to constitute a deposit is binding, but the deposit itself is not perfected until the delivery of the thing. (n)

1. Definition A R T . 1 9 6 2, C C A deposit is constituted from the moment a person receives a thing belonging to another, with the obligation of safely keeping it and of returning the same. If the safekeeping of the thing delivered is not the principal purpose of the contract, there is no deposit but some other contract. (1758a) In a deposit, one person receives something belonging to another, with the obligations to safely keep and return it.

The contract of deposit is perfected upon the delivery of the thing, but a contract of future deposit or contract to deposit is perfected by mere consent. The nature and primary obligation is that a thing must be kept—without delivery, this nature cannot be satisfied.

b. Unilateral or bilateral It is unilateral if no compensation has been paid to the depositary, and bilateral if compensation has been paid.

2. Types

c. Principal

A R T . 1 9 6 4, C C A deposit may be constituted judicially extrajudicially. (1759)

or

A voluntary deposit is principal, not dependent on another contract.

d. Informal

A R T . 1 9 6 7, C C An extrajudicial deposit is either voluntary or necessary. (1762)

A R T . 1 9 6 9, C C A contract of deposit may be entered into orally or in writing. (n)

Kinds of deposit 1. Extrajudicial—No court intervention a. Voluntary b. Necessary 2. Judicial—Court intervention

B. VO LUNTARY DEPO SIT

It may be constituted either orally or in writing.

e. Nominate It is nominate because the Civil Code said so. Yes indeed!

f.

1. Concept

A R T . 1 9 6 5, C C

A R T . 1 9 6 8, C C

A deposit is a gratuitous contract, except when there is an agreement to the contrary, or unless the depositary is engaged in the business of storing goods. (1760a)

A voluntary deposit is that wherein the delivery is made by the will of the depositor. A deposit may also be made by two or more persons each of whom believes himself entitled to the thing deposited with a third person, who shall deliver it in a proper case to the one to whom it belongs. (1763)

Summary of rules on whether onerous/gratuitous General rule: Gratuitous Exceptions: Onerous in cases of— 1. Contrary stipulation 2. Depositary engaged in business of storing goods 3. Property was saved from destruction, without the knowledge of the owner—The owner is bound to pay the depositary just compensation

Deposit and credit A voluntary deposit involves a relationship of trust, which takes into account the depositary’s personal quality of trustworthiness. It is a contract of confidence.

2. Characteristics

3. Essential requisites

Characteristics of voluntary deposit (RUBPINGO) Real Either unilateral or bilateral Principal Informal Nominate Either gratuitous or onerous

a. Consent

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

A R T . 1 9 7 0, C C If a person having capacity to contract accepts a deposit made by one who is incapacitated, the former shall be subject to all the obligations of a depositary, and may be compelled to return the thing by the guardian, or administrator of the person who made the deposit, or by the latter himself if he should acquire capacity. (1764)

a. Real Art. 1316, supra APO ESPAÑOLA & CARLOS MARIN

Onerous or gratuitous

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A R T . 1 9 7 1, C C

d. Delivery

If the deposit has been made by a capacitated person with another who is not, the depositor shall only have an action to recover the thing deposited while it is still in the possession of the depositary, or to compel the latter to pay him the amount by which he may be enriched or benefited himself with the thing or its price. However if a third person who acquired the thing acted in bad faith, the depositor may bring an action against him for its recovery. (1765a)

Deposit being a real contract, delivery is an essential requisite to its perfection.

4. Parties See also discussion on consent as an essential requisite.

A R T . 1 9 8 6, C C If the depositor should lose his capacity to contract after having made the deposit, the thing cannot be returned except to the persons who may have the administration of his property and rights. (1773)

Rules on incapacity of parties to deposit Effect Return must be made to: Depositor - The depositary’s guardian/administrator does not have - Depositor himself, once he acquires/regains capacity capacity - If thing is still in depositary’s possession, the depositor may recover it - If thing is in the possession of another who Depositary has acquired it in good faith, then the does not have depositor may recover the thing deposited capacity AND be paid the amount by which the depositary has been enriched - If third person has acquired it in bad faith, then the depositor may recover it Either one incapacitated Contract is voidable at perfection Both incapacitated Contract is unenforceable at perfection Incapacity

Characteristics of the parties to a deposit Depositor Depositary Makes the deposit Receives thing in deposit Not required to be the owner May not transfer the deposit of the thing deposited, since to third persons2 deposit does not transfer ownership Not required that the depositor prove his ownership of the thing to the depositary1 1

2

5. Obligations of the depositary Summary of obligations of the depositary

B.

Not to use the thing, unless authorized

C.

Return the thing - Return the thing closed and sealed - Return the thing with its products, accessories, and accessions

A R T . 1 9 7 2, C C The depositary is obliged to keep the thing safely and to return it, when required, to the depositor, or to his heirs and successors, or to the person who may have been designated in the contract. His responsibility, with regard to the safekeeping and the loss of the thing, shall be governed by the provisions of Title I of this Book. If the deposit is gratuitous, this fact shall be taken into account in determining the degree of care that the depositary must observe. (1766a)

Only movables may be the object of extrajudicial deposit, whether voluntary or necessary. However, other forms of deposit, i.e. judicial deposit, may cover both movable and immovable property. Art. 1966, however, does not cover rights and actions.

c. Cause

APO ESPAÑOLA & CARLOS MARIN

Keep the thing - Safely keep the thing - Not to transfer the deposit - Not to change way of deposit - Collect interest on choses in action - Not to commingle things, if so stipulated

Safely keep the thing

A R T . 1 9 6 6, C C Only movable things may be the object of a deposit. (1761)

The cause for a deposit may be either mere liberality of the depositary (if gratuitous) or the payment of compensation (if onerous).

A.

a. Keep the thing

b. Object

Art. 1965, supra

via Art. 1984 via Art. 1973

The degree of care required of the depositary is the same diligence that he would exercise over his own property. This is because deposit is a contract of confidence: the depositor is presumed to have chosen the depositary by considering the latter’s good faith and trustworthiness.

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Not to transfer the deposit

In case the depositary is permitted to commingle grain or other articles, the various depositors of the mingled goods shall own the entire mass in common. Each of them shall be entitled to the portion of the entire mass corresponding to their share, i.e. the amount they deposited.

A R T . 1 9 7 3, C C Unless there is a stipulation to the contrary, the depositary cannot deposit the thing with a third person. If deposit with a third person is allowed, the depositary is liable for the loss if he deposited the thing with a person who is manifestly careless or unfit. The depositary is responsible for the negligence of his employees. (n)

If there is stipulation that prohibits commingling, the depositary cannot commingle goods, even if they are of the same kind and quality.

b. Not to use the thing, unless authorized

The depositary is not allowed to deposit the thing with a third person, unless authorized by express stipulation. Unauthorized transfer would make him liable for damages.

A R T . 1 9 7 7, C C The depositary cannot make use of the thing deposited without the express permission of the depositor. Otherwise, he shall be liable for damages. However, when the preservation of the thing deposited requires its use, it must be used only for that purpose. (1767a)

Not to change the way of deposit A R T . 1 9 7 4, C C The depositary may change the way of the deposit if under the circumstances he may reasonably presume that the depositor would consent to the change if he knew the facts of the situation. However, before the depositary may make such change, he shall notify the depositor thereof and wait for his decision. (n)

Summary of rules on use of the thing deposited General rule: Not allowed Exceptions: 1. When stipulated in writing 2. When such use is necessary to the preservation of the thing

The exceptions under the obligation not to change the way of the deposit are: 1. That there is stipulation allowing it; or 2. The depositor consents, after being notified. When effected without stipulation or depositor’s consent, the depositary becomes liable for damages.

Failure to observe this obligation makes the depositary liable for damages.

A R T . 1 9 7 8, C C When the depositary has permission to use the thing deposited, the contract loses the concept of a deposit and becomes a loan or commodatum, except where safekeeping is still the principal purpose of the contract. The permission shall not be presumed, and its existence must be proved. (1768a)

Collect interest on choses in action A R T . 1 9 7 5, C C The depositary holding certificates, bonds, securities, or instruments which earn interest shall be bound to collect the latter when it becomes due, and to take such steps as may be necessary in order that the securities may preserve their value and the rights corresponding to them according to law. The above provision shall not apply to contracts for the rent of safety deposit boxes. (n)

Effects if permission to use is given Effect Contract loses character of deposit and Non-consumable becomes commodatum, unless thing safekeeping is still the principal purpose of the contract Permission to use results in consumption, converting contract into a mutuum Money or other consumable thing If safekeeping is still principal purpose of contract, an irregular deposit results Thing deposited

If the thing deposited earns interest, the depositary is obligated to: 1. Collect the interest, and also the capital itself, as it becomes due; and 2. Take the necessary steps to preserve the value and rights corresponding to the property

Not to commingle things, if so stipulated

Irregular deposit Where money or other consumable thing is deposited for safekeeping, and is demandable at will by the depositor, the contract is an irregular deposit.

A R T . 1 9 7 6, C C Unless there is a stipulation to the contrary, the depositary may commingle grain or other articles of the same kind and quality, in which case the various depositors shall own or have a proportionate interest in the mass. (n)

APO ESPAÑOLA & CARLOS MARIN

c. Return the thing A R T . 1 9 8 3, C C The thing deposited shall be returned with all its products, accessories, and accessions. Should the deposit consist of money, the

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provisions relative to agents in Article 1896 shall be applied to the depositary. (1770)

Art. 1986, supra

A R T . 1 9 9 0, C C If the depositary by force majeure or government order loses the thing and receives money or another thing in its place, he shall deliver the sum or other thing to the depositor. (1776a)

To whom depository is bound to return thing deposited To whom return must be made Depositor, his heirs and successors, or to General rule the person who may have been designated in the contract Each of them, returning the thing only to Joint depositors the extent that they claim Any of them, unless one has been Solidary depositors specifically designated; then return must be made to him Incapacity at time deposit was made— Guardian, administrator, or depositor Incapacitated himself, should he acquire capacity depositor Capacity lost later, during deposit— Legal representative True owner, if depositary knows who it is, Depositor of stolen and after advising true owner of the thing deposit

Who made deposit

A R T . 1 9 9 1, C C The depositor’s heir who in good faith may have sold the thing which he did not know was deposited, shall only be bound to return the price he may have received or to assign his right of action against the buyer in case the price has not been paid by him. (1778)

What depositary is bound to return Condition What must be returned Identical thing General rule Its products, accessories, and accessions Loss (force majeure or Sum received as government order) compensation Sale by depositary’s Sum received as a result heir in good faith of the sale Exceptions Deposit of a fungible Thing of the same value thing Thing of same kind or Commingling quality A R T . 1 9 8 4, C C The depositary cannot demand that the depositor prove his ownership of the thing deposited. Nevertheless, should he discover that the thing has been stolen and who its true owner is, he must advise the latter of the deposit. If the owner, in spite of such information, does not claim it within the period of one month, the depositary shall be relieved of all responsibility by returning the thing deposited to the depositor. If the depositary has reasonable grounds to believe that the thing has not been lawfully acquired by the depositor, the former may return the same. (1771a)

A R T . 1 9 8 7, C C If at the time the deposit was made a place was designated for the return of the thing, the depositary must take the thing deposited to such place; but the expenses for transportation shall be borne by the depositor. If the depositor has been designated for the return, it shall be made where the thing deposited may be, even if it should not be the same place where the deposit was made, provided that there was no malice on the part of the depositary. (1774)

Where depositary is bound to make return 1. Place agreed upon by the parties, with expenses for transportation being borne by the depositor; or 2. Absent stipulation, at the place where the thing deposited should be, even if this is not the same place where the deposit was originally made, provided that the transfer is made without bad faith on the part of the depositary.

What happens in case there is malice/bad faith? If the malice spoken of in Art. 1987 is present when the depositary brings the thing to the wrong place, what may he be liable for? Sir believes that aside from damages, the depositary may be liable for the expenses of bringing the thing to the original place.

Requisites of requirement to advise true owner For paragraph 2 of Art. 1984 to apply, the following requisites must be met: 1. The thing deposited must be stolen; and 2. The depositary must know who its true owner is.

A R T . 1 9 8 8, C C The thing deposited must be returned to the depositor upon demand, even though a specified period or time for such return may have been fixed. This provision shall not apply when the thing is judicially attached while in the depositary’s possession, or should he have been notified of the opposition of a third person to the return or the removal of the thing deposited. In these cases, the depositary must immediately inform the depositor of the attachment or opposition. (1775)

A R T . 1 9 8 5, C C When there are two or more depositors, if they are not solidary, and the thing admits of division, each one cannot demand more than his share. When there is solidarity or the thing does not admit of division, the provisions of Articles 1212 and 1214 shall govern. However, if there is a stipulation that the thing should be returned to one of the depositors, the depositary shall return it only to the person designated. (1772a)

A R T . 1 9 9 4, C C The depositary may retain the thing in pledge until

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the full payment of what may be due him by reason of the deposit. (1780)

unpaid amounts 4. Pay fees for deposit

When payment must be made

A R T . 1 9 9 2, C C If the deposit is gratuitous, the depositor is obliged to reimburse the depositary for the expenses he may have incurred for the preservation of the thing deposited. (1779a)

General rule: Upon demand (given a reasonable time), regardless of the period agreed upon Exceptions: 1. Judicial attachment 2. Opposition by third person 3. Right of retention, whereby depositary must be compensated first

Return the thing closed & sealed A R T . 1 9 8 1, C C When the thing deposited is delivered closed and sealed, the depositary must return it in the same condition, and he shall be liable for damages should the seal or lock be broken through his fault. Fault on the part of the depositary is presumed unless there is proof to the contrary. As regards the value of the thing deposited, the statement of the depositor shall be accepted, when the forcible opening is imputable to the depositary, should there be no proof to the contrary. However, the courts may pass upon the credibility of the depositor with respect to the value claimed by him. When the seal or lock is broken, with or without the depositary’s fault, he shall keep the secret of the deposit. (1769a)

This applies only to gratuitous deposits, because these expenses would have been incurred by the depositor had he not made the deposit. If the deposit were onerous, the expenses of preservation would be deemed included in the compensation paid to the depositary. Such expenses are therefore for his account. The right to reimbursement covers all expenses for preservation, whether ordinary or extraordinary.

A R T . 1 9 9 3, C C The depositor shall reimburse the depositary for any loss arising from the character of the thing deposited, unless at the time of the constitution of the deposit the former was not aware of, or was not expected to know the dangerous character of the thing, or unless he notified the depositary of the same, or the latter was aware of it without advice from the depositor. (n)

Exceptions under Art. 1993 In an onerous deposit, the depositor shall reimburse the depositary for losses arising from the character of the thing, except if: 1. The depositor was not aware of the thing’s dangerous character; 2. The depositor could not have been expected to know the thing’s dangerous character; 3. Depositary was notified of such character (assumption of risk); 4. Depositary was aware of such character, even without advice from the depositor.

Obligations & liabilities under Art. 1981 The depositary has the ff. obligations & liabilities: 1. When thing deposited has been delivered closed and sealed, return it in the same condition; 2. Pay for damages should the seal or lock be broken through his fault, which is presumed unless proven otherwise; 3. Keep the secret of the deposit when the seal or lock is broken, whether or not with his fault.

A R T . 1 9 9 4, C C

A R T . 1 9 8 2, C C When it becomes necessary to open a locked box or receptacle, the depositary is presumed authorized to do so, if the key has been delivered to him; or when the instructions of the depositor cannot be executed without opening the box or receptacle. (n)

The depositary may retain the thing in pledge until the full payment of what may be due him by reason of the deposit. (1780)

What the depositary is entitled to The depositary may exercise his right of retention if he has not been paid: 1. Reimbursement for necessary expenses; or 2. Liability for losses (damages).

When depositary is justified to open sealed thing 1. Presumed authority —Key has been delivered to him; or 2. Necessity—Depositor’s wishes cannot be carried out without opening the sealed thing.

7. Risk of loss and deterioration A R T . 1 9 4 7, C C

6. Obligations of the depositor

The depositary is liable for the loss of the thing through a fortuitous event: (1) If it is so stipulated; (2) If he uses the thing without the depositor’s permission; (3) If he delays its return; (4) If he allows others to use it, even though he himself may have been authorized to use the

Summary of obligations of the depositor 1. If deposit gratuitous, reimburse depositary for expenses incurred to preserve thing 2. If deposit onerous, reimburse depositary only for losses incurred or arising from character of thing deposit 3. Respect depositary’s right to retain things for

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same. (n)

(2) When it takes place on the occasion of any calamity, such as fire, storm, flood, pillage, shipwreck, or other similar events. (1781a)

Summary of rules on who bears the risk of loss General rule: Depositor shall bear the risk of loss (res perit domino) Exceptions: Depositary shall bear the risk of loss if— 1. Stipulation by the parties to the effect that the depositor shall be paid indemnity for the loss of the thing while in the depositary’s hands; 2. Depositary uses thing without permission from depositor; 3. Depositary incurs in delay, i.e. failure to return upon demand or after the period; 4. Depository was allowed to use the thing, but he let third parties use it

A R T . 1 9 9 7, C C The deposit referred to in No. 1 of the preceding article shall be governed by the provisions of the law establishing it, and in case of its deficiency, by the rules on voluntary deposit. The deposit mentioned in No. 2 of the preceding article shall be regulated by the provisions concerning voluntary deposit and by Article 2168. (1782)

2. Types Types of necessary deposits and their governing laws Governing law Provisions of the law that Made in compliance with a established the obligation + legal obligation provisions on voluntary deposit Taking place on calamitous Art. 2168 + provisions on occasions (deposito/depositum voluntary deposit miserabile) Made by travellers in hotels or Arts. 1998 to 2004 inns Made by passengers with Art. 1754 common carriers Kind of necessary deposit

8. Extinguishment A R T . 1 9 8 8, C C The thing deposited must be returned to the depositor upon demand, even though a specified period or time for such return may have been fixed. This provision shall not apply when the thing is judicially attached while in the depositary's possession, or should he have been notified of the opposition of a third person to the return or the removal of the thing deposited. In these cases, the depositary must immediately inform the depositor of the attachment or opposition. (1775)

a. Made in compliance with a legal obligation

A R T . 1 9 8 9, C C Unless the deposit is for a valuable consideration, the depositary who may have justifiable reasons for not keeping the thing deposited may, even before the time designated, return it to the depositor; and if the latter should refuse to receive it, the depositary may secure its consignation from the court. (1776a)

Some examples of this kind of deposit: 1. Judicial deposit of a thing whose possession is being disputed in litigation; 2. Deposit to guarantee contracts with the government; 3. Other deposits required in suits, as provided by the Rules of Court.

Summary of ways to extinguish deposit

Under the general provisions1 on extinguishment: 1. Return of thing 2. Loss or destruction of thing 3. Condonation 4. Confusion/merger 5. Novation 6. Expiration of term 7. Fulfillment of resolutory condition Specific to gratuitous deposits: 1. Death of either party 2. Return by depositary for justifiable reason 1

As per Art. 1287, compensation does not apply to deposit.

b. Deposito miserabile A R T . 2 1 6 8, C C When during a fire, flood, storm, or other calamity, property is saved from destruction by another person without the knowledge of the owner, the latter is bound to pay the former just compensation. These deposits occur when movable things pass from one person to another by accident/fortuitous event. The more immediate object of the deposit is to save the property, rather than to safely keep it. It is governed by Art. 2168, which establishes a quasi-contract: the owner of the thing becomes liable to pay the person who saved his property just compensation.

C. NECESSARY DEPO SIT c. Made by travellers in hotels or inns

1. Concept

A R T . 1 9 9 8, C C The deposit of effects made by the travellers in hotels or inns shall also be regarded as necessary. The keepers of hotels or inns shall be responsible for them as depositaries, provided that notice was given to

A R T . 1 9 9 6, C C A deposit is necessary: (1) When it is made in compliance with a legal obligation;

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them, or to their employees, of the effects brought by the guests and that, on the part of the latter, they take the precautions which said hotel-keepers or their substitutes advised relative to the care and vigilance of their effects. (1783)

liable, regardless of amount of care exercised

A R T . 1 9 9 9, C C The hotel-keeper is liable for the vehicles, animals and articles which have been introduced or placed in the annexes of the hotel. (n)

When not liable

This kind of deposit is embedded in a contract of lodging.

Coverage of law on hotel/inn deposits Travellers’ personal effects Vehicles Items covered Animals Articles introduced or placed in hotel premises Hotel rooms and common areas Places covered Hotel annexes, e.g. parking lots A R T . 2 0 0 0, C C

caused by servants, employees, or strangers Theft by stanger, without use of arms and/or irresistible force (due to apparent negligence) Force majeure Roberry with the use of arms/irresistible force Loss due to acts of guests, and their family, servants, or visitors Loss arises from character of things brought into the hotel

A R T . 2 0 0 4, C C The hotel-keeper has a right to retain the things brought into the hotel by the guest, as a security for credits on account of lodging, and supplies usually furnished to hotel guests. (n) This right of retention may be enforced against guests who have yet to fully pay the fees for the lodging received and amenities used.

The responsibility referred to in the two preceding articles shall include the loss of, or injury to the personal property of the guests caused by the servants or employees of the keepers of hotels or inns as well as strangers; but not that which may proceed from any force majeure. The fact that travellers are constrained to rely on the vigilance of the keeper of the hotels or inns shall be considered in determining the degree of care required of him. (1784a)

d. Made by passengers with common carriers A R T . 1 7 5 4, C C

A R T . 2 0 0 1, C C

The provisions of Articles 1733 to 17531 shall apply to the passenger's baggage which is not in his personal custody or in that of his employee. As to other baggage, the rules in Articles 1998 and 2000 to 2003 concerning the responsibility of hotel-keepers shall be applicable.

The act of a thief or robber, who has entered the hotel is not deemed force majeure, unless it is done with the use of arms or through an irresistible force. (n)

D. SEQUESTRATION/JUDICIAL DEPOSIT

1

1. Concept

A R T . 2 0 0 2, C C The hotel-keeper is not liable for compensation if the loss is due to the acts of the guest, his family, servants or visitors, or if the loss arises from the character of the things brought into the hotel. (n)

A R T . 2 0 0 5, C C A judicial deposit or sequestration takes place when an attachment or seizure of property in litigation is ordered. (1785)

A R T . 2 0 0 3, C C

A R T . 2 0 0 9, C C

The hotel-keeper cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles brought by the guest. Any stipulation between the hotel-keeper and the guest whereby the responsibility of the former as set forth in articles 1998 to 2001 is suppressed or diminished shall be void. (n)

As to matters not provided for in this Code, judicial sequestration shall be governed by the Rules of Court. (1789)

Nature and purpose of judicial deposit Judicial deposit is auxiliary to a case pending in court. It is remedial or procedural in nature; hence, it is governed by the Rules of Court. Its purpose is to maintain the status quo during the pendency of the litigation, or insure the right of the parties to the property in case of a favorable judgment.

Requisites for liability 1. Hotel/innkeeper must have been previously informed about the effects brought by guests; and 2. Guests have taken the prescribed precautions for safekeeping their items;

2. Object

Extent of liability Who is responsible When hotel-keeper

All those who offer lodging for compensation, whatever their character Loss or injury to guests’ personal property

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The provisions on common carriers.

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A R T . 2 0 0 6, C C Movable as well as immovable property may be the object of sequestration. (1786)

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Generally, immovable property is sequestrated, though either movables or immovables may be the object of judicial deposit.

3. Obligation of the depositary A R T . 2 0 0 8, C C

May be either onerous or gratuitous (Extrajudicial deposit) Only movable (corporeal) things may be given

Essentially and always gratuitous Both movable and immovables may be given

F. JUDICIAL DEPO SIT vs. EXTRAJUDICIAL DEPO SIT

The depositary of property sequestrated is bound to comply, with respect to the same, with all the obligations of a good father of a family. (1788) The depositary is a person appointed by the court. He has the obligation to take care of the property with the diligence of a good father of a family.

4. Term & extinguishment A R T . 2 0 0 7, C C The depositary of property or objects sequestrated cannot be relieved of his responsibility until the controversy which gave rise thereto has come to an end, unless the court so orders. (1787a)

E. DEPO SIT DISTINGUISHED FRO M O THER CO NTRACTS

1. From mutuum

Distinguishing loan from barter Judicial deposit Extrajudicial deposit By the will of the court By the will of the Cause/origin (no contract) parties (contract) As security, to secure Custody and the right of a party to Purpose safekeeping of the recover in case of a thing favorable judgment Either movable or immovable, though Only movable Subject matter generally immovable, property property Generally gratuitous, Always onerous Remuneration but may be (remunerated) compensated or not In behalf of person In behalf of depositor In whose who, by the judgment, or third person behalf held has a right designated

A R T . 1 9 8 0, C C Fixed, savings, and current deposits of money in banks and similar institutions shall be governed by the provisions concerning simple loan. (n)

BPI v. IAC (1988) The primary purpose of the contract of deposit is the safekeeping of the depositor’s property by placing possession thereof in the hands of the depositary—the depositary may not put what is deposited to any use.

Deposit vs. mutuum Deposit Principal purpose = safekeeping/mere custody Depositor can demand return of thing given at will Both movable and immovable property may be given

Mutuum Consumption of thing given Creditor must wait until the expiration of the period granted to the debtor Only money and other fungible things may be given

Irregular deposit v. mutuum Mutuum Creditor cannot seek restitution until time for payment as provided in contract has arisen Benefit accrues only to the Essential cause for transaction depositor = debtor’s necessity Depositor has preference over Common creditors enjoy no other creditors with respect to preference in the distribution thing deposited of debtor’s property Irregular deposit Consumable thing may be demanded at will by depositor

2. From commodatum Art. 1978, supra

Facts: Rizaldy entrusted, through the bank’s manager (Garcia), 3000usd with the bank for safekeeping—the terms of their agreement expressly stipulate that the purpose of their arrangement was safekeeping. When Rizaldy asked for the return of the sum deposited, the bank stated that dollars he had deposited had been credited to his account in its peso equivalent. Further, the bank denied the existence of a contract of depositum by alleging that Garcia exceeded his authority when he entered into the same in the name of the bank. Issue: WON a contract of depositum existed—YES Ratio: The wording of the agreement between the bank and Rizaldy and their subsequent acts clearly point to the fact that what they intended to exist between them was a contract of depositum. While the bank is technically in breach of its obligation to safeguard the thing and return it as it was received, Rizaldy cannot recover because the transaction that they entered into is against the law; in pari delicto.

TRIPLE V v. FILIPINO MERCHANTS (2005) Valet car services are in the nature of deposits made by the car owner to the valet service provider. Provisions that exempt the service provider from liability in case of loss are in the

Deposit v. commodatum Commodatum Transfer of use

Deposit Principal purpose = safekeeping/mere custody

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nature of contracts of adhesion and are void; it would be contrary to the nature of a deposit.

liable unless his negligence led to its loss.

Facts: De Asis ate at Kamayan restaurant where she entrusted her car to the restaurant’s valet service. After eating her fill, she discovered that her car had been stolen. FMICI, the insurer of De Asis’s vehicle, paid her insurance claim and proceeded against Triple V by virtue of subrogation. Triple V argued that it was not negligent in parking her car and that the valet ticket included a stipulation that they could not be sued for any loss incurred by the depositor of the car. Issue: WON a deposit contract existed between the two parties that could become the source of Triple V’s liability – YES Ratio: As regards negligence, the Court held that it was immaterial because this was an action premised on contractual breach—the breach occurred when Kamayan failed to secure the car from theft. The contract of deposit was constituted the moment possession of the car was placed in the hands of the restaurant’s valet drivers; it did not matter that the service was gratuitous.

Facts: Father de la Pena had in his possession as a trustee money that was meant to be used for the construction of a leper hospital. He deposited the money in his own bank account. During the war, the military authorities confiscated all the money in his account with HSBC because he was accused of being an insurgent and that the money in his account was suspected to be used for revolutionary purposes. Issue: WON Father de la Pena is liable for the loss of the money – NO Ratio: Being that the war is a fortuitous cause in the eyes of the law, he cannot be held liable for its loss on occasion thereof. There was no stipulation or law that prevented him from depositing the money into his account. Dissent: The moment he deposited the money into his personal account, it (the money) lost the protection and immunities accorded by the law.

DURBAN APARTMENTS v. PIONEER (2011)

CA AGRO-INDUSTRIAL DEV’T. v. CA (1993)

Hotels are liable for the loss of the possessions of its guests that are deposited to its staff or facilities. Under Art. 1968, such deposits are in the nature of necessary deposits and are valid sources of liabilities.

The relation between a bank renting out safedeposit boxes and its clients is that of a bailor and bailee. It cannot disclaim liability from the loss of the objects inside its safety deposit boxes by claiming that the same is in the nature of a contract of lease Facts: Titles of parcels of land that were the subject of transactions were placed in the bank’s safety-deposit box. When the parties to the transaction opened the safety-deposit box to get the titles, the same were not inside. CA Agro then filed a complaint for damages against the bank. The CA absolved the bank of liability on the strength of its opinion that the relationship between the bank and CA Agro was that of lessee and lessor and not of bailor and bailee. Issue: WON the relationship between a bank and those who rent its safety-deposit boxes is that of a lessor and lessee – NO, it is in the nature of bailor-bailee relationship. Ratio: It cannot be deemed as an ordinary lease because full and absolute possession of the boxes was never given to CA Agro. Under prevailing jurisprudence, it is in the nature of a special deposit. As such, the bank may be made liable if it is found that it was in breach of its obligation to keep whatever is stored inside safe (fraud, negligence, delay, etc.); the degree to be observed is that of a good father of a family (though as one of the parties is a bank it may be argued that extraordinary diligence should be observed). However, this was dismissed because it was not proven that the bank was in breach of its contractual obligation to keep the titles safe—it did not know about the agreement that both transacting parties must be present in order to withdraw the titles.

BISHOP of JARO v. DE LA PEÑA (1913) When the thing deposited is lost through fortuitous event, the depositary will not be held

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Facts: See checked in at the City Garden Hotel and left the key of his car with a hotel employee for the purpose of valet parking. The car was stolen and the insurance company after settling See’s claims proceeded against the hotel. Issue: WON Durban Apartments is liable for the loss of the car— YES Ratio: It is obvious that See deposited his vehicle for safekeeping with the staff of the hotel—the contract of deposit was perfected the moment See turned over his keys to the valet service staff.

CHAN v. MACEDA (2003) In order for a party claiming damages arising from a contract of deposit he must prove two things: 1. That a contract of deposit exists between him and the party he seeks to hold liable 2. That the things sought to be withdrawn were in the depositary’s possession at the time demand was made Facts: Maceda and Moreman entered into a building construction contract. Maceda bought various construction materials that Moreman deposited in the warehouse of the Chans. Moreman failed to construct the building within the period agreed upon so Maceda filed an action for rescission. While the case was pending, Maceda made demand upon Chans to return the deposited materials. The latter replied that Moreman had already withdrawn the materials. Maceda then sued them for damages.

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Issue: WON the Chans are liable for the loss of the materials because of Moreman’s withdrawal – NO Ratio: First, Bonifacio failed to prove the existence of a contract of deposit; if anything, it would have existed between the Chans and Moreman. Second, Maceda did not prove that the Chans still had possession of the materials when he made demand.

YHT REALTY v. CA (2005) Since the hotel industry is impressed with public interest and that the law creates necessary deposits between hotels and their clients, they (hotels) cannot exempt themselves from liability caused by mishandling the property of their guests through waivers and notices. Facts: McLoughlin deposited various amounts of money and jewelry in the safety deposit boxes of YHT hotel. Whatever he deposited would consistently be diminished upon subsequent inspection. He found out that the hotel staff had been allowing his companion/lover/tour guide to open the safety deposit box that was assigned exclusively to him. He sued the hotel for damages. Hotel tried to escape liability by pointing to the terms and conditions regarding the use of their safety deposit boxes that stated that it would not be liable for any loss incurred through the use of such. Issue: WON the hotel is liable for the loss of McLoughlin’s possessions – YES Ratio: If the hotel had exercised due diligence in taking care of McLoughlin’s property, then no loss would have occurred; two key system. Further, the waivers and notices that claim that the hotel is exempt from liability from the loss of things deposited are in contravention of the law and are void.

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IV. GUARANTY A. CO NCEPT

5. As to its scope and extent a. Definite—Guaranty limited to the principal obligation only, or to a specific portion thereof b. Indefinite or simple—Includes the principal obligation’s accessories and judicial costs

A R T . 2 0 4 7, C C By guaranty a person, called the guarantor, binds himself to the creditor to fulfill the obligation of the principal debtor in case the latter should fail to do so. If a person binds himself solidarily with the principal debtor, the provisions of Section 4, Chapter 3, Title I of this Book shall be observed. In such case the contract is called a suretyship. (1822a)

B. CHARACTERISTICS Characteristics (CUGSCAF) 1. 2. 3. 4. 5. 6.

A guarantor is a person who binds himself to the creditor to fulfill the obligation of the principal debtor. The guarantor ensures the solvency of the debtor through his promise to pay in case of default.

a. Consensual

Classification of guaranty A R T . 2 0 5 1, C C A guaranty may be conventional, legal or judicial, gratuitous, or by onerous title. It may also be constituted, not only in favor of the principal debtor, but also in favor of the other guarantor, with the latter's consent, or without his knowledge, or even over his objection. (1823) A R T . 2 0 5 5, C C A guaranty is not presumed; it must be express and cannot extend to more than what is stipulated therein. If it be simple or indefinite, it shall compromise not only the principal obligation, but also all its accessories, including the judicial costs, provided with respect to the latter, that the guarantor shall only be liable for those costs incurred after he has been judicially required to pay. (1827a)

Consensual Unilateral Gratutious Subsidiary and conditional Accessory Formal

No delivery of a thing is required to perfect the guaranty. The guarantor’s promise and the acceptance by the creditor is enough.

b. Unilateral It is unilateral because it only gives rise to a duty on the part of the guarantor, and it may be entered into even without the intervention of the principal debtor.

c. Gratuitous A R T . 2 0 4 8, C C A guaranty is gratuitous, unless there is a stipulation to the contrary. (n) Generally, guaranty is gratuitous, but the parties may stipulate otherwise.

d. Subsidiary & conditional Classification of guaranty 1. Guaranty in the broad sense a. Personal—Guarantee = credit given by person who guarantees fulfillment of principal debt b. Real—Property, movable or immovable is given to guarantee fulfillment

It takes effect only when the principal debtor fails in his obligation, and his property and legal remedies against him must first be exhausted before the guarantor may be made liable.

e. Accessory

2. As to its origin a. Conventional—Constituted by agreement of the parties b. Legal—Imposed by virtue of provision of law c. Judicial—Required by a court

The guaranty is dependent upon the existence of an obligation between the debtor and creditor, e.g. a loan, which is the principal contract.

3. As to consideration a. Gratuitous—Guarantor does not receive any price or remuneration b. Onerous—Guarantor receives valuable consideration

Art. 2055 provides that a guaranty must be express and its terms must be stipulated. Further, the Statute of Frauds mandates that a “special promise to answer for the debt of another” must be in writing, though there is no need that it appear in a public document.

4. As to the person guaranteed a. Single—Secures performance by the debtor of the principal obligation b. Double—Secures performance by the guarantor of a prior guaranty

C. ESSENTIAL REQ UISITES

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f.

Formal

1. Consent Consent to become a guarantor must be given by one with capacity.

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26 guarantees; and 4. Has not been convicted of a crime in the first instance involving dishonesty, or does not become insolvent Exception: if a specific person was designated as guarantor, then the creditor may not demand substitution.

2. Object A R T . 2 0 5 2, C C A guaranty cannot exist without a valid obligation. Nevertheless, a guaranty may be constituted to guarantee the performance of a voidable or an unenforceable contract. It may also guarantee a natural obligation. (1824a)

E. FO RM

A R T . 2 0 5 3, C C

A R T . 1 4 0 3, C C

A guaranty may also be given as security for future debts, the amount of which is not yet known; there can be no claim against the guarantor until the debt is liquidated. A conditional obligation may also be secured. (1825a)

The following contracts are unenforceable, unless they are ratified: (2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum, thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents: (b) A special promise to answer for the debt, default, or miscarriage of another;

The object of the guaranty is the performance of the principal obligation.

3. Consideration Art. 2048, supra Unless stipulated, a guaranty is generally gratuitous. Therefore, the consideration is the liberality of the guarantor. If onerous, the consideration is the compensation for the guaranty.

Art. 2055, supra A contract of guaranty must be in writing, but it need not be in a public instrument.

D. PARTIES A R T . 2 0 4 9, C C A married woman may guarantee an obligation without the husband's consent, but shall not thereby bind the conjugal partnership, except in cases provided by law. (n)

A R T . 2 0 5 6, C C One who is obliged to furnish a guarantor shall present a person who possesses integrity, capacity to bind himself, and sufficient property to answer for the obligation which he guarantees. The guarantor shall be subject to the jurisdiction of the court of the place where this obligation is to be complied with. (1828a) A R T . 2 0 5 7, C C If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent, the creditor may demand another who has all the qualifications required in the preceding article. The case is excepted where the creditor has required and stipulated that a specified person should be the guarantor. (1829a) Parties to the contract

Because it is generally gratuitous, as per Art. 2048, it is strictly construed against the creditor.

F. O BLIGATIO NS of the G U ARANTO R Art. 2047, supra The guarantor must fulfill the principal obligation.

1. Types of obligations that may be secured As to validity

As to period As to conditionality

1. Creditor and guarantor; or 2. Principal debtor and guarantor, with stipulation in favor of third party, who is the creditor The principal debtor is not necessary to the contract of guaranty.

2. Extent of obligations A R T . 2 0 5 4, C C A guarantor may bind himself for less, but not for more than the principal debtor, both as regards the amount and the onerous nature of the conditions. Should he have bound himself for more, his obligations shall be reduced to the limits of that of the debtor. (1826)

Qualifications of a guarantor 1. Integrity; 2. Capacity to bind himself; 3. Sufficient property to answer for obligation that he

APO ESPAÑOLA & CARLOS MARIN

Valid Voidable Unenforceable Natural Present debts, including past debts not yet paid Future debts not yet incurred/due, but demand can only be made if already liquidated Conditional Absolute

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The guarantor’s liability may be less than the principal debt, but cannot be more, or be subject to more onerous terms. If his liability is more, it shall be reduced to match the debtor’s.

3. Items covered Art. 2055, supra Items covered by guaranty 1. The principal obligation, or a portion thereof; and 2. If simple/indefinite, then also accessories and judicial costs.

Summary of time and place of payment Place designated in contract of guaranty; or Place designated in principal obligation After the creditor has exhausted all the When payment debtor’s property and resorted to all legal must be made remedies against him

Where payment must be made

G. EFFECTS of GUARANTY BETW EEN GUARANTO R & CREDITO R

1. Benefit of excussion a. Concept

4. Payment made without knowledge/against consent of debtor

A R T . 2 0 5 8, C C The guarantor cannot be compelled to pay the creditor unless the latter has exhausted all the property of the debtor, and has resorted to all the legal remedies against the debtor. (1830a)

A R T . 1 2 3 6, C C The creditor is not bound to accept payment or performance by a third person who has no interest in the fulfillment of the obligation, unless there is a stipulation to the contrary. Whoever pays for another may demand from the debtor what he has paid, except that if he paid without the knowledge or against the will of the debtor, he can recover only insofar as the payment has been beneficial to the debtor. (1158a)

A R T . 2 0 6 3, C C A compromise between the creditor and the principal debtor benefits the guarantor but does not prejudice him. That which is entered into between the guarantor and the creditor benefits but does not prejudice the principal debtor. (1835a)

A R T . 2 0 6 4, C C The guarantor of a guarantor shall enjoy the benefit of excussion, both with respect to the guarantor and to the principal debtor. (1836)

A R T . 1 2 3 7, C C Whoever pays on behalf of the debtor without the knowledge or against the will of the latter, cannot compel the creditor to subrogate him in his rights, such as those arising from a mortgage, guaranty, or penalty. (1159a)

Benefit of excussion Through excussion, the guarantor cannot be compelled to pay the creditor until the debtor’s property has been exhausted and all legal remedies have been resorted to. Sub-guarantors also enjoy the benefit of excussion of the principal debtor and the previous guarantor.

A R T . 2 0 5 0, C C If a guaranty is entered into without the knowledge or consent, or against the will of the principal debtor, the provisions of Articles 1236 and 1237 shall apply. (n)

Effects of payment without knowledge/consent 1. Guarantor may only recover amount insofar as his payment has been beneficial to the debtor; and 2. There is no subrogation.

b. Rationale This arises from the nature of guaranty as an accessory and subsidiary contract.

c. Requisites

5. Time & place of payment

For the guarantor to pay, the creditor must first:

A R T . 1 2 5 1, C C Payment shall be made in the place designated in the obligation. There being no express stipulation and if the undertaking is to deliver a determinate thing, the payment shall be made wherever the thing might be at the moment the obligation was constituted. In any other case the place of payment shall be the domicile of the debtor. If the debtor changes his domicile in bad faith or after he has incurred in delay, the additional expenses shall be borne by him. These provisions are without prejudice to venue under the Rules of Court. (1171a)

APO ESPAÑOLA & CARLOS MARIN

1. Exhaust all of the principal debtor’s properties to satisfy the obligation; and 2. Resort to all legal remedies against him.

For guarantor to benefit from excussion, he must: 1. Set it up against the creditor when demand is made upon him; and 2. Point out to the creditor properties of the debtor in the Philippines sufficient to cover the debt.

d. When unavailable A R T . 2 0 5 9, C C The excussion shall not take place: (1) If the guarantor has expressly renounced it;

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(2) If he has bound himself solidarily with the debtor; (3) In case of insolvency of the debtor; (4) When he has absconded, or cannot be sued within the Philippines unless he has left a manager or representative; (5) If it may be presumed that an execution on the property of the principal debtor would not result in the satisfaction of the obligation. (1831a)

2.

A R T . 2 0 6 0, C C In order that the guarantor may make use of the benefit of exclusion, he must set it up against the creditor upon the latter's demand for payment from him, and point out to the creditor available property of the debtor within Philippine territory, sufficient to cover the amount of the debt. (1832)

3. 4.

5.

A R T . 2 0 6 1, C C The guarantor having fulfilled all the conditions required in the preceding article, the creditor who is negligent in exhausting the property pointed out shall suffer the loss, to the extent of said property, for the insolvency of the debtor resulting from such negligence. (1833a)

2. Benefit of division among several guarantors a. Concept

When excussion is unavailable 1. Guarantor expressly renounces it; 2. Debtor binds himself solidarily (i.e. enters a suretyship); 3. Debtor is insolvent; 4. Debtor has absconded or cannot be sued within the PH (unless he has left a manager/representative); 5. Execution on principal debtor’s property would not satisfy the obligation; 6. Guarantor fails to set up the benefit of excussion and point out debtor’s properties in the PH sufficient to cover the debt; 7. The guarantor has set up the benefit of excussion, but the creditor is negligent in exhausting the debtor’s property; and 8. Where the guarantor is a judicial bondsman.

A R T . 2 0 6 5, C C Should there be several guarantors of only one debtor and for the same debt, the obligation to answer for the same is divided among all. The creditor cannot claim from the guarantors except the shares which they are respectively bound to pay, unless solidarity has been expressly stipulated. The benefit of division against the co-guarantors ceases in the same cases and for the same reasons as the benefit of excussion against the principal debtor. (1837)

b. Rationale The obligation of a guarantor with respect to his co-guarantors is not subsidiary, but direct, and does not depend on their solvency or insolvency.

e. Typical procedure A R T . 2 0 6 2, C C In every action by the creditor, which must be against the principal debtor alone, except in the cases mentioned in Article 2059, the former shall ask the court to notify the guarantor of the action. The guarantor may appear so that he may, if he so desire, set up such defenses as are granted him by law. The benefit of excussion mentioned in Article 2058 shall always be unimpaired, even if judgment should be rendered against the principal debtor and the guarantor in case of appearance by the latter. (1834a)

c. Availability of benefit Limitations to availability of benefit of division When available When unavailable Solidarity has been expressly stipulated When there are several In the same cases and for the guarantors of only one debtor same reasons that the benefit for the same debt of excussion may cease to be available

3. Effect of compromise A R T . 2 0 6 3, C C

Procedure 1. Suit by creditor against debtor - Generally against the debtor, unless the guarantor has no benefit of excussion - Guarantor must be notified in every case - He may set up defenses granted by law

APO ESPAÑOLA & CARLOS MARIN

- However, lack of notice does not release him from his obligation - Neither does non-appearance impair the benefit of excussion Judgment against debtor - Judgment does not impair/remove excussion - Writ of execution shall issue against the debtor’s properties - If there is a notice of satisfaction, then it means that the debt has been sufficiently covered Exhaustion of debtor’s properties Demand against guarantor - If writ of execution shows that the debt has not been covered, demand may be made against the guarantor Guarantor sets up benefit of excussion - The guarantor must set up excussion - He must point out the debtor’s property in the PH that would sufficiently cover the debt

A compromise between the creditor and the principal debtor benefits the guarantor but does not prejudice him. That which is entered into between the guarantor and the creditor benefits but does not prejudice the principal debtor. (1835a)

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Between whom Creditor & principal debtor Creditor & guarantor

29

Effect of compromise Effect Benefits the guarantor, but does not prejudice him Benefits the principal debtor, but does not prejudice him

H. EFFECTS of GUARANTY BETW EEN GUARANTO R & DEBTO R Effects of payment under certain conditions Effect on guarantor May recover amount which debtor Without debtor’s benefited from knowledge/consent No subrogation occurs Debtor may enforce against him all No notice given to defenses w/c could have been set up debtor against creditor at time of payment Cannot be reimbursed until maturity Early payment date, except if debtor ratifies payment No remedy against debtor, only against creditor, except if: Double payment a. Guaranty gratuitous; (guarantor & debtor) b. Fortuitous event prevents notice to principal debtor; AND c. Creditor is insolvent.

Right to subrogation

Not available to guarantor

Hence, payment with the debtor’s knowledge and consent entitles the guarantor to TIDES = total of debt + indemnity + damages + expenses + subrogation.

Condition of payment

1. Effect of payment with & without debtor’ s knowledge/consent

2. Effect of payment without notifying debtor A R T . 2 0 6 8, C C If the guarantor should pay without notifying the debtor, the latter may enforce against him all the defenses which he could have set up against the creditor at the time the payment was made. (1840)

3. Effect of early payment A R T . 2 0 6 9, C C If the debt was for a period and the guarantor paid it before it became due, he cannot demand reimbursement of the debtor until the expiration of the period unless the payment has been ratified by the debtor. (1841a)

4. Effect of repeat payment

A R T . 2 0 6 6, C C

A R T . 2 0 7 0, C C

The guarantor who pays for a debtor must be indemnified by the latter. The indemnity comprises: (1) The total amount of the debt; (2) The legal interests thereon from the time the payment was made known to the debtor, even though it did not earn interest for the creditor; (3) The expenses incurred by the guarantor after having notified the debtor that payment had been demanded of him; (4) Damages, if they are due. (1838a)

If the guarantor has paid without notifying the debtor, and the latter not being aware of the payment, repeats the payment, the former has no remedy whatever against the debtor, but only against the creditor. Nevertheless, in case of a gratuitous guaranty, if the guarantor was prevented by a fortuitous event from advising the debtor of the payment, and the creditor becomes insolvent, the debtor shall reimburse the guarantor for the amount paid. (1842a)

5. Right to proceed against debtor before payment

A R T . 2 0 6 7, C C The guarantor who pays is subrogated by virtue thereof to all the rights which the creditor had against the debtor. If the guarantor has compromised with the creditor, he cannot demand of the debtor more than what he has really paid. (1839)

A R T . 2 0 7 1, C C

Effects of payment vis-à-vis knowledge & consent Payment with Payment without knowledge & consent knowledge & consent Must be indemnified: 1. Total amount of Right to May only recover debt; indemnity amount which the 2. Legal interests (TIDE) debtor benefited from counted from the time debtor was

APO ESPAÑOLA & CARLOS MARIN

notified of payment; 3. Damages; and 4. Expenses after debtor was notified. Available to guarantor

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The guarantor, even before having paid, may proceed against the principal debtor: (1) When he is sued for the payment; (2) In case of insolvency of the principal debtor; (3) When the debtor has bound himself to relieve him from the guaranty within a specified period, and this period has expired; (4) When the debt has become demandable, by reason of the expiration of the period for payment; (5) After the lapse of ten years, when the principal obligation has no fixed period for its maturity, unless it be of such nature that it cannot be extinguished except within a period longer than

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ten years; (6) If there are reasonable grounds to fear that the principal debtor intends to abscond; (7) If the principal debtor is in imminent danger of becoming insolvent. In all these cases, the action of the guarantor is to obtain release from the guaranty, or to demand a security that shall protect him from any proceedings by the creditor and from the danger of insolvency of the debtor. (1834a)

If any of the guarantors should be insolvent, his share shall be borne by the others, including the payer, in the same proportion. The provisions of this article shall not be applicable, unless the payment has been made by virtue of a judicial demand or unless the principal debtor is insolvent. (1844a)

A R T . 2 0 7 4, C C In the case of the preceding article, the co-guarantors may set up against the one who paid, the same defenses which would have pertained to the principal debtor against the creditor, and which are not purely personal to the debtor. (1845)

Summary of rules on right against debtor General rule: Remedy only available to guarantor after he has paid Exceptions: 1. Guarantor is sued for payment; 2. Principal debtor becomes insolvent; 3. Guaranty is for a certain period and period has already expired, without the debtor paying; 4. Period for payment has expired, making the debt due & demandable; 5. Lapse of 10 years, if there is no fixed period, except if the nature of the contract is not extinguished within 10 years; 6. Reasonable ground to fear that principal debtor intends to abscond; and 7. Imminent danger of principal debtor’s insolvency

Summary of co-guarantors’ obligation General rule: Co-guarantors’ obligation is joint Exception: Solidary if— 1. So stipulated 2. Payment was made pursuant to judicial demand 3. Principal debtor has become insolvent

2. Effect of insolvency of a coguarantor Art. 2073 provides that in case of an insolvent co-guarantor, his share shall be borne by the others, including the one who made payment, in proportion.

Remedies the guarantor may request These are alternative remedies: 1. Obtain release from the guaranty (essentially, with the creditor’s consent); or 2. Ask for a security for his protection.

3. Effect of insolvency of subguarantor A R T . 2 1 8 3, C C A sub-guarantor, in case of the insolvency of the guarantor for whom he bound himself, is responsible to the co-guarantors in the same terms as the guarantor. (1846)

6. Effect of request made by a person for guarantee of debt of third person

J. EXTINGUISHM ENT of GUARANTY; DEFENSES AVAILABLE to GUARANTO R

A R T . 2 0 7 2, C C If one, at the request of another, becomes a guarantor for the debt of a third person who is not present, the guarantor who satisfies the debt may sue either the person so requesting or the debtor for reimbursement. (n)

Art. 1231, supra Causes for extinguishment of the guaranty

Whom guarantor may proceed against If requested to become a guarantor for an absent third person, the guarantor may proceed against: 1. The absent principal debtor; or 2. The person who made such request.

I.

EFFECTS of GUARANTY AM O NG COGUARANTO RS

1. Effect of payment by a coguarantor A R T . 2 0 7 3, C C

a. Payment/performance

When there are two or more guarantors of the same debtor and for the same debt, the one among them who has paid may demand of each of the others the share which is proportionally owing from him.

APO ESPAÑOLA & CARLOS MARIN

1. Payment/performance; 2. Dacion en pago; 3. Loss of the thing due; 4. Impossibility of service; 5. Consignation; 6. Condonation; 7. Merger/confusion; 8. Compensation; 9. Novation; 10. Extension; 11. Failure of subrogation; and 12. Release.

A R T . 1 2 3 2, C C Payment means not only the delivery of money but

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also the performance, in any other manner, of an obligation. (n)

g. Merger or confusion

b. Dacion en pago

A R T . 1 2 7 5, C C The obligation is extinguished from the time the characters of creditor and debtor are merged in the same person. (1192a)

A R T . 2 0 7 7, C C If the creditor voluntarily accepts immovable or other property in payment of the debt, even if he should afterwards lose the same through eviction, the guarantor is released. (1849)

A R T . 1 2 7 6, C C Merger which takes place in the person of the principal debtor or creditor benefits the guarantors. Confusion which takes place in the person of any of the latter does not extinguish the obligation. (1193)

Payment is usually made in money. But any substitute paid in lieu of money that is accepted by the creditor extinguishes the obligation and, consequently, the guaranty.

Effect of merger or confusion Effect Principal obligation is extinguished; Debtor & creditor guaranty also extinguished Principal obligation remains, but Creditor & guarantor guaranty is extinguished Principal obligation remains, but the Debtor & guarantor guaranty is extinguished

c. Loss of the thing due

Parties merged

A R T . 1 2 6 2, C C An obligation which consists in the delivery of a determinate thing shall be extinguished if it should be lost or destroyed without the fault of the debtor, and before he has incurred in delay. When by law or stipulation, the obligor is liable even for fortuitous events, the loss of the thing does not extinguish the obligation, and he shall be responsible for damages. The same rule applies when the nature of the obligation requires the assumption of risk. (1182a)

One cannot guarantee his own debt; thus, merger extinguishes the guaranty if the guarantor’s personality merges with either the creditor or the personal debtor.

h. Compensation

The principal debtor’s obligation must have been to deliver a thing, and loss must be without debtor’s fault or negligence.

A R T . 1 2 7 9, C C In order that compensation may be proper, it is necessary: (1) That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other; (2) That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated; (3) That the two debts be due; (4) That they be liquidated and demandable; (5) That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor. (1196)

d. Impossibility of service A R T . 1 2 6 6, C C The debtor in obligations to do shall also be released when the prestation becomes legally or physically impossible without the fault of the obligor. (1184a) The impossibility of fulfilling the principal obligation is cause for its extinguishment, and consequently also extinguishes the guaranty.

e. Consignation A R T . 1 2 6 1, C C

A R T . 1 2 8 0, C C

If, the consignation having been made, the creditor should authorize the debtor to withdraw the same, he shall lose every preference which he may have over the thing. The co-debtors, guarantors and sureties shall be released. (1181a)

f.

Notwithstanding the provisions of the preceding article, the guarantor may set up compensation as regards what the creditor may owe the principal debtor. (1197)

i.

Condonation

A R T . 2 1 8 3, C C

A R T . 1 2 7 3, C C The renunciation of the principal debt shall extinguish the accessory obligations; but the waiver of the latter shall leave the former in force. (1190) A R T . 2 0 7 8, C C A release made by the creditor in favor of one of the guarantors, without the consent of the others, benefits all to the extent of the share of the guarantor to whom it has been granted. (1850)

APO ESPAÑOLA & CARLOS MARIN

Novation

When the principal obligation is extinguished in consequence of a novation, accessory obligations may subsist only insofar as they may benefit third persons who did not give their consent. (1207) There must be a material alteration for novation to extinguish the contract of guaranty, i.e. that the obligations therein become more onerous or burdensome to the guarantor.

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j.

Extension A R T . 2 0 8 2, C C The bondsman who is to be offered in virtue of a provision of law or of a judicial order shall have the qualifications prescribed in Article 2056 and in special laws. (1854a)

A R T . 2 0 7 9, C C An extension granted to the debtor by the creditor without the consent of the guarantor extinguishes the guaranty. The mere failure on the part of the creditor to demand payment after the debt has become due does not of itself constitute any extention of time referred to herein. (1851a)

A R T . 2 0 8 3, C C If the person bound to give a bond in the cases of the preceding article, should not be able to do so, a pledge or mortgage considered sufficient to cover his obligation shall be admitted in lieu thereof. (1855)

This provision contemplates an extension of the period of the principal obligation without the guarantor’s consent.

A R T . 2 0 8 4, C C

The extension must be based on some new agreement between the creditor and the principal debtor—mere failure or neglect on the creditor’s part to enforce payment does not constitute an extension.

A judicial bondsman cannot demand the exhaustion of the property of the principal debtor. A sub-surety in the same case, cannot demand the exhaustion of the property of the debtor of the surety.

k. Failure of subrogation

Nature of judicial bonds

A R T . 2 0 8 0, C C The guarantors, even though they be solidary, are released from their obligation whenever by some act of the creditor they cannot be subrogated to the rights, mortgages, and preference of the latter. (1852)

The judicial bond is an “undertaking sufficiently secured” (the de Leons). All bonds are contractual, resulting from a meeting of the minds, but judicial bonds are a special class of contracts of guaranty, since they are judicially ordered.

The failure of subrogation must be due to the creditor’s fault. This provision applies even though the guarantors are solidary.

l.

Who is a bondsman? A bondsman binds himself solidarily with the principal debtor: he is, in essence, a surety offered by virtue of a provision of law or a judicial order. As a surety, his liability is primary and solidary, and he is not entitled to the benefit of excussion. Nonetheless, he must still possess the qualifications of a guarantor required by Art. 2056.

Release A R T . 2 0 7 8, C C

A release made by the creditor in favor of one of the guarantors, without the consent of the others, benefits all to the extent of the share of the guarantor to whom it has been granted. (1850)

M . DISTINGUISHED FRO M O THER CO NTRACTS/TERMS

K. DEFENSES THE GUARANTO R MAY RAISE

a. Distinguished from warranty

A R T . 2 0 8 1, C C The guarantor may set up against the creditor all the defenses which pertain to the principal debtor and are inherent in the debt; but not those that are personal to the debtor. (1853)

Guaranty vs. warranty

Defenses such as prescription, remission, illegality, and payment may be raised by the guarantor, since they are defenses inherent in the obligation.

Guaranty Contract by which a person is bound to another for the fulfillment of a promise of a principal debtor

b. Distinguished from suretyship

But the defense of the debtor’s incapacity, e.g. through minority, may not be raised, since it is personal to the debtor, and goes into his capacity to give consent. The defense of fraud or vitiated consent, however, is not a personal defense. Though it seems to inquire into the consent of the debtor, the defense of vitiated consent presumes that there was capacity to give consent, but the act of giving consent was defective. Thus, fraud may also be raised as a defense.

APO ESPAÑOLA & CARLOS MARIN

Warranty Undertaking that the title, quality, or quantity of the object of the contract is what it has been represented to be

Definition Applicable law Nature of undertaking

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Guaranty vs. suretyship Guaranty Suretyship Surety is answerable to Guarantor is bound to the obligee for the another for the debt, default or fulfillment of a promise miscarriage of a of a principal debtor principal/obligor Provisions on solidary Provisions on guaranty obligations Subsidiary and Solidary and primary accessory

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A R T . 1 2 1 6, C C The creditor may proceed against any one of the solidary debtors or some or all of them simultaneously. The demand made against one of them shall not be an obstacle to those which may subsequently be directed against the others, so long as the debt has not been fully collected. (1144a)

A R T . 1 2 1 7, C C Payment made by one of the solidary debtors extinguishes the obligation. If two or more solidary debtors offer to pay, the creditor may choose which offer to accept. He who made the payment may claim from his co-debtors only the share which corresponds to each, with the interest for the payment already made. If the payment is made before the debt is due, no interest for the intervening period may be demanded. When one of the solidary debtors cannot, because of his insolvency, reimburse his share to the debtor paying the obligation, such share shall be borne by all his co-debtors, in proportion to the debt of each. (1145a) A R T . 1 2 1 8, C C Payment by a solidary debtor shall not entitle him to reimbursement from his co-debtors if such payment is made after the obligation has prescribed or become illegal. (n)

A R T . 1 2 1 9, C C The remission made by the creditor of the share which affects one of the solidary debtors does not release the latter from his responsibility towards the codebtors, in case the debt had been totally paid by anyone of them before the remission was effected. (1146a)

respect to those which personally belong to the others, he may avail himself thereof only as regards that part of the debt for which the latter are responsible. (1148a)

TUPAZ v. CA (2005) The general rule is that a corporation has a juridical personality distinct and separate from its directors, officers, and employees. Hence, debts incurred by those individuals in their capacity as corporate officers will hold only the corporation liable therefor. The exceptions are when they expressly stipulate assuming liability for the corporation’s debts and when the corporation is being used as a shield for fraud and misrepresentation. Facts: Officers of El Oro signed trust receipts on behalf of the company in favor of BPI. They defaulted in their obligations and while they were acquitted of estafa, they were held solidarily liable with the corporation for the latter’s debts. Issue: WON the petitioners, in their capacity as corporate officers, can be made solidarily liable for the corporation’s liabilities – NO Ratio: [see doctrine] the Court held that Tupaz may be held liable under the second trust receipt because he signed in his personal capacity. His liability, however, is that of a guarantor and not as surety as per the terms of the agreement that he signed. He is solidary liable as regards the other guarantors but with with regard to the corporation. Lastly, excussion is not a pre-requisite to secure judgment from a guarantor. Judgment may be rendered against a guarantor prior to exhausting the property of the principal debtor. Note, also, that excussion may be waived.

ZOBEL, INC. v. CA (1998)

A R T . 1 2 2 0, C C

Guaranty vs. surety Guaranty

The remission of the whole obligation, obtained by one of the solidary debtors, does not entitle him to reimbursement from his co-debtors. (n)

A R T . 1 2 2 1, C C If the thing has been lost or if the prestation has become impossible without the fault of the solidary debtors, the obligation shall be extinguished. If there was fault on the part of any one of them, all shall be responsible to the creditor, for the price and the payment of damages and interest, without prejudice to their action against the guilty or negligent debtor. If through a fortuitous event, the thing is lost or the performance has become impossible after one of the solidary debtors has incurred in delay through the judicial or extrajudicial demand upon him by the creditor, the provisions of the preceding paragraph shall apply. (1147a)

Definition

When entered & consideration of the contract

A R T . 1 2 2 2, C C A solidary debtor may, in actions filed by the creditor, avail himself of all defenses which are derived from the nature of the obligation and of those which are personal to him, or pertain to his own share. With

APO ESPAÑOLA & CARLOS MARIN

Knowledge of default

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A collateral undertaking to pay the debt of another in case the latter does not pay the debt Guarantor’s separate undertaking, principal does not join Entered into before or after that of the principal and is often supported on a separate consideration from that supporting the contract of the principal Original contract of the principal is not his contract, and he is

Surety An accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation if the debtor does not

Bound with the principal by the same instrument, executed at the same time, and on the same consideration

Original promissor and debtor from the beginning and is

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Discharge

Bottomline

Often discharged by the mere indulgence of the creditor to the principal, and is usually not liable unless notified of the default of the principal While a guarantor is the insurer of the solvency of the debtor and thus binds himself to pay if the principal is unable to pay

34 ordinarily held to know every default of his principal Usually not discharged, either by mere indulgence of the creditor to the principal, or by want of notice of the default of the principal, no matter how much he may be injured thereby Surety is distinguished from a guaranty in that a surety is the insurer of the debt, and he obligates himself to pay if the principal does not pay

Table by Carlos Pagdanganan. Thanks, buddy!

** As per sir De Leon: Even if excussion is waived by the guarantor, the creditor would still have to make demand upon the debtor before pursuing the guarantor. Thus, waiving excussion does not convert the contract into a suretyship. Facts: Sps. Claveria obtained a loan from the bank in order to purchase vessels over which chattel mortgages were constituted to secure payment. Also, a continuing guaranty was executed in favor of Solidbank.; Zobel was such “guarantor”. Upon defaulting, the bank sought to collect the remaining amount through the properties mortgaged and Zobel. Petitioner attempted to invoke Art. 2080 because the bank did not register the chattel mortgages (as a result, he could not be subrogated to the rights of the previous debtor if they paid). Bank claimed that registration was immaterial because Zobel was a surety.

Issue: WON ITM was a surety – YES Ratio: Upon perusal of the contract, the Court found that its terms unambiguously made ITM a surety. As a surety is primarily liable for the debt incurred by IFC.

PHILIPPINE BLOOMING MILLS v. CA (2003) A surety is not relieved of his obligation for the debts incurred by the principal debtor just because the latter has been placed under SEC receivership. The rationale stems from the personal liability of a surety and the separate juridical personality of the corporation. While creditors may not pursue the corporation placed under receivership, they may proceed against sureties who remain to be liable in their personal capacity. Facts: Ching, as VP of PBM, signed a deed of suretyship in favor of the latter in his personal capacity for present and future indebtedness of the same. PBM encountered financial difficulties and was placed under SEC receivership. TRB, one of PBM’s creditors, proceeded against Ching. Ching disclaimed liability on the strength of the fact that PBM, the principal debtor, was under receivership. Issue: WON Ching is still liable as surety – YES Ratio: SEC only took over the properties of the corporation and not the properties of its individual sureties. As such, TRB could proceed against Ching who had a personality distinct and separate from that of PBM. Further, he is liable for the entire amount owed by PBM and not the amount stated in the latter’s rehabilitation plan.

ESCAÑO v. ORTIGAS (2007)

Issue: WON the contract between them was a surety – YES Ratio: Notwithstanding the denomination of the contract as a continuing guaranty, the Court found that its provisions created a suretyship. Under its terms the Zobel was explicitly obligated as surety. The title or name given to a contract is not controlling when its provisions are in the nature of another contract.

IFC v. IMPERIAL TEXTILE MILLS (2005) The use of the word “guaranty” in the title of a contract and within its provisions does not ipso facto make the party thereto a guarantor. For example, when the word “guaranty” is qualified by the term “jointly and severally”, it becomes a suretyship. Particular attention must be paid to all the provisions of an agreement.

Absent express stipulation, the liability of persons who secure the debt of another is joint. Facts: Falcon Materials borrowed 320,000usd from PDCP which was secured by several of its stockholders. These shareholders sold their shares to the petitioners under the condition that the purchasers would assume liability over Falcon’s debts—they executed a document wherein the petitioners were identified as sureties. Falcon defaulted and PDCP proceeded against the supposed sureites. The shareholders all executed compromise arguments. Ortigas then brought suit in order to recover from the other sureties what he recovered (he ended up paying the most between all of them). Issue: WON the obligation is joint and several – NO

Facts: ITM served as the “guarantor” of PPIC with regard to a loan extended to the latter by IFC. PPIC defaulted in its payments so IFC proceeded against ITM when the proceeds from the sale of the mortgaged properties proved to be insufficient to cover the entirety of the debt. ITM pointed to the repeated use of

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the word guaranty in its contract and said that it was only subsidiarily liable.

Ratio: Under Art. 1207 of the CC, solidary liability between creditors exists only when explicitly stipulated or when the nature of the obligation requires solidary liability. No such express stipulation was present in the agreement. The term sureties,

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though it appeared multiple times throughout the agreement, is not sufficient to satisfy the explicit provision required by law.

AGLIBOT v. SANTIA (2012) Facts: Santia loaned P2.5M to PLCC which was guaranteed by Aglibot by issuing 11 post-dated personal checks. The checks were dishonored and Aglibot and PLCC failed to pay upon Santia’s demand. As a result, Santia initiated 11 cases for violation of BP 22 against the principal debtor and its guarantor. CA acquitted Aglibot but held her civilly liable for the debt of PLCC. Aglibot claimed that she was a guarantor tried to avail of excussion Issue: WON she is a guarantor and thus entitled to excussion – NO Ratio: Under Art. 1403(2)(b), an agreement wherein one agrees to answer for the indebtedness of another must appear in a note or memorandum; unenforceable otherwise. Further, Art. 2055 that contracts of guaranty are not presumed but must be express. Aglibot has failed to show any written proof of the contract that establishes her as surety. Under the law, she is considered an accommodation party and the nature of an accommodation party’s liability is as surety. It is immediate and direct. The act of issuing post-dating checks and the absence of a written agreement to limit her liability as guarantor, when taken together, make Aglibot personally and solidarily liable for the debts of Santia. ** An accommodation party is not released by an extension of the period granted to the principal debtor. He may avail of it but he may not use the same as basis for extinguishing his liability.

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V. PLEDGE & MORTGAGE A. INTRO DUCTIO N Pledge and mortgage are both real guaranties, where property is given in order to secure an obligation. The remedy of a creditor against a debtor who fails to pay is the foreclosure of the thing and the application of its proceeds to the outstanding obligation.

1. Essential requisites A R T . 2 0 8 5, C C The following requisites are essential to the contracts of pledge and mortgage: (1) That they be constituted to secure the fulfillment of a principal obligation; (2) That the pledger or mortgagor be the absolute owner of the thing pledged or mortgaged; (3) That the persons constituting the pledge or mortgage have the free disposal of their property, and in the absence thereof, that they be legally authorized for the purpose. Third persons who are not parties to the principal obligation may secure the latter by pledging or mortgaging their own property. (1857)

Kinds of obligations that may be secured Valid As to validity Voidable Unenforceable Pure As to conditionality Conditional (suspensive or resolutory) Present obligations As to time Future obligations, if accurately described Civil obligations As to basis Natural obligations

b. Pledgor/mortgagor absolute owner Because the remedy of a creditor is a foreclosure sale, the debtor who gives the property in pledge or mortgage must have capacity to transfer ownership.

What is the consequence if the pledgor or mortgagor is not the absolute owner? The pledge or mortgage is void, without prejudice to the pledgor or mortgagor’s possible liability for estafa, because of his misrepresentation. The exception is a mortgagee in good faith, who relies on a Torrens title given by the mortgagor who is not the rightful owner, or has no valid title to the property. In this case, the mortgagee is still entitled to protection.

A R T . 2 0 8 6, C C The provisions of Art. 2052 are applicable to a pledge or mortgage. (n)

c. Free disposal

A R T . 2 0 8 7, C C It is also of the essence of these contracts that when the principal obligation becomes due, the things in which the pledge or mortgage consists may be alienated for the payment to the creditor. (1858)

Plege/mortgage being an act of strict ownership, the pledgor/mortgagor must have capacity to make a disposition of the property. Free disposal means that the property must not be subject to any claim of a third person.

Essential requisites of pledge/mortgage

2. Prohibitions against appropriation

1. It must be constituted to secure the fulfillment of a principal obligation; 2. The pledgor/mortgagor must be the absolute owner of the thing pledged/mortgaged; and 3. The pledgor/mortgagor must have free disposal of the thing or legal authority therefor.

a. Rationale The reason for the prohibition is that the amount of the loan is ordinarily much less than the real value of the thing pledged or mortgaged.

a. Secure a principal obligation Pledge and mortgage are accessory contracts constituted by either the debtor or a third person, in order to secure the debtor’s principal obligation.

A R T . 2 0 5 2, C C A guaranty cannot exist without a valid obligation. Nevertheless, a guaranty may be constituted to guarantee the performance of a voidable or an unenforceable contract. It may also guarantee a natural obligation. (1824a)

A R T . 2 0 8 8, C C The creditor cannot appropriate the things given by way of pledge or mortgage, or dispose of them. Any stipulation to the contrary is null and void. (1859a)

A R T . 2 1 1 2, C C The creditor to whom the credit has not been satisfied in due time, may proceed before a Notary Public to the sale of the thing pledged. This sale shall be made at a public auction, and with notification to the debtor and the owner of the thing pledged in a proper case, stating the amount for which the public sale is to be held. If at the first auction the thing is not sold, a second one with the same formalities shall be held; and if at the second auction there is no sale either, the creditor may appropriate the thing pledged. In this case he shall be obliged to give an acquittance for his

Art. 2086, supra A R T . 2 0 9 1, C C The contract of pledge or mortgage may secure all kinds of obligations, be they pure or subject to a suspensive or resolutory condition. (1861)

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b. General rule & exception

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entire claim.

affected by the fact that the debtors are not solidarily liable. (n)

Pactum commissorium is when the creditor-pledgee/mortgagee automatically appropriates the property given, without foreclosure. A stipulation allowing it is forbidden by law and is void. The default of the debtor-pledgor/mortgagor in his obligation does not give the creditor-pledgee/mortgagee a right to automatically appropriate the property given. If he wants to secure the title to the property, he must buy it in a foreclosure sale. The only exception is provided by Art. 2112, where if a thing given in pledge is not sold after two foreclosure sales, the creditor may appropriate it.

c. Requisites 1. There should be a pledge, mortgage, or antichresis of property by way of security for the payment of the principal obligation; and 2. There should be a stipulation for an automatic appropriation by the creditor of the property in the event of non-payment of the obligation within the stipulated period.

Rules on indivisibility Every portion of the property is A single thing is given answerable for the whole obligation All of them are liable for the debt Even when only a part of the debt remains unpaid, all of the things are liable for the balance Several things are Until the debt has been fully paid, the given debtor cannot ask for the release of one or some of the things given or the proportionate extinguishment of the pledge or mortgage The debtor’s heir who has paid part of the debt cannot ask for the Debtor’s heir proportionate extinction of the pledge or mortgage The creditor’s heir who has received his share of the debt cannot return the Creditor’s heir pledge or cancel the mortgage if the debt is not completely satisfied Exceptions 1. If several things are given, and each of them guarantees only a determinate portion of the credit; 2. If only a portion of the loan was released; and 3. If there was failure of consideration; and 4. If a third party to the debt gives an accommodation pledge or mortgage, such that there was no debtor-creditor relationship.

d. Permissible stipulations 1. Modification of original contract, by subsequent agreement of the parties; 2. Voluntary cession of the property by the debtor, which amounts to a novation of the original contract and a voluntary sale; and 3. Promise by the mortgagor to assign or sell the property.

4. Promise to constitute a pledge or mortgage

3. Indivisibility of pledge & mortgage

A R T . 2 0 9 2, C C A promise to constitute a pledge or mortgage gives rise only to a personal action between the contracting parties, without prejudice to the criminal responsibility incurred by him who defrauds another, by offering in pledge or mortgage as unencumbered, things which he knew were subject to some burden, or by misrepresenting himself to be the owner of the same. (1862)

A R T . 2 0 8 9, C C A pledge or mortgage is indivisible, even though the debt may be divided among the successors in interest of the debtor or of the creditors. Therefore, the debtor’s heir who has paid a part of the debt cannot ask for the proportionate extinguishment of the pledge or mortgage as long as the debt is not completely satisfied. Neither can the creditor's heir who received his share of the debt return the pledge or cancel the mortgage, to the prejudice of the other heirs who have not been paid. From these provisions is expected the case in which, there being several things given in mortgage or pledge, each one of them guarantees only a determinate portion of the credit. The debtor, in this case, shall have a right to the extinguishment of the pledge or mortgage as the portion of the debt for which each thing is specially answerable is satisfied. (1860)

A promise to constitute a pledge or mortgage does not create a real right over the property. There is only a personal right, or a right of action to compel that the pledge or mortgage be constituted, but no actual pledge or mortgage is created yet. The mortgagor may also be held liable for estafa under the Revised Penal Code, if he pretends to be the owner of real property and conveys, sells, encumbers, or mortgages said property, or dispose of property as unencumbered with knowledge that it is encumbered.

A R T . 2 0 9 0, C C The indivisibility of a pledge or mortgage is not

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B. PLEDGE

A pledge requires that it be set forth in a public instrument in order to be effective against third persons.

1. Concept Art. 2085, supra Art. 2087, supra

d. Subsidiary

In a contract of pledge, a debtor or third person delivers movable property or an incorporeal right to a creditor or third person, in order to secure the fulfillment of a principal obligation.

A R T . 2 1 2 1, C C Pledges created by operation of law, such as those referred to in Articles 546, 1731, and 1994, are governed by the foregoing articles on the possession, care and sale of the thing as well as on the termination of the pledge. However, after payment of the debt and expenses, the remainder of the price of the sale shall be delivered to the obligor. (n)

e. Unilateral The obligations of a pledge are imposed only on the pledgee. The pledgor only incurs obligations under special circumstances.

f.

g. Gratuitous or onerous

2. Characteristics

It is gratuitous if given by a third person. It is onerous if given by the debtor, because the consideration for the creditor’s acceptance is the payment of the principal obligation.

3. Essential requisites

Characteristics (Raf sung, “O!”) (Hehe) Real Accessory Formal Subsidiary Unilateral Nominate Gratuitous or onerous

a. Consent The pledgor must have capacity to give consent to a contract.

b. Object A R T . 2 0 9 4, C C All movables which are within commerce may be pledged, provided they are susceptible of possession. (1864)

a. Real A R T . 1 3 1 6, C C Real contracts, such as deposit, pledge and commodatum, are not perfected until the delivery of the object of the obligation. (n)

A R T . 2 0 9 5, C C Incorporeal rights, evidenced by negotiable instruments, bills of lading, shares of stock, bonds, warehouse receipts and similar documents may also be pledged. The instrument proving the right pledged shall be delivered to the creditor, and if negotiable, must be indorsed. (n)

Art. 2092, supra A R T . 2 0 9 3, C C In addition to the requisites prescribed in Article 2085, it is necessary, in order to constitute the contract of pledge, that the thing pledged be placed in the possession of the creditor, or of a third person by common agreement. (1863)

A R T . 4 1 6, C C

Delivery is required for a pledge to be effective. However, a consensual contract to pledge is enforceable between the parties.

b. Accessory The purpose of a pledge is that it secures a principal obligation. It is an accessory contract whose validity and extinguishment depends upon the principal obligation.

The following things are deemed to be personal property: (1) Those movables susceptible of appropriation which are not included in the preceding article; (2) Real property which by any special provision of law is considered as personal property; (3) Forces of nature which are brought under control by science; and (4) In general, all things which can be transported from place to place without impairment of the real property to which they are fixed. (335a)

A R T . 4 1 7, C C The following things are also considered as personal property: (1) Obligations and actions which have for their object movables or demandable sums; and

Please see page 36 for a summary of the obligations that a pledge may secure.

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Nominate

The Civil Code gave it a name. Yessir.

Some pledges (Arts. 546, 1731, and 1994), are created by operation of law and are governed by the provisions on pledges.

1. 2. 3. 4. 5. 6. 7.

The obligations of a pledge do not arise until there has been failure to perform the principal obligation.

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(2) Shares of stock of agricultural, commercial and industrial entities, although they may have real estate. (336a)

4. Parties A R T . 2 1 0 3, C C Unless the thing pledged is expropriated, the debtor continues to be the owner thereof. Nevertheless, the creditor may bring the actions which pertain to the owner of the thing pledged in order to recover it from, or defend it against a third person. (1869)

A R T . 4 1 8, C C Movable property is either consumable or nonconsumable. To the first class belong those movables which cannot be used in a manner appropriate to their nature without their being consumed; to the second class belong all the others. (337)

A R T . 1 1 1, F A M I L Y C O D E A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same. (n)

Things that may be given in pledge Movables susceptible of possession As to Incorporeal rights represented by titles (requires corporeality delivery of the document evidencing the incorporeal right) Only existing property As to However, there may be a promise to pledge existence future property, e.g. future dividends, through a pledge supplement

Pledgor Pledgee

c. Cause

5. Form

A R T . 1 3 5 0, C C

A R T . 2 0 9 6, C C

In onerous contracts the cause is understood to be, for each contracting party, the prestation or promise of a thing or service by the other; in remuneratory ones, the service or benefit which is remunerated; and in contracts of pure beneficence, the mere liberality of the benefactor. (1274)

Pledgor Cause

A pledge shall not take effect against third persons if a description of the thing pledged and the date of the pledge do not appear in a public instrument. (1865a)

Formal requisites of a pledge To be effective against third persons: 1. The pledge must be made in a public instrument, which sets forth 2. A description of the subject of the pledge, and 3. The date of the pledge.

Gratuitous pledge vs. onerous pledge Gratuitous Onerous Third person not party to Debtor in the principal principal obligation obligation Fulfillment of the Liberality principal obligation

6. Obligations of the pledgor Summary of pledgor’s obligations

d. Delivery

1. Allow alienation of the thing, in case the principal obligation becomes due 2. Pay damages for known hidden flaws

Art. 1316, supra Art. 2096, supra

a. Allow alienation of thing, in case principal obligation becomes due

Since pledge is a real contract, delivery is an essential requisite to its perfection. The lien created only upon delivery of the thing.

Kinds of delivery A thing given in pledge may be delivered in two ways: 1. Through actual delivery, or 2. Through constructive delivery. The delivery required depends on the nature of the thing given.

Parties to a contract of pledge Owns the thing given in pledge Either debtor or third person Receives the thing in pledge Either creditor or third person

Art. 2087, supra This is the essence of pledge. It is necessarily implied as an inherent element of the contract of pledge, since alienation of the thing through foreclosure and sale and the application of the proceeds thereof are the remedies given to the creditor.

b. Pay damages for known hidden flaws

To whom delivery must be made Delivery must be made to the pledgee, who may be either: 1. The creditor in the principal obligation; or 2. A third person agreed upon by the parties.

A R T . 2 1 0 1, C C The pledgor has the same responsibility as a bailor in commodatum in the case under Article 1951. (n)

A R T . 1 9 5 1, C C The bailor, who, knowing the flaws of the thing loaned, does not advise the bailee of the same, shall

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be liable to the latter for the damages which he may suffer by reason thereof. (1752)

A R T . 2 1 1 8, C C If a credit which has been pledged becomes due before it is redeemed, the pledgee may collect and receive the amount due. He shall apply the same to the payment of his claim, and deliver the surplus, should there be any, to the pledgor. (n)

This obligation is merely conditional upon the existence of hidden flaws and the pledgor’s knowledge thereof. It does not arise at the time the pledge was constituted.

7. Obligations of the pledgee

The pledge retains ownership of the fruits. However, the pledge generally extends to the fruits and interests. Hence, the pledgee can apply the fruits, income, dividends, or interests earned or produced by the thing pledged to the payment of interest, if owing, and thereafter to the principal of his credit.

Summary of pledgee’s obligations 1. Take care of the thing pledged 2. Not to deposit the thing pledged with a third party 3. Obligation with respect to matured credits, and to fruits, income dividends, or interests 4. Not to use the thing pledged 5. Return the thing pledged

Application of fruits, income, dividends, or interest 1. To interest first, if it is owing; 2. Then, to the principal credit

a. Take care of the thing pledged

Unless there is contrary stipulation, the interest and earnings and, in case of animals, their offspring, are included in the pledge.

A R T . 2 0 9 9, C C The creditor shall take care of the thing pledged with the diligence of a good father of a family; he has a right to the reimbursement of the expenses made for its preservation, and is liable for its loss or deterioration, in conformity with the provisions of this Code. (1867)

d. Not to use the thing pledged A R T . 2 1 0 4, C C The creditor cannot use the thing pledged, without the authority of the owner, and if he should do so, or should misuse the thing in any other way, the owner may ask that it be judicially or extrajudicially deposited. When the preservation of the thing pledged requires its use, it must be used by the creditor but only for that purpose. (1870a)

The diligence required is that of a good father of a family.

b. Not to deposit thing with third party A R T . 2 1 0 0, C C The pledgee cannot deposit the thing pledged with a third person, unless there is a stipulation authorizing him to do so. The pledgee is responsible for the acts of his agents or employees with respect to the thing pledged. (n) General rule: The pledgee cannot deposit the thing with a third person. Exception: He is allowed to do so by way of stipulation

General rule: The pledgee has no right to use the thing. Exceptions: 1. If there is authority from the owner; or 2. If the thing pledged requires that it be used in order to properly care for it. In this case, the duty of the creditor is to use the thing, but only for the purpose of preservation. If fruits are derived from the use, the pledgee must account these to the pledgor and apply the proceeds of the use to the principal obligation.

Pledgor has a right to ask for the deposit of the thing pledged judicially or extrajudicially, when: 1. The creditor uses the thing without authority; 2. The creditor misuses the thing in any way; or 3. If the thing is in danger of being lost or impaired because of the pledgee’s negligence or willful act.

This prohibition is necessary for the protection of the pledgor or the owner of the thing pledged.

c. With respect to matured credits and fruits, income dividends, or interests

e. Return the thing pledged

A R T . 2 1 0 2, C C If the pledge earns or produces fruits, income, dividends, or interests, the creditor shall compensate what he receives with those which are owing him; but if none are owing him, or insofar as the amount may exceed that which is due, he shall apply it to the principal. Unless there is a stipulation to the contrary, the pledge shall extend to the interest and earnings of the right pledged. In case of a pledge of animals, their offspring shall pertain to the pledgor or owner of animals pledged, but shall be subject to the pledge, if there is no stipulation to the contrary. (1868a)

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A R T . 2 1 0 5, C C The debtor cannot ask for the return of the thing pledged against the will of the creditor, unless and until he has paid the debt and its interest, with expenses in a proper case. (1871) General rule: The debtor whose debt and its interest are unpaid has no right to ask for the return of the thing pledged, against the creditor’s will.

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41 the right of the pledgee under the provisions of the following article. The pledgee is bound to advise the pledgor, without delay, of any danger to the thing pledged. (n)

Exception: The pledgor may substitute the thing pledged, which is in danger of destruction or impairment, with another thing of the same kind and quality.

8. Special rules

A R T . 2 1 0 8, C C If, without the fault of the pledgee, there is danger of destruction, impairment, or diminution in value of the thing pledged, he may cause the same to be sold at a public sale. The proceeds of the auction shall be a security for the principal obligation in the same manner as the thing originally pledged. (n)

a. As to ownership of the thing pledged A R T . 2 0 9 7, C C With the consent of the pledgee, the thing pledged may be alienated by the pledgor or owner, subject to the pledge. The ownership of the thing pledged is transmitted to the vendee or transferee as soon as the pledgee consents to the alienation, but the latter shall continue in possession. (n)

Remedies of pledgor in case of danger of destruction Without pledgee’s fault Pledgor may demand return of the thing, upon offering another thing Pledgor may ask that the thing be deposited with a of the same kind and quality third person Pledgee may cause the thing to be sold at a public sale With pledgee’s fault

Art. 2103, supra A R T . 2 1 2 0, C C If a third party secures an obligation by pledging his own movable property under the provisions of Article 2085 he shall have the same rights as a guarantor under Articles 2066 to 2070, and Articles 2077 to 2081. He is not prejudiced by any waiver of defense by the principal obligor. (n)

c. Deception on substance & quality of thing pledged A R T . 2 1 0 9, C C

Summary of rules As to ownership of thing pledged Sale of thing pledged

Retention of the thing pledged

Risk of loss & deterioration

Pledge does not transfer ownership, but the creditor has the right to possess the thing. The pledgor can sell or alienate the thing, given that: a. The pledgee consents; b. The pledgee continues in possession; and c. The pledge follows the property. The creditor has the right of retention for the principal debt, interest, and expenses of preservation. The debtor cannot demand the thing while these remain unpaid. General rule: Loss or deterioration is borne by the pledgor, as the owner (doctrine of res perit domino). Exception: If the loss or deterioration is due to the fraud, negligence, delay, or violation of the terms of the contract by the creditor, then he shall be liable.

b. When thing pledged is in danger of destruction A R T . 2 1 0 6, C C If through the negligence or wilful act of the pledgee, the thing pledged is in danger of being lost or impaired, the pledgor may require that it be deposited with a third person. (n)

Remedies of creditor in case of deception on substance & quality of thing pledged 1. Claim another thing instead; or 2. Demand immediate payment of the principal obligation.

d. Specific rules for third party pledgors A R T . 2 1 1 7, C C Any third person who has any right in or to the thing pledged may satisfy the principal obligation as soon as the latter becomes due and demandable. (n)

A R T . 2 1 2 0, C C If a third party secures an obligation by pledging his own movable property under the provisions of Article 2085 he shall have the same rights as a guarantor under Articles 2066 to 2070, and Articles 2077 to 2081. He is not prejudiced by any waiver of defense by the principal obligor. (n)

Accommodation pledge An accommodation pledge is one where a third person gives his movable property in order to secure the principal obligation of another. The third person in this case, or any third person with a right in/to the thing given in pledge, may fulfill the principal obligation as soon as it becomes due and demandable. He shall have the same rights as that of a guarantor, as per Art. 2120. Neither can he be prejudiced if the principal debtor waives any available defenses.

A R T . 2 1 0 7, C C If there are reasonable grounds to fear the destruction or impairment of the thing pledged, without the fault of the pledgee, the pledgor may demand the return of the thing, upon offering another thing in pledge, provided the latter is of the same kind as the former and not of inferior quality, and without prejudice to

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If the creditor is deceived on the substance or quality of the thing pledged, he may either claim another thing in its stead, or demand immediate payment of the principal obligation. (n)

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42 purchase price at once b. Be made in cash Failure to bid is when there are no bids If several properties are pledged: a. The creditor may choose which ones are to be sold b. But the sale demanded must only be insofar as necessary to pay the debt Effect of sale: Extinguishment of principal obligation, regardless of whether price of sale is more or less than the amount due If the creditor accepts a bid other than for cash, the pledgor/owner has the right to consider that the creditor has received the purchase price in cash Rules on deficiency & excess: a. Price of sale > amount due = debtor not entitled to excess unless there is agreement to the contrary b. Price of sale < amount due = creditor not entitled to recover deficiency and any stipulation allowing it is void Pledgee is obligated to advise the pledgor/owner of the result of the sale, so that the latter may take necessary steps to protect his rights if he believe the sale was not an honest one.

e. Procedure for foreclosure Art. 2112, supra A R T . 2 1 1 3, C C At the public auction, the pledgor or owner may bid. He shall, moreover, have a better right if he should offer the same terms as the highest bidder. The pledgee may also bid, but his offer shall not be valid if he is the only bidder. (n)

A R T . 2 1 1 4, C C All bids at the public auction shall offer to pay the purchase price at once. If any other bid is accepted, the pledgee is deemed to have been received the purchase price, as far as the pledgor or owner is concerned. (n) 4. Sale to highest bidder

A R T . 2 1 1 5, C C The sale of the thing pledged shall extinguish the principal obligation, whether or not the proceeds of the sale are equal to the amount of the principal obligation, interest and expenses in a proper case. If the price of the sale is more than said amount, the debtor shall not be entitled to the excess, unless it is otherwise agreed. If the price of the sale is less, neither shall the creditor be entitled to recover the deficiency, notwithstanding any stipulation to the contrary. (n)

5. Notice to pledgor

A R T . 2 1 1 6, C C After the public auction, the pledgee shall promptly advise the pledgor or owner of the result thereof. (n)

Art. 2117, supra

f.

Requisites of a valid foreclosure sale

A R T . 2 1 2 3, C C

1. The debt is due and unpaid; 2. The sale must be at a public auction; 3. There must be notice to the pledgor and owner, stating the amount due; and 4. The sale must be made with the intervention of a notary public.

With regard to pawnshops and other establishments, which are engaged in making loans secured by pledges, the special laws and regulations concerning them shall be observed, and subsidiarily, the provisions of this Title. (1873a)

Summary of foreclosure proceedings in pledge May simply be a letter to the 1. Notice by creditor to debtor debtor No need for posting 2. Conduct of the auction Court does not direct foreclosure; by notary public hence, extrajudicial in character Who may bid: a. Pledgee can submit a bid, but the offer will be invalid if he is the only bidder; b. Pledgor may submit a bid, and he shall have preference/a 3. Bidding better right if he offers the same terms as the highest bidder; c. Third persons may also bid All bids shall: a. Offer to pay the entire

APO ESPAÑOLA & CARLOS MARIN

Pawnshops

The laws on pledge, mortgage and antichresis are also applicable to pawnshops that make loans with these securities. But if you actually want to establish and operate a pawnshop, you should see PD 114. J

9. Extinguishment Causes for extinguishment of a pledge Sale of the thing at public auction Payment of the debt Return of thing pledged by the pledgee Only pledge is Renunciation or abandonment of the extinguished pledge

Principal obligation is also extinguished

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a. Of the principal obligation Art. 2115, supra

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43 possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof. (453a)

The extinguishment of the principal obligation in any way also extinguishes the pledge, since the latter is an accessory contract whose life is dependent upon that of the principal.

A R T . 1 7 3 1, C C

b. Of the pledge

He who has executed work upon a movable has a right to retain it by way of pledge until he is paid. (1600)

A R T . 2 1 1 0, C C If the thing pledged is returned by the pledgee to the pledgor or owner, the pledge is extinguished. Any stipulation to the contrary shall be void. If subsequent to the perfection of the pledge, the thing is in the possession of the pledgor or owner, there is a prima facie presumption that the same has been returned by the pledgee. This same presumption exists if the thing pledged is in the possession of a third person who has received it from the pledgor or owner after the constitution of the pledge. (n)

A R T . 1 9 9 4, C C The depositary may retain the thing in pledge until the full payment of what may be due him by reason of the deposit. (1780)

MANILA BANKING CORP. v. TEODORO (1989) Where ambiguity exists as to whether or not a transaction is a pledge or dation in payment, the presumption is in favor of it being a contract of pledge because there is lesser transmission of rights and interests.

Presumption of extinguishment due to return The presumption of extinguishment due to return by the pledgee arises if, subsequent to constituting the pledge: 1. The pledgor has possession of the thing; and 2. The pledgor grants possession of the thing to a third person.

Pledgors cannot insist that a creditor first exhaust all the properties of the debtor. Facts: MBC extended a loan to Teodoro for the purpose of purchasing fishing boats. As security for the loan, he executed a deed of assignment of receivables in favor of MBC. Teodoro defaulted in the loan and the bank sought to collect the remainder of the debt as well as the security provided therefor.

A R T . 2 1 1 1, C C A statement in writing by the pledgee that he renounces or abandons the pledge is sufficient to extinguish the pledge. For this purpose, neither the acceptance by the pledgor or owner, nor the return of the thing pledged is necessary, the pledgee becoming a depositary. (n) The renunciation by the pledgee must be in writing, but it does not require acceptance nor the return of the thing to be effective. However, while the thing is not yet returned, a contract of deposit arises between the pledgor and pledgee.

10. Legal pledges Legal pledges are—you guessed it!—created by operation of law.

Kinds of legal pledges in the Civil Code 1. A possessor in good faith becomes pledgee and may hold the thing, until reimbursement of necessary expenses for the thing; 2. One who has executed work upon a movable becomes pledgee and may hold the thing, until he is paid for the price of said work; 3. A depositary becomes pledgee and may hold the thing, until he is paid damages or expenses due to him by reason of the deposit. A R T . 5 4 6, C C Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor. Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the

APO ESPAÑOLA & CARLOS MARIN

Issues: WON the assignment of receivables was a dation in payment or pledge –PLEDGE WON the bank first had to exhaust the property of the debtor before seizing the items pledged – NO Held: The benefit of excussion cannot be availed of in the context of a pledge. Art 2087 provides that when the principal obligation becomes due, the thing pledged may be alienated the moment the debt becomes due.

CITIBANK v. SABENIANO (2006) Facts: Respondent Sabeniano deposited money and market placements with Citibank, with which it had debts, secured by Deeds of Assignment of Sabeniano’s money market placements in FNCB Finance. When Sabeniano failed to pay her debts to Citibank, the latter collected on the Deed of Assignment. Issue: Whether the money market placements can compensate for Sabeniano’s indebtedness. YES Held: The court considered these money market placements as having been pledged through Deeds of Assignment. Though the documents conveyed to Citibank were entitled Deeds of Assignment, the court held that she had actually pledged the money market deposits from FNCB Finance to Citibank. Therefore, what occurred was not so much a compensation, but an action collecting on the security of the obligation in which Sabeniano had defaulted.

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44 acquired is worth less than the amount of the debt.

CALIBO v. CA (2001) Requisites of a contract of pledge

Facts: As security for paying the cost of the cement that she purchased on credir, Chu pledged her time deposits in a bank. Upon failure to pay her obligations, the company encashed her time deposit and applied it to her debt.

1. The pledge acts as security for the fulfillment of the principal obligation (accessory contract) 2. The pledger is the absolute owner of the thing pledged 3. The pledger has free disposal of the property or is legally authorized to enter into a contract of pledge as regards the thing pledged

Issue: WON the appropriation of the pledged property without a public auction was void for running against the prohibition regarding pactum commissorium – NO

Facts: In order to secure payment of amounts owed to Atty. Calibo under their contract of lease, Mike pledged his father’s tractor as security. Mike’s father confronted Atty. Calibo and demanded that possession of the tractor be returned to him. When Atty. Calibo refused to return the tractor because the amounts owed to him had yet to be paid, Mike’s father filed a suit for replevin.

Held: Taking into consideration the fact that the monetary equivalent of the time deposits was less than the amount owed by Chu to the company, then it was not illegal for the former to encash the same. Note that Chu consented to such appropriation.

Issue: WON the contract of pledge regarding the tractor between Atty. Calibo and Mike was valid – NO Held: Applying the requisites of a contract of pledge [see doctrine], it was clear that Mike did not own the tractor and, as a result thereof, the contract of pledge was void. The action for replevin was proper.

PARAY v. RODRIGUEZ (2006) The right of redemption applies to real properties and not personal properties. The amount paid to the creditor by virtue of the public auction of the thing pledged extinguishes the indebtedness of the debtor notwithstanding the fact that a deficiency (or excess) may exist between the auction price and the principal obligation. The foreclosure of pledged property is always extrajudicial in nature. Facts: Upon defaulting in their obligation to pay, the petitioners auctioned off the stocks pledged by the respondents as security for their loan. The respondents assailed the validity of the auction because they attempted to redeem the stocks a day before the auction by tendering payment of their loan—they consigned the payment with the RTC. Issue: WON the consignation of payment extinguished the contract of pledge – NO Held: The right of redemption is a statutory privilege given to specific persons within the context of certain transactions— nothing exists in law or jurisprudence that established the right of owners of personal property to redeem the same.

CHU v. CA (1989) The rationale behind prohibiting pactum commissorium is to protect debtors from losing property offered as security for loans to creditors that may be worth more than the debt itself. The prohibition does not apply when the thing

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C. CHATTEL M O RTGAGE

d. Accessory

1. Concept

The chattel mortgage is constituted in order to secure a principal obligation.

A R T . 2 1 4 0, C C By a chattel mortgage, personal property is recorded in the Chattel Mortgage Register as a security for the performance of an obligation. If the movable, instead of being recorded, is delivered to the creditor or a third person, the contract is a pledge and not a chattel mortgage. (n)

Kinds of obligations that may be secured Valid As to validity Voidable Unenforceable Pure As to conditionality Conditional (suspensive or resolutory) As to time Present obligations Payment As to specific obligation Performance

A R T . 2 1 4 1, C C The provisions of this Code on pledge, insofar as they are not in conflict with the Chattel Mortgage Law shall be applicable to chattel mortgages. (n)

e. Gratuitous or onerous

SEC. 3, CHATTEL MORTGAGE LAW Chattel mortgage defined. — A chattel mortgage is a conditional sale of personal property as security for the payment of a debt, or the performance of some other obligation specified therein, the condition being that the sale shall be void upon the seller paying to the purchaser a sum of money or doing some other act named. If the condition is performed according to its terms the mortgage and sale immediately become void, and the mortgagee is thereby divested of his title.

It is gratuitous if given by a third person who is not a party to the principal obligation, and onerous if given by the debtor to the principal obligation.

f.

The requirement of recording in the Chattel Mortgage Register is essential.

3. Essential requisites

Chattel mortgage is a contract by virtue of which personal property is recorded in the Chattel Mortgage Register as security for the performance of an obligation.

a. Consent There must be capacity to give consent to the contract.

Under the Chattel Mortgage Law, chattel mortgage was defined as a conditional sale, but the Code Commission for the New Civil Code considered this inaccurate. Hence, the new definition under the (N)CC.

2. Characteristics Characteristics of chattel mortgage (CUNAGOF) Consensual Unilateral Nominate Accessory Gratuitous or onerous Formal

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

b. Object A R T . 2 1 2 4, C C Only the following property may be the object of a contract of mortgage: (1) Immovables; (2) Alienable real rights in accordance with the laws, imposed upon immovables. Nevertheless, movables may be the object of a chattel mortgage. (1874a)

SEC. 2, CHATTEL MORTGAGE LAW All personal property shall be subject to mortgage, agreeably to the provisions of this Act, and a mortgage executed in pursuance thereof shall be termed chattel mortgage.

a. Consensual No delivery is required in a chattel mortgage. However, mere consent does not yet perfect the contract: formal requirements must still be fulfilled.

b. Unilateral The main obligation is upon the mortgagee/creditor, who must free the property from all encumbrances once the debt is paid.

c. Nominate The Civil Code gives it a specific name. Wow so amaze much learn

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Formal

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SEC. 7, CHATTEL MORTGAGE LAW Descriptions of property. — The description of the mortgaged property shall be such as to enable the parties to the mortgage, or any other person, after reasonable inquiry and investigation, to identify the same. If the property mortgaged be large cattle," as defined by section one of Act Numbered Eleven and forty-seven, 2 and the amendments thereof, the description of said property in the mortgage shall contain the brands, class, sex, age, knots of radiated hair commonly known as remolinos, or cowlicks, and other marks of ownership as described and set forth in

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the certificate of ownership of said animal or animals, together with the number and place of issue of such certificates of ownership. If growing crops be mortgaged the mortgage may contain an agreement stipulating that the mortgagor binds himself properly to tend, care for and protect the crop while growing, and faithfully and without delay to harvest the same, and that in default of the performance of such duties the mortgage may enter upon the premises, take all the necessary measures for the protection of said crop, and retain possession thereof and sell the same, and from the proceeds of such sale pay all expenses incurred in caring for, harvesting, and selling the crop and the amount of the indebtedness or obligation secured by the mortgage, and the surplus thereof, if any shall be paid to the mortgagor or those entitled to the same. A chattel mortgage shall be deemed to cover only the property described therein and not like or substituted property thereafter acquired by the mortgagor and placed in the same depository as the property originally mortgaged, anything in the mortgage to the contrary notwithstanding.

5. Form What must appear in contract of CM 1. Description of the property sufficient to enable identification; 2. Signature of parties and 2 witnesses; 3. Amount of principal obligation to be secured; and 4. Affidavit of good faith.

Affidavit of good faith What it contains Effect of its absence

SEC. 4, CHATTEL MORTGAGE LAW

Rules as to what may be given in chattel mortgage General rule: Only MOVABLE THINGS Exceptions: 1. Growing crops (considered personal property under CML) 2. Large cattle are considered immovable As to movability under the CC 3. By estoppel—when parties have treated as movable property something that was immovable, they are estopped from assailing the validity of the CM executed Only existing properties may be mortgaged As to current Generally does not cover subsequently existence acquired properties, unless so stipulated Thing must be sufficiently described in the As to formal affidavit of CM such that it is identifiable by requirement the parties/any person after reasonable investigation and inquiry As to Several chattel mortgages may be simultaneity constituted over the same movable thing As to ownership Mortgagor retains possession of property

c. Cause Art. 1350, supra The cause may either be liberality, in the case of a gratuitous CM (executed by a third person), or the payment of the principal obligation in the case of an onerous CM (executed by the principal debtor).

4. Parties Parties to a contract of chattel mortgage Owns the thing given in mortgage Mortgagor Either debtor or third person Receives the thing in mortgage Mortgagee Creditor in principal obligation

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Oath that: 1. Mortgage is constituted in order to secure the obligation specified, and for no other purpose; and 2. Obligation is just and valid, and not entered into for fraudulent purposes Vitiates mortgage only as against third persons without notice

Validity. — A chattel mortgage shall not be valid against any person except the mortgagor, his executors or administrators, unless the possession of the property is delivered to and retained by the mortgagee or unless the mortgage is recorded in the office of the register of deeds of the province in which the mortgagor resides at the time of making the same, or, if he resides without the Philippine Islands, in the province in which the property is situated: Provided, however, That if the property is situated in a different province from that in which the mortgagor resides, the mortgage shall be recorded in the office of the register of deeds of both the province in which the mortgagor resides and that in which the property is situated, and for the purposes of this Act the city of Manila shall be deemed to be a province.

SEC. 5, CHATTEL MORTGAGE LAW Form. — A chattel mortgage shall be deemed to be sufficient when made substantially in accordance with the following form, and shall be signed by the person or persons executing the same, in the presence of two witnesses, who shall sign the mortgage as witnesses to the execution thereof, and each mortgagor and mortgagee, or, in the absence of the mortgagee, his agent or attorney, shall make and subscribe an affidavit in substance as hereinafter set forth, which affidavit, signed by the parties to the mortgage as above stated, and the certificate of the oath signed by the authority administering the same, shall be appended to such mortgage and recorded therewith. FORM OF CHATTEL MORTGAGE AND AFFIDAVIT. "This mortgage made this ____ day of ______19____ by _______________, a resident of the municipality of ______________, Province of ____________, Philippine Islands mortgagor, to ____________, a resident of the municipality of ___________, Province of ______________, Philippine Islands, mortgagee, witnesseth: "That the said mortgagor hereby conveys and mortgages to the said mortgagee all of the following-

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described personal property situated in the municipality of ______________, Province of ____________ and now in the possession of said mortgagor, to wit:

mortgage. When a partnership is a party to the mortgage the affidavit may be made and subscribed by one member thereof.

(Here insert specific description of the property mortgaged.)

Sec. 7, Chattel Mortgage Law, supra

"This mortgage is given as security for the payment to the said ______, mortgagee, of promissory notes for the sum of ____________ pesos, with (or without, as the case may be) interest thereon at the rate of ___________ per centum per annum, according to the terms of __________, certain promissory notes, dated _________, and in the words and figures following (here insert copy of the note or notes secured).

Registration of chattel mortgages and fees collectible in connection therewith. — A chattel mortgage shall be deemed to cover only the property described therein and not like or substituted property thereafter acquired by the mortgagor and placed in the same depository as the property originally mortgaged, anything in the mortgage to the contrary notwithstanding. The recording of a mortgage shall be effected by making an entry, which shall be given a correlative number, setting forth the names of the mortgagee, and the mortgagor, the sum or obligation guaranteed, date of the instrument, name of the notary before whom it was sworn to or acknowledged, and a note that the property mortgaged, as well as the terms and conditions of the mortgage, is mentioned in detail in the instrument filed, giving the proper file number thereof. The recording of other instruments relating to a recorded mortgage shall be effected by way of annotations on the space provided therefor in the registration book, after the same shall have been entered in the primary entry book. The register of deeds shall also certify the officer's return of sale upon any mortgage, making reference upon the record of such officer's return to the volume and page of the record of the mortgage, and a reference of such return on the record of the mortgage itself, and give a certified copy thereof, when requested, upon payment of the lawful fees for such copy; and certify upon each mortgage officer's return of sale or discharge of mortgage; and upon any other instrument relating to such a recorded mortgage, both on the original and on the duplicate, the date, hour, and minute when the same is received for record and record such certificate with the return itself and keep an alphabetical index of mortgagors and mortgagees, which record and index shall be open to public inspection. Duly certified copies of such records and of filed instruments shall be receivable as evidence in any court. The register of deeds shall collect the following fees for services rendered by him under this section: (a) For entry or presentation of any document in the primary entry book, one peso. Supporting papers presented together with the principal document need not be charged any entry or presentation fee unless the party in interest desires that they be likewise entered. (b) For filing and recording each chattel mortgage, including the necessary certificates and affidavits, the fees established in the following schedule shall be collected: 1. When the amount of the mortgage does not exceed six thousand pesos, three pesos and fifty centavos for the first five hundred pesos

SEC. 198, ADMINISTRATIVE CODE*

"(If the mortgage is given for the performance of some other obligation aside from the payment of promissory notes, describe correctly but concisely the obligation to be performed.) "The conditions of this obligation are such that if the mortgagor, his heirs, executors, or administrators shall well and truly perform the full obligation (or obligations) above stated according to the terms thereof, then this obligation shall be null and void. "Executed at the municipality of _________, in the Province of ________, this _____ day of 19_____ ____________________ (Signature "In

of

the

mortgagor.) presence

of

"_________________ "_________________ (Two witnesses sign here.) FORM OF OATH. "We severally swear that the foregoing mortgage is made for the purpose of securing the obligation specified in the conditions thereof, and for no other purpose, and that the same is a just and valid obligation, and one not entered into for the purpose of fraud." FORM OF CERTIFICATE OF OATH. "At ___________, in the Province of _________, personally appeared ____________, the parties who signed the foregoing affidavit and made oath to the truth thereof before me. "_____________________________" (Notary public, justice of the peace, 1 or other officer, as the case may be.)

SEC. 6, CHATTEL MORTGAGE LAW Corporations. — When a corporation is a party to such mortgage the affidavit required may be made and subscribed by a director, trustee, cashier, treasurer, or manager thereof, or by a person authorized on the part of such corporation to make or to receive such

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CREDIT TRANSACTIONS or fractional part thereof, and one peso and fifty centavos for each additional five hundred pesos or fractional part thereof. 2. When the amount of the mortgage is more than six thousand pesos but does not exceed thirty thousand pesos, twenty-four pesos for the initial amount not exceeding eight thousand pesos, and four pesos for each additional two thousand pesos or fractional part thereof. 3. When the amount of the mortgage is more than thirty thousand pesos but does not exceed one hundred thousand pesos, seventy-five pesos for the initial amount not exceeding thirty-five thousand pesos, and seven pesos for each additional five thousand pesos or fractional part thereof. 4. When the amount of the mortgage is more than one hundred thousand pesos but does not exceed five hundred thousand pesos, one hundred and seventy-six pesos for the initial amount not exceeding one hundred ten thousand pesos, and ten pesos for each additional ten thousand pesos or fractional part thereof. 5. When the amount of the mortgage is more than five hundred thousand pesos, five hundred eighty-one pesos for the initial amount not exceeding five hundred twenty thousand pesos, and fifteen pesos for each additional twenty thousand pesos or fractional part thereof: Provided, however, That registration of the mortgage in the province where the property is situated shall be sufficient registration: And provided, further, That if the mortgage is to be registered in more than one city or province, the register of deeds of the city or province where the instrument is first presented for registration shall collect the full amount of the fees due in accordance with the schedule prescribed above, and the register of deeds of the other city or province where the same instrument is also to be registered shall collect only a sum equivalent to twenty per centum of the amount of fees due and paid in the first city or province, but in no case shall the fees payable in any registry be less than the minimum fixed in said schedule. (c) For recording each instrument of sale, conveyance, or transfer of the property which is subject of a recorded mortgage, or of the assignment of mortgage credit, the fees established in the preceding schedule shall be collected on the basis of ten per centum of the amount of the mortgage or unpaid balance thereof: Provided, That the latter is stated in the instrument. (d) For recording each notice of attachment, including the necessary index and annotations, four pesos. (e) For recording each release of mortgage, including the necessary index and references, the fees

APO ESPAÑOLA & CARLOS MARIN

48 established in the schedule under paragraph (b) above shall be collected on the basis of five per centum of the amount of the mortgage. (f) For recording each release of attachment, including the proper annotations, two pesos. (g) For recording each sheriff's return of sale, including the index and references, three pesos. (h) For recording a power of attorney, appointment of judicial guardian, administrator, or trustee, or any other instrument in which a person is given power to act in behalf of another in connection with a mortgage, three pesos. (i) For recording each instrument or order relating to a recorded mortgage, including the necessary index and references, for which no specific fee is provided above, two pesos. (j) For certified copies of records, such fees as are allowed by law for copies kept by the register of deeds. (k) For issuing a certificate relative to, or showing the existence or non-existence of, an entry in the registration book, or a document on file, for each such certificate containing not more than two hundred words, three pesos; if it exceeds that number, an additional fee of fifty centavos shall be collected for every one hundred words or fractional part thereof, in excess of the first two hundred words. This provision supersedes Sec. 15 of the Chattel Mortgage Law.

6. Rights & obligations of the mortgagor Right Obligations

To possession of the thing Not to remove the thing Not to sell or dispose of the thing without the mortgagee’s consent Take care of the thing

7. Rights & obligations of the mortgagee Rights Obligation

To possession To foreclose the mortgage To free thing from all encumbrances upon fulfillment of the principal obligation

a. Free property from all encumbrances once obligation has been fulfilled SEC. 8, CHATTEL MORTGAGE LAW Failure of mortgagee to discharge the mortgage. — If the mortgagee, assign, administrator, executor, or either of them, after performance of the condition before or after the breach thereof, or after tender of the performance of the condition, at or after the time fixed for the performance, does not within ten days after being requested thereto by any person entitled to redeem, discharge the mortgage in the manner provided by law, the person entitled to redeem may recover of the person whose duty it is to discharge the same twenty pesos for his neglect and all damages occasioned thereby in an action in any court having jurisdiction of the subject-matter thereof.

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49 persons holding subsequent mortgages in their order, and the balance, after paying the mortgages, shall be paid to the mortgagor or person holding under him on demand. If the sale includes any "large cattle," a certificate of transfer as required by section sixteen of Act Numbered Eleven hundred and forty-seven 5 shall be issued by the treasurer of the municipality where the sale was held to the purchaser thereof.

This is the obligation to release the property from encumbrances once the principal obligation has been fulfilled. It is the mortgagee’s main obligation.

b. Right to possession SEC. 13, CHATTEL MORTGAGE LAW When the condition of a chattel mortgage is broken, a mortgagor or person holding a subsequent mortgage, or a subsequent attaching creditor may redeem the same by paying or delivering to the mortgagee the amount due on such mortgage and the reasonable costs and expenses incurred by such breach of condition before the sale thereof. An attaching creditor who so redeems shall be subrogated to the rights of the mortgagee and entitled to foreclose the mortgage in the same manner that the mortgagee could foreclose it by the terms of this Act. Prior to default, the mortgagee has no right to possess the thing. It arises only when the mortgagor breaches a condition of the chattel mortgage.

c. Right to foreclose SEC. 14, CHATTEL MORTGAGE LAW Sale of property at public auction; Officer's return; Fees; Disposition of proceeds. — The mortgagee, his executor, administrator, or assign, may, after thirty days from the time of condition broken, cause the mortgaged property, or any part thereof, to be sold at public auction by a public officer at a public place in the municipality where the mortgagor resides, or where the property is situated, provided at least ten days' notice of the time, place, and purpose of such sale has been posted at two or more public places in such municipality, and the mortgagee, his executor, administrator, or assign, shall notify the mortgagor or person holding under him and the persons holding subsequent mortgages of the time and place of sale, either by notice in writing directed to him or left at his abode, if within the municipality, or sent by mail if he does not reside in such municipality, at least ten days previous to the sale. The officer making the sale shall, within thirty days thereafter, make in writing a return of his doings and file the same in the office of the register of deeds where the mortgage is recorded, and the register of deeds shall record the same. The fees of the officer for selling the property shall be the same as in the case of sale on execution as provided in Act Numbered One hundred and ninety, 4 and the amendments thereto, and the fees of the register of deeds for registering the officer's return shall be taxed as a part of the costs of sale, which the officer shall pay to the register of deeds. The return shall particularly describe the articles sold, and state the amount received for each article, and shall operate as a discharge of the lien thereon created by the mortgage. The proceeds of such sale shall be applied to the payment, first, of the costs and expenses of keeping and sale, and then to the payment of the demand or obligation secured by such mortgage, and the residue shall be paid to

APO ESPAÑOLA & CARLOS MARIN

Summary of foreclosure proceedings in chattel mortgage Must be posted in 2 public places of municipality: a. Where mortgagor resides, or b. Where property is situated 1. Notice by creditor Must also be given to mortgagor either to debtor in writing or at his residence, or sent to him by mail, if he does not situate in the municipality Must be made 10 days prior to the sale No right of redemption—only equity of redemption Must be a public sale made by a public officer at a public place in municipality where mortgagor resides Officer must make a return in writing particularly describing the things sold and the amounts for which they were sold—return discharges the lien Application of proceeds of the sale: a. Costs and expenses of keeping and 2. Foreclosure sale sale; b. Payment of principal obligation; c. Persons holding subsequent mortgages on the thing; and d. If any balance remains, it shall be returned to the mortgagor. Rules on deficiency & excess: a. Price of sale > amount due = debtor entitled to excess b. Price of sale < amount due = creditor entitled to recover deficiency

8. Special rules involving chattel mortgage a. Registration of chattel mortgage A R T . 2 1 4 0, C C By a chattel mortgage, personal property is recorded in the Chattel Mortgage Register as a security for the performance of an obligation. If the movable, instead of being recorded, is delivered to the creditor or a third person, the contract is a pledge and not a chattel mortgage. (n)

Sec. 4, Chattel Mortgage Law, supra S E C . 1 1 4, P . D . 1 5 2 9 Recording of chattel mortgages. A chattel mortgage shall be recorded in the office of the Register of Deeds of the province or city where the mortgagor resides as

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well as where the property is situated or ordinarily kept.

personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of the execution of the mortgage, without the written consent of the mortgagee, or his executors, administrators or assigns. (2) Any mortgagor who shall sell or pledge personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record hereof in the office of the Register of Deeds of the province where such property is located.

S E C . 1 1 4, P . D . 1 5 2 9 Manner of recording chattel mortgages. Every Register of Deeds shall keep a Primary Entry Book and a Registration Book for chattel mortgages; shall certify on each mortgage filed for record, as well as on its duplicate, the date, hour, and minute when the same was by him received; and shall record in such books any chattel mortgage, assignment or discharge thereof, and any other instrument relating to a recorded mortgage, and all such instruments shall be presented to him in duplicate, the original to be filed and the duplicate to be returned to the person concerned. The recording of a mortgage shall be effected by making an entry, which shall be given a correlative number, setting forth the names of the mortgagee and the mortgagor, the sum or obligation guaranteed, date of the instrument, name of the notary before whom it was sworn to or acknowledged, and a note that the property mortgaged, as well as the terms and conditions of the mortgage, is mentioned in detail in the instrument filed, giving the proper file number thereof. The recording of other instruments relating to a recorded mortgage shall be effected by way of annotation on the space provided therefor in the Registration Book, after the same shall have been entered in the primary Entry Book. The Register of Deeds shall also certify the officer's return of sale upon any mortgage, making reference upon the record of such officer's return to the volume and page of the record of the mortgage, and a reference of such return on the record of the mortgage itself, and give a certified copy thereof, when requested, upon payment of the legal fees for such copy thereof, when requested, upon payment of the legal fees for such copy and certify upon each mortgage officer's return of sale or discharge of mortgage, and upon any other instrument relating to such a recorded mortgage, both on the original and in the duplicate, the date, hour, and minute when the same is received for record and record such certificate index of mortgagors and mortgagees, which record and index shall be open to public inspection. Duly certified copies of such records and of filed instruments shall be receivable as evidence in any court.

Acts punished under Art. 319 and their elements Acts punished Elements 1. Personal property is mortgaged under the Chattel Knowingly removing any Mortgage Law; personal property 2. Offender knows that such mortgaged under the CML property is so mortgaged; to any province or city 3. Offender removes such other than the one in property to any province/city which it was located at the other than the one in which it time of execution of the was located at the time mortgage, without the mortgage was executed; mortgagee's written 4. The removal is permanent; consent or the consent of and his executors, 5. There is no written consent administrators, or assigns from the mortgagee or his executors, administrators, or assigns. Selling or pledging 1. Personal property is already personal property already pledged under the terms of pledged, or any part the Chattel Mortgage Law; thereof, under the terms of 2. Offender, who is the the CML, without the mortgagor, sells/pledges such consent of the mortgagee property or any part of it; written on the back of the 3. There is no consent of the mortgage and noted on mortgagee written on the back the record thereof in the of the mortgage and noted on office of the Register of the record thereof in the office Deeds of the province of the Register of Deeds where such property is located via Elements of Felonies in the Revised Penal Code and Their Penalties (2007)

9. Risk of loss & deterioration

What must be recorded in the CM Register

Since no transfer of ownership occurs, the principle of res perit domino governs, i.e. the owner (the mortgagor) shall suffer risk of loss and deterioration.

1. Chattel mortgage contract 2. All supplements and amendments 3. Deed of release upon extinguishment of the chattel mortgage

10. Extinguishment

b. Offenses involving chattel mortgage

Sec. 8, Chattel Mortgage Law, supra Sec. 13, Chattel Mortgage Law, supra

A R T . 3 1 9, REVISED PENAL CODE Removal, sale or pledge of mortgaged property. — The penalty or arresto mayor or a fine amounting to twice the value of the property shall be imposed upon: (1) Any person who shall knowingly remove any

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The general provisions on extinguishment of obligations apply. However, upon extinguishment of the chattel mortgage, a deed of release must be made and filed with the Register of Deeds.

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ACME SHOE RUBBER & PLASTIC v. CA (1996) A chattel mortgage can only cover obligations existing at the time the mortgage was constituted. Provisions that are to the effect that previously established chattel mortgages will cover subsequent loans are invalid. Facts: The loan between the petitioner and the bank contained a provision that the chattel mortgage put up by the former as security for a P3M loan extended by the latter would also serve as security for any future debts between the two parties. After the P3M loan was timely paid, the petitioner obtained more loans. He defaulted on some of the later loans which led the bank to foreclose the chattel mortgage. Issue: WON the bank could foreclose the chattel mortgage based on the provision in their loan contract that made the chattel mortgage cover all future obligations – NO

Facts: Wilfredo bought a truck and tractor which he mortaged to Libra Finance in order to secure payment of their purchase price. Perfecto, Wilfredo’s brother, bought the tractor with the consent of Libra. Libra refused to accept payment for the purchase price of just the tractor for purposes of extinguishing the mortgage over it and insisted that Perfecto pay for the truck as well. Gelac, another creditor of Wilfredo, on the strength of a favorable ruling in a complaint for collection of sum of money against the latter caused the sheriff to seize the tractor and sell it through public auction. Perfecto filed an action to recover the tractor. Issue: WON the tractor should be given back to Perfecto – YES Held: The seizure and subsequently sale of Gelac of the truck was invalid because it was no longer the property of Wilfredo— ownership had transferred by virtue of the sale between the brothers. The rule is that only properties unquestionably owned by the judgment debtor may be levied upon.

Held: While the promise to provide a chattel mortgage is enforceable between the parties, the mortgage itself does not come into existence until a new chattel mortgage contract is executed between the parties or until the old chattel mortgage contract is amended. As applied, the only obligation covered by the chattel mortgage was the initial P3M loan. Further, upon payment of the initial loan, the chattel mortgage was extinguished.

SERVICEWIDE SPECIALIST v. CA (1999)

MAKATI LEASING v. WEAREVER TEXTILE

Facts: Sps. Ponce bought a car from CRTE over which they executed a contract of chattel mortgage in favor of the latter. CRTE assigned their credit to Filinivest Credit Corp. after giving notice to the spouses. Filinvest then assigned all its rights and interests over the mortgage to Servicewide without giving notice to the souses. Upon the failure of the spouses to pay the installments, Servicewide filed a case for replevin and damages. As defense, the spouses denied liability because the car had been sold to Tecson under a Deed of Sale with Assumption of Mortgage.

Parties to a contract may, by agreement, treat real property as personal property as long as such treatment will not prejudice the rights of third parties. Facts: As security for its loans to Makati Leasing, Wearever executed a chattel mortgage over raw materials and a piece of machinery. Upon defaulting, Makati Leasing sought to foreclose properties mortgaged, including the said piece of machinery. The CA ruled that the machinery cannot be foreclosed because it is a real property as defined by the civil code. Issue: WON the machinery in question is real or personal property – PERSONAL Held: Multiple pieces of jurisdiction provide that “the characterization of the subject machinery as chattel by the private respondent is indicative of intention and impresses upon the property the character determined by the parties.” As applied, it was clear that the parties intended to treat the piece of machinery as personal property when they executed a contract of chattel mortgage that covered the same.

DY v. CA (1991)

Notice of assignment of credit is required to be given to the debtor; his consent is not required. On the other hand, the consent of the creditormortgagee to the alienation of the property mortgaged is necessary to bind him to the transaction.

Issue: WON the sale was binding upon Servicewide—NO Held: Although the spouses were not notified by Filinvest regarding the transfer of its interest over the chattel mortgage to Servicewide, the transaction was still not binding to Servicewide because the spouses did not obtain the consent of Filinvest (who they thought was still the creditor-mortgagee). In other words, notwithstanding the fact that as far as the spouses were concerned, it was still Filinvest, and not Servicewide, who had an interest in the chattel mortgage, no consent was given by Filinvest to the transaction. Therefore, Servicewide, who stepped into the shoes of Filinvest when it assigned to the former its interest in the chattel mortgage, may raise the defenses available to Filinvest.

RCBC v. ROYAL CARGO (2009)

As a result of the fact that the chattel mortgagor retains ownership over the personal property mortgaged, he may still validly alienate the same. In order to avoid incurring criminal liability, however, the consent of the mortgagee as regards the sale must be obtained.

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Equity redemption is the right of the mortgagor to redeem the mortgaged property after his default in the performance of the conditions of the mortgage but before the sale of the property to clear it from the encumbrance of the mortgage.

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Facts: Terrymanila owed RCBC P3M secured by a chattel mortgage. Royal Cargo who was another creditor of Terrymanila filed an action for collection of sum of money before the RTC and preliminarily attached some properties of Terrymanila. The RTC ruled in favor of Royal Cargo regarding its claims. Subsequently, RCBC foreclosed the chattel mortgaged and caused the sheriff to sell the property over which it was executed. Royal Cargo assailed the foreclosure and auction sale because it involved pieces of property that it had already attached and that they were not duly notified of the sale 10 days before it took place pursuant to the provisions of the Chattel Mortgage law. Issue: WON Royal Cargo was entitled to notice of the foreclosure sale 10 days before it took place – YES

D. REAL ESTATE M O RTG AG E

1. Concept Art. 2085, supra Art. 2087, supra A real estate mortgage is a contract whereby immovable property or real rights over immovable property are given in order to secure the fulfillment of a principal obligation. If the debtor defaults, the property given must be sold at a foreclosure sale, and the proceeds thereof applied to the principal obligation.

2. Characteristics

Held: The attachment that Royal Cargo obtained over certain properties of Terrymanila had the effect of attaching the latter’s right to equity redemption—it did not take the properties attached outside of the chattel mortgage foreclosed by RCBC. Hence, Royal Cargo had the right to be informed of the date of sale of the mortgaged assets for it to exercise such equity redemption over the properties previously attached. However, the Court here held that Royal Cargo had been put on notice regarding the impending foreclosure sale and that its negligence to act upon such notice was a waiver of its right to equitably redeem the disputed properties.

Art. 2052, supra Art. 2086, supra Art. 2092, supra Characteristics of REM (CUNSAGOF) 1. 2. 3. 4. 5. 6. 7.

PAMECA WOOD TREATMENT v. CA (1999)

Consensual Unilateral Nominate Subsidiary Accessory Gratuitous or onerous Formal

a. Consensual

Unlike in contracts of pledge, the creditor in obligations secured by a chattel mortgage may recover the deficiency. Similarly, the creditor is not entitled to keeping the excess.

The REM is perfected upon consent, subject to the formal requirements.

Facts: Pameca obtained a loan from the bank and defaulted which led to the bank foreclosing the chattel mortgage executed over certain properties of Pameca. After the auction sale, the bank filed a complaint for collecting the remaining balance of the loan.

b. Unilateral It creates only an obligation on the part of the creditor, who must free the property from the encumbrance, once the principal obligation has been fulfilled.

c. Nominate

Issue: WON the bank may claim the balance –YES Held: Sec. 14 of the Chattel Mortgage Law explicitly provides that the mortgagee is entitled to the balance of the proceeds. The reason for this is that the value of chattels, as compared to the value of real properties, fluctuates more frequently. Hence, in order for the creditor-mortgagee to fully satisfy his claim, the law allows him to sue on the deficiency. Protection is also afforded to the debtor-mortgagor in that the creditor-mortgagee cannot keep the excess if any should be obtained following the auction sale.

The Civil Code gives it a specific name.

d. Subsidiary The right to foreclose arises only when there has been breach of or default in fulfilling the principal obligation.

e. Accessory REM secures a principal obligation.

Kinds of obligations that may be secured by REM Valid As to validity Voidable Unenforceable Pure As to conditionality Conditional (suspensive or resolutory) Present obligations As to time Future obligations Payment As to specific obligation Performance

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53 income not yet received when the obligation becomes due, and to the amount of the indemnity granted or owing to the proprietor from the insurers of the property mortgaged, or in virtue of expropriation for public use, with the declarations, amplifications and limitations established by law, whether the estate remains in the possession of the mortgagor, or it passes into the hands of a third person. (1877)

Gratuitous or onerous

The REM is gratuitous if given by a third person who is not a party to the principal obligation, and onerous if given by the debtor.

g. Formal In order to be valid, the REM must be made in a public document and recorded in the Registry of Property.

Valid subject matter of real estate mortgage 1. Immovable property 2. Real rights over immovable property 3. Natural accessions, improvements, growing fruits, rents or income of the property (principle of accession follows principal)

3. Essential requisites a. Consent The parties must have capacity to give consent to a contract.

Future property generally cannot be given in a REM.

b. Object

c. Cause

A R T . 4 1 5, C C The following are immovable property: (1) Land, buildings, roads and constructions of all kinds adhered to the soil; (2) Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable; (3) Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object; (4) Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements; (5) Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works; (6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included; (7) Fertilizer actually used on a piece of land; (8) Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant; (9) Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast; (10) Contracts for public works, and servitudes and other real rights over immovable property. (334a)

Art. 2124, supra A R T . 2 1 2 7, C C The mortgage extends to the natural accessions, to the improvements, growing fruits, and the rents or

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Art. 1350, supra For a third person, the cause is liberality (gratuitous REM). For the debtor, the cause is his fulfillment of the principal obligation (onerous REM).

4. Parties Art. 2085, supra Art. 111, Family Code, supra Parties to a contract of real estate mortgage Owns the thing given in mortgage Mortgagor Either debtor or third person Receives the thing in mortgage Mortgagee Creditor in principal obligation

5. Form A R T . 1 8 7 9, C C A special power to sell excludes the power to mortgage; and a special power to mortgage does not include the power to sell. (n)

A R T . 2 1 2 5, C C In addition to the requisites stated in Article 2085, it is indispensable, in order that a mortgage may be validly constituted, that the document in which it appears be recorded in the Registry of Property. If the instrument is not recorded, the mortgage is nevertheless binding between the parties. The persons in whose favor the law establishes a mortgage have no other right than to demand the execution and the recording of the document in which the mortgage is formalized. (1875a)

Rules on form of real estate mortgage Must be made in a public instrument Formal requisites Must be recorded in the Registry of Property If mortgage is in a private instrument, it is Effect of private not binding as a mortgage, but parties may document compel conformity with form (Art. 1357)*

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Effect of not recording

Binding between the parties, but not upon third persons

Right of parties in legal mortgage

May compel execution of REM document

Extrajudicial foreclosure

May demand recording of such document

8. Obligations of the mortgagee

6. Types

Release the mortgaged property from encumbrance

Art. 2125, supra A R T . 1 6 0 2, C C

A mortgagee who is in lawful possession of the thing is entitled to continue in possession until the indebtedness is fully satisfied. But once the mortgagor has fulfilled the principal obligation, the mortgagee must release the property from the encumbrance.

The contract shall be presumed to be an equitable mortgage, in any of the following cases: (1) When the price of a sale with right to repurchase is unusually inadequate; (2) When the vendor remains in possession as lessee or otherwise; (3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed; (4) When the purchaser retains for himself a part of the purchase price; (5) When the vendor binds himself to pay the taxes on the thing sold; (6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation. In any of the foregoing cases, any money, fruits, or other benefit to be received by the vendee as rent or otherwise shall be considered as interest which shall be subject to the usury laws. (n)

9. Special rules a. Ownership of property after creation of mortgage A R T . 2 1 3 0, C C A stipulation forbidding the owner from alienating the immovable mortgaged shall be void. (n)

Rules on ownership No transfer of ownership occurs Thing remains in mortgagor’s As to possession possession Mortgagor may sell the mortgaged property Stipulation forbidding sale is void As to sale of thing Stipulation requiring mortgagee’s consent before sale also void Mortgage lien follows property

As to transfer of ownership

Types of real estate mortgage Voluntary or conventional Legal Equitable mortgage

Created by agreement of the parties

b. Registration requirement; effects

Arises by operation of law Lacks proper formalities of a mortgage, but reveals parties’ intention to burden property as security for a debt, and contains nothing contrary to law

A R T . 1 3 1 2, C C In contracts creating real rights, third persons who come into possession of the object of the contract are bound thereby, subject to the provisions of the Mortgage Law and the Land Registration Laws. (n)

7. Obligations of the mortgagor

Art. 2125, supra

Summary of obligations of the mortgagor

A R T . 2 1 2 6, C C The mortgage directly and immediately subjects the property upon which it is imposed, whoever the possessor may be, to the fulfillment of the obligation for whose security it was constituted. (1876)

1. Implied right to take care of the thing 2. Allow foreclosure

a. Implied right to take care of thing Delivery of the thing is not required for the validity of the REM constituted. Hence, the mortgagor retains the right to have the thing in his possession, and to take care of the thing such that the creditor’s rights may be preserved.

A R T . 2 1 2 9, C C The creditor may claim from a third person in possession of the mortgaged property, the payment of the part of the credit secured by the property which said third person possesses, in the terms and with the formalities which the law establishes. (1879)

b. Allow foreclosure Art. 2087, supra

Registration creates a real right binding upon third persons.

Kinds of foreclosure Done through court proceedings Judicial foreclosure Governed by Rule 68, Rules of Court

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Governed by Act 3135 Applies only when mortgagee has the special power to sell property in a foreclosure

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Where the REM must be indicated 1. As an entry in the books of the Register of Deeds 2. As an annotation on the back of the TCT/OCT

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55 the holder of the mortgage, all of whom shall be made defendants in the action. (1a)

c. Stipulations Art. 2088, supra Kinds of stipulations in REM contracts and their validity Definition Valid Pactum Appropriation upon default of debtor, No commissorium without foreclosure sale Right of first Gives mortgagee a preferential right Yes refusal should mortgagor decide to sell thing Acceleration Upon default, all future payments also Yes clause become due and demandable Sets a minimum price for which Upset price property should be sold during No foreclosure Stipulates that mortgage covers not Dragnet clause just an existing obligation between or blanket parties, but further loans/credits that Yes mortgage the creditor-mortgagee may extend to the debtor-mortgagor

d. Indivisibility of mortgage Art. 2089, supra Art. 2090, supra (See general provisions of pledge & mortgage for rules.)

e. Alienation of mortgage credit A R T . 2 1 2 8, C C The mortgage credit may be alienated or assigned to a third person, in whole or in part, with the formalities required by law. (1878) Mortgage is a real right owned by the mortgagee, and he may assign or alienate this right to another person, provided that they comply with the legal formalities. But registration of the assignment only serves to bind third parties, and is not required for validity. Hence, an unregistered transfer is binding between the parties.

f.

Foreclosure

There can only be foreclosure when the debt has become due, and the debtor defaults in fulfillment.

RULE 68, RULES of COURT

(If you don’t want to read this/have already read this while reviewing for Civpro [NAKS], skip ahead to the next table for a summary. J)

Section 1. Complaint in action for foreclosure. — In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth the date and due execution of the mortgage; its assignments, if any; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of

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Section 2. Judgment on foreclosure for payment or sale. — If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. (2a) Section 3. Sale of mortgaged property; effect. — When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. (3a) Section 4. Disposition of proceeds of sale. — The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it. (4a) Section 5. How sale to proceed in case the debt is not all due. — If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards as often as more becomes due for principal or interest and other valid charges, the court may, on motion,

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order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper. (5a)

A C T N O . 3 1 3 5 An Act to Regulate the Sale of Property Under Special Powers Inserted In or Annexed To Real-Estate Mortgages (1924) (Sorry, you skip this at your own risk. Nevertheless, there’s still a summary. If you are a #daredevil, next table is a summary.)

Section 6. Deficiency judgment. — If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment; otherwise; the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment. (6a)

Sec. 1. When a sale is made under a special power inserted in or attached to any real-estate mortgage hereafter made as security for the payment of money or the fulfillment of any other obligation, the provisions of the following election shall govern as to the manner in which the sale and redemption shall be effected, whether or not provision for the same is made in the power. Sec. 2. Said sale cannot be made legally outside of the province in which the property sold is situated; and in case the place within said province in which the sale is to be made is subject to stipulation, such sale shall be made in said place or in the municipal building of the municipality in which the property or part thereof is situated.

Section 7. Registration. — A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser. Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title. If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser. (n)

Sec. 3. Notice shall be given by posting notices of the sale for not less than twenty days in at least three public places of the municipality or city where the property is situated, and if such property is worth more than four hundred pesos, such notice shall also be published once a week for at least three consecutive weeks in a newspaper of general circulation in the municipality or city. Sec. 4. The sale shall be made at public auction, between the hours or nine in the morning and four in the afternoon; and shall be under the direction of the sheriff of the province, the justice or auxiliary justice of the peace of the municipality in which such sale has to be made, or a notary public of said municipality, who shall be entitled to collect a fee of five pesos each day of actual work performed, in addition to his expenses. Sec. 5. At any sale, the creditor, trustee, or other persons authorized to act for the creditor, may participate in the bidding and purchase under the same conditions as any other bidder, unless the contrary has been expressly provided in the mortgage or trust deed under which the sale is made.

Section 8. Applicability of other provisions. — The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as the former are not inconsistent with or may serve to supplement the provisions of the latter. (8a)

Sec. 6. In all cases in which an extrajudicial sale is made under the special power hereinbefore referred to, the debtor, his successors in interest or any judicial creditor or judgment creditor of said debtor, or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold, may redeem the same at any time within the term of one year from and after the date of the sale; and such redemption shall be governed by the provisions of sections four hundred and sixty-four to four hundred and sixty-six, inclusive, of the Code of Civil Procedure, in so far as these are not inconsistent with the provisions of this Act.

Procedure for judicial foreclosure 1. Judicial action brought for purpose of foreclosure 2. Hearing 3. Court order to pay within 90-120 days from entry of judgment 4. Sale at public auction 5. Confirmation of sale—Divests mortgagor of his right to the property 6. Registration of confirmation with the Register of Deeds 7. Issuance of TCT, subject to the right of redemption for banks and financial institutions

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57 Procedure for extrajudicial foreclosure

Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and filed in form of an ex parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of the court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered Twentyeight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately. Sec. 8. The debtor may, in the proceedings in which possession was requested, but not later than thirty days after the purchaser was given possession, petition that the sale be set aside and the writ of possession cancelled, specifying the damages suffered by him, because the mortgage was not violated or the sale was not made in accordance with the provisions hereof, and the court shall take cognizance of this petition in accordance with the summary procedure provided for in section one hundred and twelve of Act Numbered Four hundred and ninety-six; and if it finds the complaint of the debtor justified, it shall dispose in his favor of all or part of the bond furnished by the person who obtained possession. Either of the parties may appeal from the order of the judge in accordance with section fourteen of Act Numbered Four hundred and ninetysix; but the order of possession shall continue in effect during the pendency of the appeal. Sec. 9. When the property is redeemed after the purchaser has been given possession, the redeemer shall be entitled to deduct from the price of redemption any rentals that said purchaser may have collected in case the property or any part thereof was rented; if the purchaser occupied the property as his own dwelling, it being town property, or used it gainfully, it being rural property, the redeemer may deduct from the price the interest of one per centum per month provided for in section four hundred and sixty-five of the Code of Civil Procedure. Sec. 10. This Act shall take effect on its approval.

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1. Notice - Posted for 20 days in 3 public places in city/municipality where property is located - If property > P400, published at least once a week for 3 consecutive weeks in newspaper of general circulation in same city/municipality - Notice to mortgagor not required, unless otherwise stipulated 2. Sale at public auction 3. Registration of certificate of sale 4. Redemption period—Possessor must give a bond 5. Issuance of TCT 6. Issuance of writ of possession to mortgagee, if redemption period expires without mortgagor’s exercise of his right (bond no longer required)

Right of mortgagee to recover deficiency The right is available in both judicial and extrajudicial foreclosures. Rule 68, ROC, specifically grants this right to the mortgagee in a judicial foreclosure. Meanwhile, Act 3135 does not specifically prohibit it, so the requirement is only that the extrajudicial foreclosure is valid. However, the mortgagee cannot pursue the deficiency against a third person mortgagor, but must do so against the debtor. The action to recover deficiency prescribes after 10 years.

g. Redemption & equity of redemption Redemption is the right to reacquire mortgaged property free of the lien, within a certain period.

Right of redemption vs. equity of redemption Right of redemption Equity of redemption After extrajudicial foreclosure, generally within 1 year from registration of certificate of sale; except where mortgagor is juridical person, then 3 months from foreclosure or before registration, whichever comes first Before judicial Exceptions: foreclosure, within 90 a. Mortgagor is a days after service of juridical person and When order requiring debtor to mortgagee is a available pay OR after foreclosure bank/financial sale but prior to its institution, then period 3 months from confirmation foreclosure (whether judicial or extrajudicial), or before registration of certificate of sale, or before court confirms the sale, whichever comes first b. Parties agree to extend period

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How exercised

Payment of purchase price + interest and taxes thereon, computed from date of registration of sale AND written notice served on officer who made sale + duplicate filed with Register of Deeds

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11. Extinguishment Causes for extinguishment of REM Payment of amount ordered by court

1. Exercise of right to redemption/equity of redemption 2. Lapse of period of redemption without mortgagor exercising his right 3. Fulfillment of principal obligation

12. Distinguished from equitable mortgage

Requisites of valid extension of redemption period 1. Voluntary agreement of parties to extend redemption period; and 2. Debtor’s commitment to pay redemption price on a fixed date

Art. 1602, supra A R T . 1 6 0 3, C C In case of doubt, a contract purporting to be a sale with right to repurchase shall be construed as an equitable mortgage. (n)

Requisites of valid redemption 1. Redemption is made within 1 year from date of registration of certificate of sale 2. Tender of payment for full amount of #3, made within the prescribed period 3. Payment of the following, to either the purchaser or the officer who made the sale: a. Purchase price of property b. 1% interest per month, counted from date of registration c. Taxes d. Amount of prior lien, if any 4. Written notice of redemption served on officer who made the sale 5. Duplicate of written notice filed with Register of Deeds

Effects of valid exercise of right of redemption It does not “restore ownership” to mortgagor, since ownership is not lost until the redemption period lapses without the exercise of the right. Redemption only defeats purchaser’s inchoate right to the thing and frees thing from encumbrance. The exercise of the right to redemption also admits the validity of the foreclosure, such that the mortgagor is later estopped from impugning it.

A R T . 1 6 0 4, C C The provisions of Article 1602 shall also apply to a contract purporting to be an absolute sale. (n)

A R T . 1 6 0 5, C C In the cases referred to in Articles 1602 and 1604, the apparent vendor may ask for the reformation of the instrument. (n) An equitable mortgage is one that lacks the formalities of a mortgage, but the intent of the parties to burden the property as a security for a principal obligation is still evident, and nothing in the contract is contrary to law. Art. 1602 provides the cases in which a contract, regardless of its nomenclature, will be considered an equitable mortgage. The lien created on the thing thus cannot be defeated by requiring compliance with the requisites of a REM.

PRUDENTIAL BANK v. ALVIAR (2005) A blanket mortgage clause, otherwise known as a dragnet clause, is one that is meant to secure all debts incurred in the past or future. Dragnet clauses, however, will not be automatically applied to other loans that are separately secured. In such a case, the separate securities will first have to be exhausted before the property covered by a dragnet clause can be foreclosed.

Who may exercise the right of redemption Redemption may be exercised not only by the debtor, but also his successors-in-interest, i.e. the following: 1. One to whom the debtor has transferred the right; 2. One to whom the debtor has conveyed his interest in the property, for the purpose of redemption; 3. One who succeeds to the debtor’s interest by operation of law; 4. One or more joint debtors who jointly owned the property sold; or 5. One with a joint interest in the property, or his spouse or heirs.

10. Risk of loss & deterioration Art. 2103, supra The risk of loss is borne by the mortgagor, who remains the owner of the thing.

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Facts: The Alviars executed a real estate mortgage over a parcel of land in order to secure his loan worth P250k—the mortgage contract contained a dragnet clause. Subsequently, they acquired other loans that were secured with other pieces of property. Upon the default of the spouses in one of the subsequently acquired loans, the bank attempted to foreclose the mortgage that secured the first loan through its dragnet clause. Issue: Which between the dragnet or the subsequently constituted securities should be foreclosed first – THE SUBSEQUENTLY ACQUIRED SECURITIES

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Ratio: The constitution of further securities over loans already secured by a dragnet clause gives rise to the presumption that the parties intended to rely on the subsequently constituted securities instead. As a consequence, the same will first have to be exhausted before the creditor will be allowed to exercise his rights on the mortgage covered by the dragnet clause.

period that follows because no distinction is made between a mortgage constituted over the property before or after the auction sale thereof. Only the right to alienate the land through contracts of sale (jus disponendi) is prevented by the foreclosure of the property.

DBP v. CA (1998) An assignment of rights over property to guarantee an obligation is, in effect, a mortgage.

PEOPLE’S BANK & TRUST CO. v. DAHICAN LUMBER CO. (1967) A provision in a real estate mortgage contract stating that (real or personal) property subsequently acquired will be included therein is valid and requires no additional registration for the mortgage over the same to be valid between the parties and third parties. Facts: Dahican loaned various sums of money from the bank and secured the same with a real estate mortgage that contained a provision that extended the mortgage to properties subsequently acquired. When the bank attempted to foreclose the mortgaged properties, Dahican attempted to raise the defense that the mortgage over the movable properties because they were not registered in the Chattel Mortgage registry. Issue: WON the subsequently acquired properties were covered by the deeds of mortgage – YES Held: Provisions in real estate mortgages that include subsequently acquired property are commonplace and legal. The properties did not have to be registered in the chattel mortgage registry because they had been treated as immovable properties by Dahican and the bank by virtue of the provision that included them in the real estate mortgage.

MEDIDA v. CA (1992)

Facts: DBP appropriated the leasehold rights of Lydia without foreclosure proceedings on the strength of a provision in their mortgage that empowered the former to take actual possession of the property as attorney-in-fact. Subsequently, the bank entered into a conditional sale of the leasehold rights with Lydia whose condition was that she would pay the amortizations on the lot. Lydia failed to comply with the condition so DBP sent a notice of rescission and took possession of the fishpond and corresponding leasehold rights again. DBP sold the fishpond and leasehold rights through public bidding. Issue: WON DBP can appropriate the leasehold rights over the fishpond without foreclosure proceedings – NO Held: First, the condition in their agreement that allowed DBP to take possession of the property is not in violation of Art. 2208. It merely provided the appointment of DBP as atty-in-fact to sell or dispose of the property and apply the proceeds thereof to the debt owed to it by Lydia. DBP, however, exceeded its authority when it actually appropriated the leasehold rights without first foreclosing them—remember that they executed a contract of conditional sale which meant that DBP acquired ownership over the property. The assignment merely operated as a security, a guarantee for the payment of the obligation; not an absolute conveyance of title. DBP should have foreclosed the mortgage upon Lydia’s default.

SUICO v. PNB (2007)

The real estate mortgagor remains the absolute owner of the property and what is delimited by the foreclosure and auction sale is the full right to dispose of the land.

Unless the discrepancies in the notice of sale are fraudulent and would gravely misinform and deter potential bidders, they will not render the extrajudicial foreclosure and subsequent sale null and void.

Subsequent mortgagees after foreclosure are subordinate to the rights of the purchaser, and thus only gain the mortgagee’s right of redemption. Facts: During the redemption period for their foreclosed parcel of land, the sps. Dolino entered into a contract of loan with the bank and gave the foreclosed piece of land as security. They defaulted in their loan contract and the bank foreclosed the parcel of land given as security. Gandioncho, the purchaser of the land when it was first foreclosed, came before the court and asked it to nullify the second public auction sale. Issue: WON the real estate mortgage in favor of the bank is void – NO Held: There is no obstacle to the legal creation of such a lien even after the auction sale of the property within the redemption

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The creditor-mortgagee is bound to return the excess, if any, of the purchase price of the foreclosed property over the amount of the principal obligation. Facts: Sps. Suico sought to declare the extrajudicial foreclosure of mortgage conducted by PNB as null and void because of the latter’s failure to account for how the purchase price of the auctioned property was applied to their loan. Further, they also alleged that PNB failed to remit the excess of the purchase price over the amount of their indebtedness to the sheriff. Also, they assailed the auction sale because of discrepancies that existed in the notice of sale regarding the amount owed by the Suicos. Issue:

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1. WON the foreclosure sale was void for discrepancies between the notice of sale and amounts actually owed – NO 2. WON PNB should remit the excess of the proceeds to the Suicos – YES Held: The discrepancy between the amount of petitioners’ obligation as reflected in the Notice of Sale and the amount actually due and collected from the petitioners at the time of the auction sale do not constitute the sort of fraud which renders the extrajudicial foreclosure sale null and void.

Held: The enforcement of such an agreement would be tantamount to the creditor automatically appropriating the property of the debtor upon the latter’s default. It does not matter that such an agreement was freely reached by the parties because it was in contravention of explicit provisions of law.

RAMOS v. OBISPO (2013) The law does not prohibit third parties to a loan from offering their property as security by way of a real estate mortgage. In the absence of evidence signifying fraud or other means of vitiating consent, third party mortgages are presumed to be legal and willingly entered into.

The application of the proceeds from the sale of the mortgaged property to the mortgagor’s obligation is an act of payment, not payment by dacion; hence, it is the mortgagee’s duty to return any surplus in the selling price to the mortgagor.

Facts: Dispute arose between Ramos and Obispo and the bank regarding the constitution of a real estate mortgage over the former’s property. Ramos claimed that Obispo defrauded him into signing a blank real estate mortgage form that Obispo subsequently used to mortgage the former’s property as security for his own loan. As defense, Obispo alleged that Ramos was a third party mortgagor and that no evidence had been presented that pointed to any fraudulent act that he had committed.

BUSTAMANTE v. ROSEL (1999) A stipulation in a mortgage contract that contains an option to buy clause in case of default is in the nature of a pactum commissorrium and is thus void. Facts: Bustamante entered into a contract of loan with Rosel that was secured by a parcel of land. Their agreement contained a stipulation that in the event that Bustamente would default in paying, then Rosel would have the option to buy the land for 200k. Rosel refused to accept payment of the loan and insisted that Bustamante allow him to exercise his contract to buy the land. Issue: WON Rosel can exercise the option to buy the land – NO Held: First, it must be noted that Bustamante attempted to pay the loan even before it was due—it was only the refusal of Rosel to accept payment that kept Bustamante from extinguishing his obligation. Second, the stipulation is void for being in the nature of pactum commissorium. The fact that Rosel would have first needed to pay Bustamante 200k is of no moment; appropriation of the creditor of the mortgaged property without going through foreclosure and an auction sale is void.

ONG v. ROBAN (2008) A dacion en pago agreement between contracting parties that allows the creditor to enforce the same upon default of the debtor is in the nature of pactum commissorium and is thus void.

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Held: Art. 2085 explicitly allows third parties to secure the loans of others by pledging or mortgaging their own property; they are otherwise referred to as accommodation mortgagors. As applied, Ramos was not able provide clear and convincing evidence that the execution of the real estate mortgage was attended to by fraudulent acts of Obispo. “It is not always necessary that the accommodation mortgagor be apprised beforehand of the entire amount of the loan nor should it first be determined before the execution of the SPA in favor of the debtor. This is especially true when the words used by the parties indicate that the mortgage serves as a continuing security for credit obtained as well as future loan availments.” (Belo v. PNB) Dissent (CJ Sereno): The bank should have exercised extraordinary diligence in making sure that the mortgage executed by the parties for a loan that it extended was validly entered into.

ERMITANO v. PAGLAS (2013)

Facts: Ong loaned various amounts from Roban which were secured by a real estate mortgaged that covered several parcels of land. They also entered into a dacion en pago agreement wherein certain properties of Ong were to be accepted as payment if Ong failed to settle his liabilities within a year. Ong then filed before the RTC to annul the agreement for being in the nature of a pactum commissorium. Issue: WON the dacion en pago was void – YES

Issue: WON the mortgage executed by Ramos that secured the obligations of Ramos is valid – YES

Until the expiration of the redemption period, a purchaser of property through foreclosure proceedings has only an inchoate right to the ownership of the property. As a result, the mortgagor is entitled to any rentals and fruits that the foreclosed property may earn during the redemption period. Facts: Ermitano owned a house and lot which he leased to Paglas. Ermitano used the same house and lot as security for the loans extended to him by Yap. When he defaulted in the payment of those loans, Yap foreclosed the property, and then sold the same to Paglas. Ermitano, notwithstanding the

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conveyance of the foreclosed property to Paglas, demanded rental payments from the latter. Issue: WON Ermitano is entitled to the rentals due to him under his lease contract with Paglas – YES Held: A purchaser of foreclosed property only becomes the absolute owner thereof upon the expiration of the redemption period. The mortgagor, in the meantime, is entitled to possession of the property and to whatever earnings that the property may produce. Ermitano is entitled to the rentals that accrued during the redemption period.

SPS. DELOS SANTOS v. METROBANK (2012) Default in payment necessarily grants the mortgagee the right to foreclose the mortgaged property.

Facts: Due to defaulting in their loan, the property of the Lims was foreclosed by DBP and sold through public auction. The Lims now assail the validity of such sale because DBP failed to give them personal notice of foreclosure to them. Such notice was required under their mortgage contract. Issue: WON the failure of DBP to comply with the additional conditions contained in their mortgage contract nullified the foreclosure proceedings – YES Held: Although DBP had every right to foreclose the property, the exercise of such right was subject to compliance to the conditions laid down by the parties to the mortgage contract. The right to something and the valid exercise of that right are two different things.

GOLDENWAY MERCHANDISING CORP. v. EQUITABLE PCI BANK (2013)

Parties to a mortgage may validly stipulate that the mortgagee is authorized to foreclose the mortgage upon the debtor’s default in payment. Where such stipulation has been validly entered into, a writ of preliminary injunction will not be issued to prevent the mortgagee from exercising such a right.

The legislature may validly enact laws that shorten the redemption period with regard to mortgages. Facts: Equitable foreclosed the mortgaged properties of Goldenway upon the latter’s default in payment. The attempt of Goldenway to redeem the property was denied because the redemption period had lapsed under RA 8791. Goldenway then assailed the constitutionality of RA 8791 because it provided a shorter period for redeeming foreclosed properties.

Escalator clauses (stipulations that allow the creditor to unilaterally increase the interest rate upon the occurrence of specified and predetermined events) are valid.

Issue: WON RA 8791 is constitutional – YES Facts: Delos Santos executed a real estate mortgage over a parcel of land to secure their indebtedness to Metrobank. When they defaulted, Metrobank sought to extrajudicially foreclose the mortgaged property. Delos Santos sought a writ of preliminary injunction that the RTC initially granted but subsequently withdrew upon reconsideration. Note that their mortgage contract and the related promissory notes contained a stipulation that Metrobank could extrajudicially foreclose the mortgage upon default.

Held: The enactment of RA 8791 does not impair vested rights or violate the equal protection clause. First, no vested rights are impaired because it only shortens the period for redemption; the right to redeem foreclosed property remains. Second, it does not violate the equal protection clause because it applies equally to all juridical perosns. It is a valid exercise of the state’s police power.

Issue: WON the writ of preliminary injunction may be issued – NO Held: The fact that Delos Santos had defaulted in paying his obligations to Metrobank had been indisputably established. As a result of such default, Metrobank had every right to foreclose the property offered as security. Injunction will not issue in cases wherein the applicant has no right to the relief sought. As applied, Delos Santos had no right to prevent Metrobank from foreclosing his mortgaged property because of his earlier default.

LIM v. DBP (2013) While the law only requires the posting of notices of the sale in 3 public places and the publication of the same in a newspaper of general circulation with regard to the sale of foreclosed properties, the parties may impose additional conditions for the validity of the same. Failure to comply with the additional conditions provided for by the mortgage contract renders the foreclosure sale

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E. PLEDGE, REAL ESTATE M O RTGAGE & CHATTEL MO RTGAGE DISTINGUISHED

Pledge & real estate mortgage distinguished Differences between pledge & real estate mortgage Pledge Real estate mortgage Subject matter Movables Immovables To pledgee or a Delivery third person agreed Delivery not necessary upon Not valid against third persons unless Validity Not valid against third description of thing against third persons unless + date of pledge persons registered appear in a public instrument May be made even Must be made with Sale by debtor without mortgagee’s pledgee’s consent consent

Pledge & chattel mortgage distinguished Similarities between pledge & chattel mortgage 1. Both executed to secure performance of principal obligation 2. Both constituted only on personal property 3. Both are indivisible 4. Both constitute a lien on the property 5. Creditor cannot appropriate property for himself in payment of the debt 6. Property must be sold when debtor defaults 7. Both extinguished by fulfillment of principal obligation or destruction of thing given via De Leon & De Leon, Jr.

Differences between pledge & chattel mortgage Pledge Chattel mortgage Delivery Necessary Not necessary Registration in Required by law in Registration Registry of Property Chattel Mortgage not necessary Register Procedure for Art. 2112, CC, Sec. 14, Act 1508 sale of thing governs governs Debtor has no right Debtor’s right to excess unless Excess of amount goes to excess stipulated or legal to debtor pledge Creditor may not Creditor’s right recover deficiency; Creditor may recover to deficiency contrary stipulation deficiency from debtor void

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VI. ANTICHRESIS 5. Gratuitous or onerous

A. CO NCEPT A R T . 2 1 3 2, C C

It is gratuitous when a third person gives the fruits of his property, and onerous when it is the debtor who gives the fruits of his property.

By the contract of antichresis the creditor acquires the right to receive the fruits of an immovable of his debtor, with the obligation to apply them to the payment of the interest, if owing, and thereafter to the principal of his credit. (1881)

6. Formal

In a contract of antichresis, the creditor receives the rights to the fruits of an immovable owned by the debtor, and the creditor has the obligation to apply said fruits to the interest of the principal obligation, if owing, and thereafter, to the principal obligation itself.

The contract must be in writing in order to be valid.

C. ESSENTIAL REQ UISITES

1. Consent The parties must have capacity to consent to a contract.

B. CHARACTERISTICS

2. Object

A R T . 2 1 3 9, C C The last paragraph of Article 2085, and Articles 2089 to 2091 are applicable to this contract. (1886a)

Art. 2132, supra General rule: The antichresis covers all the fruits of the immovable thing. The immovable itself is not covered by the antichresis.

Art. 2091, supra Characteristics of antichresis (CUNAGOF) 1. 2. 3. 4. 5. 6.

Consensual Unilateral Nominate Accessory Gratuitous or onerous Formal

Exception: The parties may stipulate that only certain fruits of the immovable be given in antichresis.

3. Cause Art. 1350, supra

1. Consensual

D. PARTIES

Delivery is not required for the validity of the contract, but required only in order that the creditor may receive the fruits.

2. Unilateral

Art. 2085, supra Art. 2132, supra E. FO RM

It is unilateral because it imposes certain obligations only upon the antichretic creditor.

A R T . 2 1 3 4, C C The amount of the principal and of the interest shall be specified in writing; otherwise, the contract of antichresis shall be void. (n)

3. Nominate

What must be written

It is nominate because the Civil Code specifically gave it a name.

To be valid, a contract of antichresis must contain: 1. The amount of the principal; and 2. The amount of the interest to be paid.

4. Accessory A contract of antichresis secures a principal obligation.

F. O BLIGATIO NS of the CREDITO R Kinds of obligations that may be secured by antichresis Valid As to validity Voidable Unenforceable Pure As to conditionality Conditional (suspensive or resolutory) As to time Present obligations Payment As to specific obligation Performance

Summary of creditor’s obligations 1. Apply fruits to interest and principal 2. Pay taxes and charges upon the estate

1. Apply fruits to interest & principal Art. 2132, supra A R T . 2 1 3 3, C C The actual market value of the fruits at the time of the application thereof to the interest and principal shall be the measure of such application. (n)

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A R T . 2 1 3 8, C C The contracting parties may stipulate that the interest upon the debt be compensated with the fruits of the property which is the object of the antichresis, provided that if the value of the fruits should exceed the amount of interest allowed by the laws against usury, the excess shall be applied to the principal. (1885a)

Summary of rules on application of fruits 1. Taxes and charges upon estate Payments to 2. Expenses necessary for preservation and which fruits repair must be applied 3. Interest, if owing 4. Principal obligation Actual market value at the time fruits are to Value of fruits be applied General rule: All fruits may be applied to payments What fruits may Exception: Parties may stipulate that only be applied certain fruits be applied, and the rest redound to debtor

2. Pay taxes & charges upon the estate A R T . 2 1 3 5, C C The creditor, unless there is a stipulation to the contrary, is obliged to pay the taxes and charges upon the estate. He is also bound to bear the expenses necessary for its preservation and repair. The sums spent for the purposes stated in this article shall be deducted from the fruits. (1882)

1. Ownership A R T . 2 1 3 6, C C The debtor cannot reacquire the enjoyment of the immovable without first having totally paid what he owes the creditor. But the latter, in order to exempt himself from the obligations imposed upon him by the preceding article, may always compel the debtor to enter again upon the enjoyment of the property, except when there is a stipulation to the contrary. (1883)

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2. Creditor’ s acquisition of ownership upon default A R T . 2 1 3 7, C C The creditor does not acquire the ownership of the real estate for non-payment of the debt within the period agreed upon. Every stipulation to the contrary shall be void. But the creditor may petition the court for the payment of the debt or the sale of the real property. In this case, the Rules of Court on the foreclosure of mortgages shall apply. (1884a) Ownership upon the debtor’s default is pactum commissorium, and is thus prohibited. Appropriation is not the proper remedy for a creditor to pursue the amount of his credit.

Remedies of a creditor upon debtor’s default 1. Action for specific performance 2. Judicial foreclosure 3. Extrajudicial foreclosure These are alternative—one remedy precludes the others.

Summary of rules on taxes & charges 1. Taxes What charges 2. Expenses necessary for preservation are covered 3. Expenses of repair Charges must be deducted from the fruits Creditor is obligated to render an accounting If fruits are not sufficient, the creditor must How charges answer for these expenses must be paid If the creditor does not want to incur the expenses, he may return possession of the immovable to the debtor, without prejudice to the continuing right to receive the fruits

G. SPECIAL RULES

Summary on rules of ownership Does not occur Enjoyed by creditor Possession in the concept of holder— therefore creditor cannot acquire Right to possession immovable by prescription without repudiating status as antichretic creditor When depositor may Upon total payment of what is owed to reacquire immovable the creditor

Transfer of ownership

3. Indivisibility Art. 2138, supra Art. 2089, supra Art. 2090, supra The provisions of indivisibility of pledge and mortgage are also applicable to antichresis. Please see discussion of those provisions.

H. RISK of LO SS & DETERIO RATIO N The rule on risk of loss or deterioration in case of force majeure is res perit domino. Hence, the debtor, who continues to be the owner of both the immovable and its fruits, must bear loss or deterioration in such case.

I.

EXTINGUISHM ENT Causes for extinguishment of antichresis 1. Fulfillment of principal obligation 2. Loss of the thing given in antichresis

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J. DISTINGUISHED FRO M O THER CO NTRACTS

1. Pledge Differences between pledge & antichresis Pledge Antichresis Subject matter Movable property Fruits of immovable Perfection Upon delivery By consent Kind Real Consensual

Facts: To secure a loan of P2000, Fernando executed a deed of mortgage in favor of Diego over two pieces of land. After Diego filed to timely pay his debts, Fernando proceeded to foreclose the mortgage. As defense, Diego claimed that the contract between them was actually one of antichresis because there was no stipulation of interest and because there was transfer of possession. Further, he alleged that Fernando had received a total of 120 cavans of palay from the fruits of his properties which was more than enough to pay for his indebtedness. Issue: WON the contract between them was an antichresis contract – NO

2. Real estate mortgage Differences between real estate mortgage & antichresis REM Antichresis Subject matter Immovable thing Fruits of immovable Usually retained by Given to creditor so that Possession debtor he may derive fruits Creditor entitled only fruits, so no real right Creditor has a real Kind of right created, unless right over property registered in the Registry of Property Creditor obliged to pay, Pay taxes & Creditor has no unless there is charges obligation to pay stipulation to the contrary Creditor must apply Application of Creditor not obliged fruits to interest (if fruits to apply fruits owing) and principal

Held: Even if the contract between the parties stipulated a transfer of possession for the purpose of the creditor-mortgagee gathering the fruits of the property, it did not contain a stipulation that required the creditor-mortgagee to apply the fruits to the payment of interest and then to the payment of the principal obligation. Hence the contract is one of mortgage and not antichresis. However, given the attendant circumstances, the Court said that Fernando could not appropriate the fruits without accounting for the same. As a mortgagee in possession, he has the same rights as an antichretic creditor.

DIEGO v. FERNANDO (1960) For a contract to be antichresis, it must be expressly agreed between creditor and debtor that the creditor, having been given possession of the properties given as security, is to apply their fruits to the payment of the interest, if owing, and thereafter to the principal of his credit. Rights & obligations of antichretic creditor 1. If the mortgagee acquires possession in any lawful manner, he is entitled to retain such possession until the indebtedness is satisfied and the property redeemed 2. That the non-payment of the debt within the term agreed does not vest the ownership of the property in the creditor 3. That the general duty of the mortgagee in possession towards the premises is that of the ordinary prudent owner 4. That the mortgagee must account for the rents and profits of the land, or its value for purposes of use and occupation, any amount thus realized going towards the discharge on the mortgage debt 5. That if the mortgage remains in possession after the mortgage debt has been satisfied, he becomes a trustee for the mortgagor as to the excess of the rents and profits over such debt 6. That the mortgagor can only enforce his rights to the land by an equitable action for an account and to redeem

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VII. CONCURRENCE & PREFERENCE of CREDITS A. M EANING of CO NCURRENCE & PREFERENCE of CREDITS

a. Family home & support

Concurrence of credits

A R T . 1 5 3, F A M I L Y C O D E The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent allowed by law.

Two or more creditors possess equal rights or privileges over the same property or all of the property of a debtor.

Preference of credit A creditor has a right to be preferred in the payment of his claim above the others, i.e. to be paid first, out of the debtor’s assets.

A R T . 2 0 5, F A M I L Y C O D E

B. NATURE & EFFECT of PREFERENCE Nature of preference

An exception to the general rule of concurrence

Effect of preference

Does not create an interest in or lien on the property; simply creates for one creditor the right to be paid ahead of other creditors

b. Properties exempt from execution under the Rules of Court SEC. 13, RULE 68, RULES of COURT

C. W HEN RULES APPLY The rules on preference apply where two or more creditors have separate and distinct claims against the same debtor, who has insufficient property. Further, the credits must already be due. Thus, in order for the preference to take effect, there must first be the proper proceedings for the debtor’s properties to be inventoried and liquidated and his creditors’ claims established.

D. GENERAL RULES

1. Liability of debtor A R T . 2 2 3 6, C C The debtor is liable with all his property, present and future, for the fulfillment of his obligations, subject to the exemptions provided by law. (1911a)

Classification of debtor’s property 1. 2. 3. 4.

Exempt property Property subject to special preferred credit Property subject to ordinary preferred credit Free property

The general rule is that all of the debtor’s property, both existing and future, may be pursued to fulfill his obligations. The exceptions are provided below.

2. Exempt properties Summary of debtor’s exempt properties 1. The family home; 2. Any money or property obtained in support; 3. Properties subject from attachment and execution under the Rules of Court; 4. Free patent or homestead land; 5. Assets that belong to the conjugal partnership/absolute community of property; 6. Undivided share on interest in co-owned property; and 7. Property under legal custody 8. Property held in trust by insolvent debtor

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The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution.

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Property exempt from execution. — Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood; (c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; (d) His necessary clothing and articles for ordinary personal use, excluding jewelry; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos; (f) Provisions for individual or family use sufficient for four months; (g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value; (h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood; (i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government; (m) Properties specially exempted by law.

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But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. (12a)

f.

Property under legal custody has been held to be exempt from attachment or execution (Springer v. Odlin, 3 Phil 344, 1903).

c. Free patent or homestead land

3. Insolvency

SEC. 118, PUBLIC LAND ACT (CA 141)

a. Meaning

Except in favor of the Government or any of its branches, units or institutions, or legally constituted banking corporations, lands acquired under free patent or homestead provisions shall not be subject to encumbrance or alienation from the date of the approval of the application and for a term of five years from and after the date of issuance of the patent or grant nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period; but the improvements or crops on the land may be mortgaged or pledged to qualified persons, associations, or corporations. No alienation, transfer, or conveyance of any homestead after five years and before twenty-five years after issuance of title shall be valid without the approval of the Secretary of Agriculture and Natural Resources, which approval shall not be denied except on constitutional and legal grounds. (As amended by Com. Act No. 456, approved June 8, 1939.

S E C . 4 ( P ), F R I A Insolvent shall refer to the financial condition of a debtor that is generally unable to pay its or his liabilities as they fall due in the ordinary course of business or has liabilities that are greater than its or his assets.

b. Governing law A R T . 2 2 3 7, C C Insolvency shall be governed by special laws insofar as they are not inconsistent with this Code. (n) The old Insolvency Law was superseded by the Financial Rehabilitation and Insolvency Act (FRIA) of 2010.

c. Applicability to properties held in trust

d. Assets belonging to conjugal partnership/absolute community

A R T . 2 2 4 0, C C Property held by the insolvent debtor as a trustee of an express or implied trust, shall be excluded from the insolvency proceedings. (n)

A R T . 2 2 3 8, C C So long as the conjugal partnership or absolute community subsists, its property shall not be among the assets to be taken possession of by the assignee for the payment of the insolvent debtor's obligations, except insofar as the latter have redounded to the benefit of the family. If it is the husband who is insolvent, the administration of the conjugal partnership of absolute community may, by order of the court, be transferred to the wife or to a third person other than the assignee. (n)

Where the insolvent debtor is merely a trustee, and not the owner, of certain property, these should be excluded from insolvency proceedings.

E. GENERAL CATEGO RIES of CREDIT

1. Special preferred credits Tiers of special preferred credits 1. Taxes, which enjoy absolute preference 2. All other special preferred credits, paid pro rata

Requisites for application of this exemption 1. The partnership or community subsists; and 2. The obligations of the insolvent spouse have not redounded to the family’s benefit.

Special preferred credits are merely enumerated in Arts. 2241 and 2242; these provisions do not give an order of payment (in contrast to ordinary preferred credits under Art. 2244). There is only concurrence among the credits enumerated.

e. Undivided share on interest in the co-owned property

SPCs do, however, create a lien on the properties specified, which may either be movables or immovables. Hence, the provisions on pledge and mortgage are also applicable to them.

A R T . 2 2 3 9, C C If there is property, other than that mentioned in the preceding article, owned by two or more persons, one of whom is the insolvent debtor, his undivided share or interest therein shall be among the assets to be taken possession of by the assignee for the payment of the insolvent debtor's obligations. (n)

2. Ordinary preferred credits Ordinary preferred credits are set forth in Art. 2244, and should be paid in the order specified therein.

The undivided share is an asset of the co-owner/insolvent debtor. An assignee of one co-owner’s share has no right to the share of the other co-owners.

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Property under legal custody

3. Common credits Common credits are described in Art. 2245, and enjoy no preference. They shall be paid pro rata.

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F. CLASSIFICATIO N of CREDITS Sequence of payment 1. Taxes 2. All special preferred credits specified in Arts. 2241 (movables) and 2242 (immovables), paid pro rata 3. If there is excess, it shall go to the debtor’s free property 4. If there is deficiency, it shall the creditors must be paid according to Art. 2244 (ordinary preferred credits

1. Preferred credits with respect to specific movable property

A R T . 2 2 4 3, C C

A R T . 2 2 4 1, C C

The claims or credits enumerated in the two preceding articles shall be considered as mortgages or pledges of real or personal property, or liens within the purview of legal provisions governing insolvency. Taxes mentioned in No. 1, Article 2241, and No. 1, Article 2242, shall first be satisfied. (n)

With reference to specific movable property of the debtor, the following claims or liens shall be preferred: (1) Duties, taxes and fees due thereon to the State or any subdivision thereof; (2) Claims arising from misappropriation, breach of trust, or malfeasance by public officials committed in the performance of their duties, on the movables, money or securities obtained by them; (3) Claims for the unpaid price of movables sold, on said movables, so long as they are in the possession of the debtor, up to the value of the same; and if the movable has been resold by the debtor and the price is still unpaid, the lien may be enforced on the price; this right is not lost by the immobilization of the thing by destination, provided it has not lost its form, substance and identity; neither is the right lost by the sale of the thing together with other property for a lump sum, when the price thereof can be determined proportionally; (4) Credits guaranteed with a pledge so long as the things pledged are in the hands of the creditor, or those guaranteed by a chattel mortgage, upon the things pledged or mortgaged, up to the value thereof; (5) Credits for the making, repair, safekeeping or preservation of personal property, on the movable thus made, repaired, kept or possessed; (6) Claims for laborers' wages, on the goods manufactured or the work done; (7) For expenses of salvage, upon the goods salvaged; (8) Credits between the landlord and the tenant, arising from the contract of tenancy on shares, on the share of each in the fruits or harvest; (9) Credits for transportation, upon the goods carried, for the price of the contract and incidental expenses, until their delivery and for thirty days thereafter; (10) Credits for lodging and supplies usually furnished to travellers by hotel keepers, on the movables belonging to the guest as long as such movables are in the hotel, but not for money loaned to the guests;

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(11) Credits for seeds and expenses for cultivation and harvest advanced to the debtor, upon the fruits harvested; (12) Credits for rent for one year, upon the personal property of the lessee existing on the immovable leased and on the fruits of the same, but not on money or instruments of credit; (13) Claims in favor of the depositor if the depositary has wrongfully sold the thing deposited, upon the price of the sale. In the foregoing cases, if the movables to which the lien or preference attaches have been wrongfully taken, the creditor may demand them from any possessor, within thirty days from the unlawful seizure. (1922a)

A R T . 2 2 4 6, C C Those credits which enjoy preference with respect to specific movables, exclude all others to the extent of the value of the personal property to which the preference refers.

A R T . 2 2 4 7, C C If there are two or more credits with respect to the same specific movable property, they shall be satisfied pro rata, after the payment of duties, taxes and fees due the State or any subdivision thereof. (1926a)

A R T . 2 2 5 0, C C The excess, if any, after the payment of the credits which enjoy preference with respect to specific property, real or personal, shall be added to the free property which the debtor may have, for the payment of the other credits. (1928a)

2. Preferred credits with respect to specific immovable property A R T . 2 2 4 2, C C With reference to specific immovable property and real rights of the debtor, the following claims, mortgages and liens shall be preferred, and shall constitute an encumbrance on the immovable or real right: (1) Taxes due upon the land or building; (2) For the unpaid price of real property sold, upon the immovable sold; (3) Claims of laborers, masons, mechanics and other workmen, as well as of architects, engineers and contractors, engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals or other works; (4) Claims of furnishers of materials used in the

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(5) (6)

(7)

(8) (9) (10)

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construction, reconstruction, or repair of buildings, canals or other works, upon said buildings, canals or other works; Mortgage credits recorded in the Registry of Property, upon the real estate mortgaged; Expenses for the preservation or improvement of real property when the law authorizes reimbursement, upon the immovable preserved or improved; Credits annotated in the Registry of Property, in virtue of a judicial order, by attachments or executions, upon the property affected, and only as to later credits; Claims of co-heirs for warranty in the partition of an immovable among them, upon the real property thus divided; Claims of donors or real property for pecuniary charges or other conditions imposed upon the donee, upon the immovable donated; Credits of insurers, upon the property insured, for the insurance premium for two years. (1923a)

(5) Credits and advancements made to the debtor for support of himself or herself, and family, during the last year preceding the insolvency; (6) Support during the insolvency proceedings, and for three months thereafter; (7) Fines and civil indemnification arising from a criminal offense; (8) Legal expenses, and expenses incurred in the administration of the insolvent's estate for the common interest of the creditors, when properly authorized and approved by the court; (9) Taxes and assessments due the national government, other than those mentioned in Articles 2241, No. 1, and 2242, No. 1; (10) Taxes and assessments due any province, other than those referred to in Articles 2241, No. 1, and 2242, No. 1; (11) Taxes and assessments due any city or municipality, other than those indicated in Articles 2241, No. 1, and 2242, No. 1; (12) Damages for death or personal injuries caused by a quasi-delict; (13) Gifts due to public and private institutions of charity or beneficence; (14) Credits which, without special privilege, appear in (a) a public instrument; or (b) in a final judgment, if they have been the subject of litigation. These credits shall have preference among themselves in the order of priority of the dates of the instruments and of the judgments, respectively. (1924a)

Art. 2243, supra A R T . 2 2 4 8, C C Those credits which enjoy preference in relation to specific real property or real rights, exclude all others to the extent of the value of the immovable or real right to which the preference refers.

A R T . 2 2 4 9, C C If there are two or more credits with respect to the same specific real property or real rights, they shall be satisfied pro rata, after the payment of the taxes and assessments upon the immovable property or real right. (1927a)

A R T. 1 1 0, L A B O R C O D E In the event of bankruptcy or liquidation of an employer’s business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid. (As amended by Sec. 1, Rep. Act No. 6715, March 21, 1989).

Art. 2250, supra

3. Order of preference with respect to other properties of the debtor A R T . 2 2 4 4, C C With reference to other property, real and personal, of the debtor, the following claims or credits shall be preferred in the order named: (1) Proper funeral expenses for the debtor, or children under his or her parental authority who have no property of their own, when approved by the court; (2) Credits for services rendered the insolvent by employees, laborers, or household helpers for one year preceding the commencement of the proceedings in insolvency; (3) Expenses during the last illness of the debtor or of his or her spouse and children under his or her parental authority, if they have no property of their own; (4) Compensation due the laborers or their dependents under laws providing for indemnity for damages in cases of labor accident, or illness resulting from the nature of the employment;

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Art. 110 of the Labor Code is an ordinary preferred credit, whose effect is to raise #2 of Art. 2244 to first priority.

4. Other credits enjoying no preference A R T . 2 2 4 5, C C Credits of any other kind or class, or by any other right or title not comprised in the four preceding articles, shall enjoy no preference. (1925)

A R T . 2 2 5 1, C C Those credits which do not enjoy any preference with respect to specific property, and those which enjoy preference, as to the amount not paid, shall be satisfied according to the following rules: (1) In the order established in Article 2244; (2) Common credits referred to in Article 2245 shall be paid pro rata regardless of dates. (1929a)

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DE BARETTO v. VILLANUEVA (1961) Art. 2242 applies only when there’s an actual concurrence of credits owed to several creditors.

The Civil Code provisions on concurrence and preference of credits may only be invoked when all the claims of the preferred creditors may be bindingly adjudicated in proper proceedings. Facts: Rosario Cruzado took out a loan from RFC and mortgaged her land, but she failed to pay, so RFC foreclosed and acquired the land. Later, RFC resold the land to her conditionally, authorizing her to sell it. She sold it to respondent Villanueva, who borrowed money from petitioner De Baretto to pay for the land. To secure the loan, Villanueva mortgaged the land to De Baretto (silly woman). When Villanueva failed to pay both Cruzado for the value of the land and De Baretto the value of the loan, both her creditors filed actions—Cruzado, to recover the land, and De Baretto, to foreclose upon it. When the lower court granted the foreclosure to De Baretto, Cruzado filed to attach a “vendor’s lien” to the property. Issue: Whether Cruzado may attach a vendor’s lien to the property. NO. (The court held yes in 1961, but reversed itself in 1962.) Held: Cruzado cannot claim the proceeds of the foreclosure sale, because it is not the proper proceeding contemplated by law to enforce preferences. Her claim as an unpaid vendor thus did not acquire the rank of a statutory lien co-equal to the recorded encumbrance of a mortgage. Hence, Cruzado’s claim is only subordinate to the mortgage to De Baretto.

Facts: Dispute arose because the municipality failed to pay the construction company the amounts owed to it for the construction of the public market. The construction company filed a case against the municipality for breach of contract, specific performance, and collection of money with a prayer for preliminary attachment and the enforcement of creditor’s lien. The RTC ruled favorably and granted all the reliefs prayed for. By virtue of the creditor’s lien, the RTC allowed the construction company to take possession of the public market and to apply whatever proceeds it may earn to the amount owed to it by the municipality. Issue: WON the contractor’s lien was properly granted – NO Held: A creditor’s lien on the strength of Art. 2242 may only be issued by the court within the context of a proceeding where the claims of preferred creditors may be bindingly adjudicated. As applied to the case at bar, there were no proceedings of the sort that would allow for all the claims of the preferred creditors to be adjudicated (note that the construction company filed a complaint for breach of contract and specific performance) – the claims of other potential preferred creditors as regards the construction of the public market place could not be adjudicated within the context of JL Bernardo’s suit against the municipality.

CORDOVA v. REYES (2007) Art. 2241 only grants a person the status of preferred creditor when what he claims is a specific movable property—money is a generic piece of property.

DBP v. CA (2001) Extrajudicial foreclosures are not the proper liquidation proceedings required by the civil code before the provisions on concurrence and preference of credits (in this case Art. 2242) may be applied. Facts: Upon foreclosing the mortgaged properties of MMIC, PNB and DBP assigned the rights over the foreclosed properties to Nocnoc Mining, Maricalum Mining Corp., and the Asset Privatization Trust. Before the foreclosed properties could be sold, however, Remington filed a complaint against all of the previously mentioned parties in order to secure payment for construction materials and merchandise that MMIC obtained from it on credit. It asserted its rights as a preferred creditor under Art. 2242. Issue: WON Remington, as a preferred creditor, may recover the amount it extended to MMIC through the extrajudicial foreclosure proceedings initiated by PNB et al.—NO Held: In order to avail of the benefits provided by Art. 2242 to preferred creditors, all the preferred creditors must be convened and their claims ascertained in the proper proceeding. All their claims must be bindingly adjudicated. Extrajudicial foreclosure sales are not the proceedings envisioned by the law for the enforcement of the preferred creditor’s claims.

Facts: Cordova’s share of stock were sold without his consent and the proceeds of the said sale were added to the assets of Philfinance which was undergoing receivership. Cordova filed a petition before the SEC in order to recover the monetary value of the stocks. The SEC ruled that he was a mere ordinary creditor and thus not entitled to recover the entire monetary equivalent of his alienated stocks. Cordova argued that under Art 2241, he was a preferred creditor because his stocks were misappropriated by public officials. Issue: WON he was a preferred creditor – NO Held: Art. 2241 applies only in cases where the property involved is specific movable property. As applied to the case at bar, the stocks whose value he wished to recover seized to be specific movable property the moment they were sold. The sale of the shares of stock had the effect of converting the same from specific or determinate movable properties to generic property that was capable of commingling. Note: Sir says that, using the provisions on Sales, he should still have been able to recover his property because it was alienated without his consent

PDIC v. BIR

JL BERNARDO CONSTRUCTION v. CA (2000) APO ESPAÑOLA & CARLOS MARIN

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The PDIC need not obtain a tax clearance before

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proceeding with liquidation proceedings for the following reasons: 1. Banks under liquidation by the PDIC as ordered by the monetary board constitute special cases governed by special rules and procedures that do not require a tax clearance from the BIR 2. The interest of the BIR in liquidation proceedings is best served by a final tax return; it is unreasonable for the court to require a tax clearance before it approves a project of distribution regarding a bank under liquidation 3. Requiring a tax clearance runs contrary to the spirit and intent of the law because it would make the tax liabilities of the bank under liquidation absolutely preferred in all instances—the law does not mean to grant taxes owed the government a preference to that extent. Facts: The Monetary Board placed RBTI under receivership and appointed PDIC as receiver. PDIC determined that RBTI was insolvent and proceeded to commence liquidation proceedings with the approval of the Monetary Board. The BIR, as creditor, prayed that the liquidation proceedings be suspended until PDIC had secured a tax clearance with regard to the bank’s obligations in compliance with the Tax Reform Act of 1997. Issue: WON the PDIC needed to secure a tax clearance before it could carry out the duly-approved liquidation proceedings – NO Held: [see doctrine]

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VIII. SPECIAL LAWS A. FINANCIAL REHABILITATIO N & INSO LVENCY ACT of 2010 (FRIA)

c. Rehabilitation S E C . 4 ( G G ), F R I A Rehabilitation shall refer to the restoration of the debtor to a condition of successful operation and solvency, if it is shown that its continuance of operation is economically feasible and its creditors can recover by way of the present value of payments projected in the plan, more if the debtor continues as a going concern than if it is immediately liquidated.

1. Purpose of the law S E C . 2, F R I A Declaration of Policy. - It is the policy of the State to encourage debtors, both juridical and natural persons, and their creditors to collectively and realistically resolve and adjust competing claims and property rights. In furtherance thereof, the State shall ensure a timely, fair, transparent, effective and efficient rehabilitation or liquidation of debtors. The rehabilitation or liquidation shall be made with a view to ensure or maintain certainly and predictability in commercial affairs, preserve and maximize the value of the assets of these debtors, recognize creditor rights and respect priority of claims, and ensure equitable treatment of creditors who are similarly situated. When rehabilitation is not feasible, it is in the interest of the State to facilities a speedy and orderly liquidation of these debtor's assets and the settlement of their obligations.

d. Liquidation S E C . 4 ( U ), F R I A Liquidation shall refer to the proceedings under Chapter V of this Act.

The purpose of the FRIA is to provide for a fair procedure for the liquidation and rehabilitation of an insolvent debtor.

Types of proceedings under the FRIA Debtor asks for a reprieve in his obligation to Suspension of pay outstanding obligations, because of the payments absence of liquid assets Seeks to restore debtor to financially Rehabilitation successful operation and solvency As a last resort, debtor’s assets are inventoried Liquidation and used to discharge his liabilities

3. Suspension of payment

2. Concepts

a. Concept a. Insolvent The purpose of a suspension is to give the debtor breathing space, so he can liquidate or acquire properties in order to pay.

S E C . 4 ( P ), F R I A Insolvent shall refer to the financial condition of a debtor that is generally unable to pay its or his liabilities as they fall due in the ordinary course of business or has liabilities that are greater than its or his assets.

b. To whom available Only an individual debtor may file for suspension of payment. Hence, a suspension of payment is always voluntary.

The definition of an “insolvent” under the FRIA is an expanded one, covering also a debtor who is illiquid.

Insolvency vs. illiquidity Insolvency Illiquidity Liabilities > assets Liabilities < assets Assets not sufficient to pay BUT assets not in cash—therefore for liabilities cannot pay when debt is due

b. Suspension of payment S E C . 9 4, F R I A Petition. - An individual debtor who, possessing sufficient property to cover all his debts but foreseeing the impossibility of meeting them when they respectively fall due, may file a verified petition that he be declared in the state of suspension of payments by the court of the province or city in which he has resides for six (6) months prior to the filing of his petition. He shall attach to his petition, as a minimum: (a) a schedule of debts and liabilities; (b) an inventory of assess; and (c) a proposed agreement with his creditors.

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c. Procedure Procedure for suspension of payments 1. Filing of petition by the debtor—operates as: - Stay of all collection proceedings by creditors - Prohibits payment to any creditor - Prohibits debtor from selling or encumbering property Does not cover secured creditors 2. Action by court—finding that petition is sufficient in form and substance 3. Court order to convene creditors for approval or disapproval - Quorum requirement: Creditors representing 3/5 of total liabilities - Approval requirement: 2/3 of creditors representing 3/5 of total liabilities - Secured creditors need not attend - If no agreement is reached between the creditors, or there is no quorum, the court may rule upon petition as it pleases 4. Approval or disapproval—Creditors may object and court will rule whether to sustain (no agreement) or to disregard (agreement approved) 5. Court order

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73 lapse when three (3) months shall have passed without the proposed agreement being accepted by the creditors or as soon as such agreement is denied. No creditor shall sue or institute proceedings to collect his claim from the debtor from the time of the filing of the petition for suspension of payments and for as long as proceedings remain pending except: (a) Those creditors having claims for personal labor, maintenance, expense of last illness and funeral of the wife or children of the debtor incurred in the sixty (60) days immediately prior to the filing of the petition; and (b) Secured creditors.

- Agreement must contain a schedule of liabilities - Binding upon creditors: a. Whose debts are included in the schedule b. Who were properly summoned (therefore binding even upon those who made objections) - Agreement NOT binding upon secured creditors, who may enforce the debtor’s liability according the agreement

Filing of petition Sec. 94, FRIA, supra

Creditors’ meeting

Action on petition

S E C . 9 7, F R I A Creditors' Meeting. - The presence of creditors holding claims amounting to at least three-fifths (3/5) of the liabilities shall be necessary for holding a meeting. The commissioner appointed by the court shall preside over the meeting and the clerk of court shall act as the secretary thereof, subject to the following rules: (a) The clerk shall record the creditors present and amount of their respective claims; (b) The commissioner shall examine the written evidence of the claims. If the creditors present hold at least three-fifths (3/5) of the liabilities of the individual debtor, the commissioner shall declare the meeting open for business; (c) The creditors and individual debtor shall discuss the propositions in the proposed agreement and put them to a vote; (d) To form a majority, it is necessary: (1) That two-thirds (2/3) of the creditors voting unite upon the same proposition; and (2) That the claims represented by said majority vote amount to at least three- fifths (3/5) of the total liabilities of the debtor mentioned in the petition; and (e) After the result of the voting has been announced, all protests made against the majority vote shall be drawn up, and the commissioner and the individual debtor together with all creditors taking part in the voting shall sign the affirmed propositions. No creditor who incurred his credit within ninety (90) days prior to the filing of the petition shall be entitled to vote.

S E C . 9 5, F R I A Action on the Petition. - If the court finds the petition sufficient in form and substance, it shall, within five (5) working days from the filing of the petition, issue an Order: (a) Calling a meeting of all the creditors named in the schedule of debts and liabilities at such time not less than fifteen (15) days nor more than forty (40) days from the date of such Order and designating the date, time and place of the meeting; (b) Directing such creditors to prepare and present written evidence of their claims before the scheduled creditors' meeting; (c) Directing the publication of the said order in a newspaper of general circulation published in the province or city in which the petition is filed once a week for two (2) consecutive weeks, with the first publication to be made within seven (7) days from the time of the issuance of the Order; (d) Directing the clerk of court to cause the sending of a copy of the Order by registered mail, postage prepaid, to all creditors named in the schedule of debts and liabilities; (e) Forbidding the individual debtor from selling, transferring, encumbering or disposing in any manner of his property, except those used in the ordinary operations of commerce or of industry in which the petitioning individual debtor is engaged so long as the proceedings relative to the suspension of payments are pending; (f) Prohibiting the individual debtor from making any payment outside of the necessary or legitimate expenses of his business or industry, so long as the proceedings relative to the suspension of payments are pending; and (g) Appointing a commissioner to preside over the creditors' meeting.

S E C . 9 8, F R I A Persons Who May Refrain From Voting. - Creditors who are unaffected by the Suspension Order may refrain from attending the meeting and from voting therein. Such persons shall not be bound by any agreement determined upon at such meeting, but if they should join in the voting they shall be bound in the same manner as are the other creditors.

S E C . 9 5, F R I A Actions Suspended. - Upon motion filed by the individual debtor, the court may issue an order suspending any pending execution against the individual debtor. Provide, That properties held as security by secured creditors shall not be the subject of such suspension order. The suspension order shall

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S E C . 9 9, F R I A Rejection of the Proposed Agreement. - The proposed agreement shall be deemed rejected if the number of

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creditors required for holding a meeting do not attend thereat, or if the two (2) majorities mentioned in Section 97 hereof are not in favor thereof. In such instances, the proceeding shall be terminated without recourse and the parties concerned shall be at liberty to enforce the rights which may correspond to them.

S E C . 1 0 2, F R I A Failure of Individual Debtor to Perform Agreement. - If the individual debtor fails, wholly or in part, to perform the agreement decided upon at the meeting of the creditors, all the rights which the creditors had against the individual debtor before the agreement shall revest in them. In such case the individual debtor may be made subject to the insolvency proceedings in the manner established by this Act.

Approval of agreement & objections S E C . 1 0 0, F R I A Objections. - If the proposal of the individual debtor, or any amendment thereof made during the creditors' meeting, is approved by the majority of creditors in accordance with Section 97 hereof, any creditor who attended the meeting and who dissented from and protested against the vote of the majority may file an objection with the court within ten (10) days from the date of the last creditors' meeting. The causes for which objection may be made to the decision made by the majority during the meeting shall be: (a) defects in the call for the meeting, in the holding thereof and in the deliberations had thereat which prejudice the rights of the creditors; (b) fraudulent connivance between one or more creditors and the individual debtor to vote in favor of the proposed agreement; or (c) fraudulent conveyance of claims for the purpose of obtaining a majority. The court shall hear and pass upon such objection as soon as possible and in a summary manner. In case the decision of the majority of creditors to approve the individual debtor's proposal or any amendment thereof made during the creditors' meeting is annulled by the court, the court shall declare the proceedings terminated and the creditors shall be at liberty to exercise the rights which may correspond to them.

Court order

4. Rehabilitation a. Concept Sec. 4(gg), FRIA, supra Rehabilitation Goal Conditions for undertaking rehabilitation

b. Types

As to who files

As to court supervision

S E C . 1 0 1, F R I A Effects of Approval of Proposed Agreement. - If the decision of the majority of the creditors to approve the proposed agreement or any amendment thereof made during the creditors' meeting is uphold by the court, or when no opposition or objection to said decision has been presented, the court shall order that the agreement be carried out and all parties bound thereby to comply with its terms. The court may also issue all orders which may be necessary or proper to enforce the agreement on motion of any affected party. The Order confirming the approval of the proposed agreement or any amendment thereof made during the creditors' meeting shall be binding upon all creditors whose claims are included in the schedule of debts and liabilities submitted by the individual debtor and who were properly summoned, but not upon: (a) those creditors having claims for personal labor, maintenance, expenses of last illness and funeral of the wife or children of the debtor incurred in the sixty (60) days immediately prior to the filing of the petition; and (b) secured creditors who failed to attend the meeting or refrained from voting therein.

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Restore debtor to successful operation and solvency 1. Feasibility of restoration to successful operation and solvency 2. Rehab is of greater value to creditors than if corporation was immediately liquidated

Types of rehabilitation Type Definition Voluntary Filed by debtor Involuntary Filed by creditor Involves court Court supervised proceedings; usual type of rehab Parties ask court to approve a rehab plan that Pre-negotiated has been previously agreed upon Parties agree among Out of court themselves S E C . 1 2, F R I A

Petition to Initiate Voluntary Proceedings by Debtor. When approved by the owner in case of a sole proprietorship, or by a majority of the partners in case of a partnership, or in case of a corporation, by a majority vote of the board of directors or trustees and authorized by the vote of the stockholders representing at least two-thirds (2/3) of the outstanding capital stock, or in case of nonstock corporation, by the vote of at least two-thirds (2/3) of the members, in a stockholder's or member's meeting duly called for the purpose, an insolvent debtor may initiate voluntary proceedings under this Act by filing a petition for rehabilitation with the court and on the grounds hereinafter specifically provided. The petition shall be verified to establish the insolvency of the debtor and the viability of its rehabilitation, and include, whether as an attachment or as part of the body of the petition, as a minimum the following: (a) Identification of the debtor, its principal activities and its addresses;

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(b) Statement of the fact of and the cause of the debtor's insolvency or inability to pay its obligations as they become due; (c) The specific relief sought pursuant to this Act; (d) The grounds upon which the petition is based; (e) Other information that may be required under this Act depending on the form of relief requested; (f) Schedule of the debtor's debts and liabilities including a list of creditors with their addresses, amounts of claims and collaterals, or securities, if any; (g) An inventory of all its assets including receivables and claims against third parties; (h) A Rehabilitation Plan (i) The names of at least three (3) nominees to the position of rehabilitation receiver; and (j) Other documents required to be filed with the petition pursuant to this Act and the rules of procedure as may be promulgated by the Supreme Court. A group of debtors may jointly file a petition for rehabilitation under this Act when one or more of its members foresee the impossibility of meeting debts when they respectively fall due, and the financial distress would likely adversely affect the financial condition and/or operations of the other members of the group and/or the participation of the other members of the group is essential under the terms and conditions of the proposed Rehabilitation Plan.

fifty percent (50%) of the total unsecured claims of the debtor. The petition shall include as a minimum: (a) A schedule of the debtor's debts And liabilities; (b) An inventory of the debtor's assets; (c) The pre-negotiated Rehabilitation Plan, including the names of at least three (3) qualified nominees for rehabilitation receiver; and (d) A summary of disputed claims against the debtor and a report on the provisioning of funds to account for appropriate payments should any such claims be ruled valid or their amounts adjusted.

S E C . 8 3, F R I A Out-of-Court or Informal Restructuring Agreements and Rehabilitation Plans. - An out-of-curt or informal restructuring agreement or Rehabilitation Plan that meets the minimum requirements prescribed in this chapter is hereby recognized as consistent with the objectives of this Act.

c. Who may file petition Sec. Sec. Sec. Sec.

Types of entities who may file & who must approve petition for rehab Debtor entities Who must consent to petition Single proprietorship Owner Partnership Majority of partners Majority of board of directors + 2/3 Corporation of stockholders of outstanding capital stock Creditors Amount of claim At least P1M or 25% of All creditors capital/partner’s contribution, whichever is higher

S E C . 1 3, F R I A Circumstances Necessary to Initiate Involuntary Proceedings. - Any creditor or group of creditors with a claim of, or the aggregate of whose claims is, at least One Million Pesos (Php1,000,000.00) or at least twenty-five percent (25%) of the subscribed capital stock or partners' contributions, whichever is higher, may initiate involuntary proceedings against the debtor by filing a petition for rehabilitation with the court if: (a) There is no genuine issue of fact on law on the claim/s of the petitioner/s, and that the due and demandable payments thereon have not been made for at least sixty (60) days or that the debtor has failed generally to meet its liabilities as they fall due; or (b) A creditor, other than the petitioner/s, has initiated foreclosure proceedings against the debtor that will prevent the debtor from paying its debts as they become due or will render it insolvent.

d. Procedure for court-supervised rehabilitation (Super haba ng provisions. I suggest reading the summaries first. J)

Procedure for court-supervised rehabilitation 1. Filing of petition, which alleges facts to support rehab; 2. Action by court - If petition not sufficient in form and substance, allow amendment/supplement 3. Commencement order - Issued if petition sufficient in form and substance - Includes stay/suspension order, except as provided in Sec. 18 (see next table for summary) 4. Initial hearing 5. Rehab receiver submits report as to WON rehab is feasible 6. Court determines WON to give due course to petition 7. Rehab receiver prepares rehab plan

S E C . 7 6, F R I A Petition by Debtor. - An insolvent debtor, by itself or jointly with any of its creditors, may file a verified petition with the court for the approval of a prenegotiated Rehabilitation Plan which has been endorsed or approved by creditors holding at least two-thirds (2/3) of the total liabilities of the debtor, including secured creditors holding more than fifty percent (50%) of the total secured claims of the debtor and unsecured creditors holding more than

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12, FRIA, supra 13, FRIA, supra 76, FRIA, supra 83, FRIA, supra

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- Actual plan on how to achieve the rehab goals - Must be approved by each class of creditor (vote requirement = 50% of total claims of each class) - Other creditors may object 8. Hearing for creditors’ objections 9. Approval/disapproval of rehab plan by court - Even if creditors disapprove, court may approve rehab plan, given all the requisites exist - Binding effect: a. Upon all creditors & debtor b. Upon all those who will be affected 10. Termination proceedings if goals are achieved and creditors are paid

Petition to Initiate Involuntary Proceedings. - The creditor/s' petition for rehabilitation shall be verified to establish the substantial likelihood that the debtor may be rehabilitated, and include: (a) Identification of the debtor its principal activities and its address; (b) The circumstances sufficient to support a petition to initiate involuntary rehabilitation proceedings under Section 13 of this Act; (c) The specific relief sought under this Act; (d) A Rehabilitation Plan; (e) The names of at least three (3) nominees to the position of rehabilitation receiver; (f) Other information that may be required under this Act depending on the form of relief requested; and B. (g) Other documents required to be filed with the petition pursuant to this Act and the rules of procedure as may be promulgated by the Supreme Court.

Effects of commencement order 1. Prohibit/render void any extrajudicial activity to seize debtor’s property, sell his encumbered property, or any attempt to enforce a claim against him 2. Render void any setoff of any debt owed to the debtor by any of the creditors 3. Render void any lien against the debtor’s property 1. 2. 3. 4. 5. 6. 7.

Action on the petition S E C . 1 5, F R I A

Exceptions to stay/suspension order Cases pending appeal in SC as of commencement date; Cases pending at specialized court/quasi-judicial agency, subject to court’s discretion; Enforcement of claims against sureties & other persons solidarily liable with debtor, or third party/accommodation mortgagors; Customers/clients of securities market participant; Actions of licensed broker/dealer to sell pledged securities Clearing and settlement of financial transactions through duly authorized clearing agencies or similar entities Criminal action against individual debtor or any officer/director/partner of debtor corporation

Action on the Petition. - If the court finds the petition for rehabilitation to be sufficient in form and substance, it shall, within five (5) working days from the filing of the petition, issue a Commencement Order. If, within the same period, the court finds the petition deficient in form or substance, the court may, in its discretion, give the petitioner/s a reasonable period of time within which to amend or supplement the petition, or to submit such documents as may be necessary or proper to put the petition in proper order. In such case, the five (5) working days provided above for the issuance of the Commencement Order shall be reckoned from the date of the filing of the amended or supplemental petition or the submission of such documents.

Issuance of commencement order/stay or suspension order

Effects of pending rehab proceedings 1. Taxes due will be waived 2. Contracts may be terminated, unless confirmed by the rehab receiver within 90 days (continued validity of contracts requires his positive action) 3. Any damages resulting from termination of contracts are considered a pre-commencement claim

S E C . 1 6, F R I A Commencement of Proceedings and Issuance of a Commencement Order. - The rehabilitation proceedings shall commence upon the issuance of the Commencement Order, which shall: (a) Identify the debtor, its principal business or activity/ies and its principal place of business; (b) Summarize the ground/s for initiating the proceedings; (c) State the relief sought under this Act and any requirement or procedure particular to the relief sought; (d) State the legal effects of the Commencement Order, including those mentioned in Section 17 hereof; (e) Declare that the debtor is under rehabilitation; (f) Direct the publication of the Commencement Order in a newspaper of general circulation in the Philippines once a week for at least two (2) consecutive weeks, with the first publication to be

Avoidance proceedings The court may nullify/render void certain contracts that are deemed in fraud of creditors. These were those usually entered into within 90 days before the filing of the petition for rehab.

Filing of petition Sec. 12, FRIA, supra Sec. 13, FRIA, supra

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(h)

(i)

(j)

(k)

(l) (m)

(n) (o)

(p)

(q)

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made within seven (7) days from the time of its issuance; If the petitioner is the debtor direct the service by personal delivery of a copy of the petition on each creditor holding at least ten percent (10%) of the total liabilities of the debtor as determined from the schedule attached to the petition within five (5) days; if the petitioner/s is/are creditor/s, direct the service by personal delivery of a copy of the petition on the debtor within five (5) days; Appoint a rehabilitation receiver who may or not be from among the nominees of the petitioner/s and who shall exercise such powers and duties defined in this Act as well as the procedural rules that the Supreme Court will promulgate; Summarize the requirements and deadlines for creditors to establish their claims against the debtor and direct all creditors to their claims with the court at least five (5) days before the initial hearing; Direct Bureau of internal Revenue (BIR) to file and serve on the debtor its comment on or opposition to the petition or its claim/s against the debtor under such procedures as the Supreme Court provide; Prohibit the debtor's suppliers of goods or services from withholding the supply of goods and services in the ordinary course of business for as long as the debtor makes payments for the services or goods supplied after the issuance of the Commencement Order; Authorize the payment of administrative expenses as they become due; Set the case for initial hearing, which shall not be more than forty (40) days from the date of filing of the petition for the purpose of determining whether there is substantial likelihood for the debtor to be rehabilitated; Make available copies of the petition and rehabilitation plan for examination and copying by any interested party; Indicate the location or locations at which documents regarding the debtor and the proceedings under Act may be reviewed and copied; State that any creditor or debtor who is not the petitioner, may submit the name or nominate any other qualified person to the position of rehabilitation receiver at least five (5) days before the initial hearing; Include a Stay or Suspension Order which shall: (1) Suspend all actions or proceedings, in court or otherwise, for the enforcement of claims against the debtor; (2) Suspend all actions to enforce any judgment, attachment or other provisional remedies against the debtor; (3) Prohibit the debtor from selling, encumbering, transferring or disposing in any manner any of its properties except in the ordinary course of business; and (4) Prohibit the debtor from making any payment of its liabilities outstanding as of

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the commencement date except as may be provided herein.

S E C . 2 1, F R I A Effectivity and Duration of Commencement Order. Unless lifted by the court, the Commencement Order shall be for the effective for the duration of the rehabilitation proceedings for as long as there is a substantial likelihood that the debtor will be successfully rehabilitated. In determining whether there is substantial likelihood for the debtor to be successfully rehabilitated, the court shall ensure that the following minimum requirements are met: (a) The proposed Rehabilitation Plan submitted complies with the minimum contents prescribed by this Act; (b) There is sufficient monitoring by the rehabilitation receiver of the debtor's business for the protection of creditors; (c) The debtor has met with its creditors to the extent reasonably possible in attempts to reach consensus on the proposed Rehabilitation Plan; (d) The rehabilitation receiver submits a report, based on preliminary evaluation, stating that the underlying assumptions and the goals stated in the petitioner's Rehabilitation Plan are realistic reasonable and reasonable or if not, there is, in any case, a substantial likelihood for the debtor to be successfully rehabilitated because, among others: (1) There are sufficient assets with/which to rehabilitate the debtor; (2) there is sufficient cash flow to maintain the operations of the debtor; (2) The debtor's, partners, stockholders, directors and officers have been acting in good faith and which due diligence; (3) The petition is not s sham filing intended only to delay the enforcement of the rights of the creditor's or of any group of creditors; and (4) The debtor would likely be able to pursue a viable Rehabilitation Plan; (e) The petition, the Rehabilitation Plan and the attachments thereto do not contain any materially false or misleading statement; (f) If the petitioner is the debtor, that the debtor has met with its creditor/s representing at least three-fourths (3/4) of its total obligations to the extent reasonably possible and made a good faith effort to reach a consensus on the proposed Rehabilitation Plan if the petitioner/s is/are a creditor or group of creditors, that/ the petitioner/s has/have met with the debtor and made a good faith effort to reach a consensus on the proposed Rehabilitation Plan; and (g) The debtor has not committed acts misrepresentation or in fraud of its creditor/s or a group of creditors.

Initial hearing S E C . 2 2, F R I A Action at the Initial Hearing. - At the initial hearing, the

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court shall: (a) Determine the creditors who have made timely and proper filing of their notice of claims; (b) Hear and determine any objection to the qualifications of the appointment of the rehabilitation receiver and, if necessary appoint a new one in accordance with this Act; (c) Direct the creditors to comment on the petition and the Rehabilitation Plan, and to submit the same to the court and to the rehabilitation receiver within a period of not more than twenty (20) days; and (d) Direct the rehabilitation receiver to evaluate the financial condition of the debtor and to prepare and submit to the court within forty (40) days from initial hearing the report provided in Section 24 hereof.

timely, fair, transparent, effective and efficient rehabilitation or liquidation of debtors. The rehabilitation or liquidation shall be made with a view to ensure or maintain certainly and predictability in commercial affairs, preserve and maximize the value of the assets of these debtors, recognize creditor rights and respect priority of claims, and ensure equitable treatment of creditors who are similarly situated. When rehabilitation is not feasible, it is in the interest of the State to facilities a speedy and orderly liquidation of these debtor's assets and the settlement of their obligations.

S E C . 2 6, F R I A Petition Given Due Course. - If the petition is given due course, the court shall direct the rehabilitation receiver to review, revise and/or recommend action on the Rehabilitation Plan and submit the same or a new one to the court within a period of not more than ninety (90) days. The court may refer any dispute relating to the Rehabilitation Plan or the rehabilitation proceedings pending before it to arbitration or other modes of dispute resolution, as provided for under Republic Act No. 9285, Or the Alternative Dispute Resolution Act of 2004, should it determine that such mode will resolve the dispute more quickly, fairly and efficiently than the court.

S E C . 2 3, F R I A Effect of Failure to File Notice of Claim. - A creditor whose claim is not listed in the schedule of debts and liabilities and who fails to file a notice of claim in accordance with the Commencement Order but subsequently files a belated claim shall not be entitled to participate in the rehabilitation proceedings but shall be entitled to receive distributions arising therefrom.

Submission of report by rehabilitation receiver

S E C . 2 7, F R I A Dismissal of Petition. - If the petition is dismissed pursuant to paragraph (b) of Section 25 hereof, then the court may, in its discretion, order the petitioner to pay damages to any creditor or to the debtor, as the case may be, who may have been injured by the filing of the petition, to the extent of any such injury.

S E C . 2 4, F R I A Report of the Rehabilitation Receiver. - Within forty (40) days from the initial hearing and with or without the comments of the creditors or any of them, the rehabilitation receiver shall submit a report to the court stating his preliminary findings and recommendations on whether: (a) The debtor is insolvent and if so, the causes thereof and any unlawful or irregular act or acts committed by the owner/s of a sole proprietorship partners of a partnership or directors or officers of a corporation in contemplation of the insolvency of the debtor or which may have contributed to the insolvency of the debtor; (b) The underlying assumptions, the financial goals and the procedures to accomplish such goals as stated in the petitioner's Rehabilitation Plan are realistic, feasible and reasonable; (c) There is a substantial likelihood for the debtor to be successfully rehabilitated; (d) the petition should be dismissed; and (e) the debtor should be dissolved and/or liquidated.

Preparation of rehab plan & approval by creditors S E C . 6 3, F R I A Consultation with Debtor and Creditors. – If the court gives due course to the petition, the rehabilitation receiver shall confer with the debtor and all the classes of creditors, and may consider their views and proposals ill the review, revision or preparation of a new Rehabilitation Plan.

S E C . 6 4, F R I A

Grant of due course to/dismissal of petition S E C . 2 5, F R I A Declaration of Policy. - It is the policy of the State to encourage debtors, both juridical and natural persons, and their creditors to collectively and realistically resolve and adjust competing claims and property rights. In furtherance thereof, the State shall ensure a

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Creditor Approval of Rehabilitation Plan. – The rehabilitation receiver shall notify the creditors and stakeholders that the Plan is ready for their examination. Within twenty (2Q) days from the said notification, the rehabilitation receiver shall convene the creditors, either as a whole or per class, for purposes of voting on the approval of the Plan. The Plan shall be deemed rejected unless approved by all classes of creditors w hose rights are adversely modified or affected by the Plan. For purposes of this section, the Plan is deemed to have been approved by a class of creditors if members of the said class holding more than fifty percent (50%) of the total claims of the said class vote in favor of the Plan. The votes of the creditors shall be based solely on the

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amount of their respective claims based on the registry of claims submitted by the rehabilitation receiver pursuant to Section 44 hereof. Notwithstanding the rejection of the Rehabilitation Plan, the court may confirm the Rehabilitation Plan if all of the following circumstances are present: (a) The Rehabilitation Plan complies with the requirements specified in this Act. (b) The rehabilitation receiver recommends the confirmation of the Rehabilitation Plan; (c) The shareholders, owners or partners of the juridical debtor lose at least their controlling interest as a result of the Rehabilitation Plan; and (d) The Rehabilitation Plan would likely provide the objecting class of creditors with compensation which has a net present value greater than that which they would have received if the debtor were under liquidation.

Confirmation of rehab plan S E C . 6 8, F R I A Confirmation of the Rehabilitation Plan. – If no objections are filed within the relevant period or, if objections are filed, the court finds them lacking in merit, or determines that the basis for the objection has been cured, or determines that the debtor has complied with an order to cure the objection, the court shall issue an order confirming the Rehabilitation Plan. The court may confirm the Rehabilitation Plan notwithstanding unresolved disputes over claims if the Rehabilitation Plan has made adequate provisions for paying such claims. For the avoidance of doubt, the provisions of other laws to the contrary notwithstanding, the court shall have the power to approve or implement the Rehabilitation Plan despite the lack of approval, or objection from the owners, partners or stockholders of the insolvent debtor: Provided, That the terms thereof are necessary to restore the financial well-being and viability of the insolvent debtor.

Submission of rehab plan to the court S E C . 6 5, F R I A Submission of Rehabilitation Plan to the Court. – If the Rehabilitation Plan is approved, the rehabilitation receiver shall submit the same to the court for confirmation. Within five (5) days from receipt of the Rehabilitation Plan, the court shall notify the creditors that the Rehabilitation Plan has been submitted for confirmation, that any creditor may obtain copies of the Rehabilitation Plan and that any creditor may file an objection thereto.

S E C . 6 9, F R I A

Filing of objections to the rehab plan & hearing on objections S E C . 6 6, F R I A Filing of Objections to Rehabilitation Plan. – A creditor may file an objection to the Rehabilitation Plan within twenty (20) days from receipt of notice from the court that the Rehabilitation Plan has been submitted for confirmation. Objections to a Rehabilitation Plan shall be limited to the following: (a) The creditors' support was induced by fraud; (b) The documents or data relied upon in the Rehabilitation Plan are materially false or misleading; or (c) The Rehabilitation Plan is in fact not supported by the voting creditors.

S E C . 6 7, F R I A Hearing on the Objections. - If objections have been submitted during the relevant period, the court shall issue an order setting the time and date for the hearing or hearings on the objections. If the court finds merit in the objection, it shall order the rehabilitation receiver or other party to cure the defect, whenever feasible. If the court determines that the debtor acted in bad faith, or that it is not feasible to cure the defect, the court shall convert the proceedings into one for the liquidation of the debtor under Chapter V of this Act.

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Effect of Confirmation of the Rehabilitation Plan. - The confirmation of the Rehabilitation Plan by the court shall result in the following: (a) The Rehabilitation Plan and its provisions shall be binding upon the debtor and all persons who may be affected by . it, including the creditors, whether or not such persons have participated in the proceedings or opposed the Rehabilitation Plan or whether or not their claims have been scheduled; (b) The debtor shall comply with the provisions of the Rehabilitation Plan and shall take all actions necessary to carry out the Plan; (c) Payments shall be made to the creditors in accordance with the provisions of the Rehabilitation Plan; (d) Contracts and other arrangements between the debtor and its creditors shall be interpreted as continuing to apply to the extent that they do not conflict with the provisions of the Rehabilitation Plan; (e) Any compromises on amounts or rescheduling of timing of payments by the debtor shall be binding on creditors regardless of whether or not the Plan is successfully implement; and (f) Claims arising after approval of the Plan that are otherwise not treated by the Plan are not subject to any Suspension Order. The Order confirming the Plan shall comply with Rules 36 of the Rules of Court: Provided, however, That the court may maintain jurisdiction over the case in order to resolve claims against the debtor that remain contested and allegations that the debtor has breached the Plan.

S E C . 7 2, F R I A Period for Confirmation of the Rehabilitation Plan. The court shall have a maximum period of one (1) year

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from the date of the filing of the petition to confirm a Rehabilitation Plan. If no Rehabilitation Plan is confirmed within the said period, the proceedings may upon motion or motu propio, be converted into one for the liquidation of the debtor .

creditors; or (5) Enforce the applicable provisions of the Rehabilitation Plan through a writ of execution.

S E C . 7 5, F R I A Effects of Termination. - Termination of the proceedings shall result in the following: (a) The discharge of the rehabilitation receiver subject to his submission of a final accounting; and (b) The lifting of the Stay Order and any other court order holding in abeyance any action for the enforcement of a claim against the debtor. Provided, however, That if the termination of proceedings is due to failure of rehabilitation or dismissal of the petition for reasons other than technical grounds, the proceedings shall be immediately converted to liquidation as provided in Section 92 of this Act.

Submission of final report; accounting & discharge of receiver S E C . 7 3, F R I A Accounting Discharge of Rehabilitation Receiver. Upon the confirmation of the Rehabilitation Plan, the rehabilitation receiver shall provide a final report and accounting to the court. Unless the Rehabilitation Plan specifically requires and describes the role of the rehabilitation receiver after the approval of the Rehabilitation Plan, the court shall discharge the rehabilitation receiver of his duties.

Termination proceedings

e. Special matters

S E C . 7 4, F R I A Termination of Proceedings. - The rehabilitation proceedings under Chapter II shall, upon motion by any stakeholder or the rehabilitation receiver be terminated by order of the court either declaring a successful implementation of the Rehabilitation Plan or a failure of rehabilitation. There is failure of rehabilitation in the following cases: (a) Dismissal of the petition by the court; (b) The debtor fails to submit a Rehabilitation Plan; (c) Under the Rehabilitation Plan submitted by the debtor, there is no substantial likelihood that the debtor can be rehabilitated within a reasonable period; (d) The Rehabilitation Plan or its amendment is approved by the court but in the implementation thereof, the debtor fails to perform its obligations thereunder or there is a failure to realize the objectives, targets or goals set forth therein, including the timelines and conditions for the settlement of the obligations due to the creditors and other claimants; (e) The commission of fraud in securing the approval of the Rehabilitation Plan or its amendment; and (f) Other analogous circumstances as may be defined by the rules of procedure. Upon a breach of, or upon a failure of the Rehabilitation Plan the court, upon motion by an affected party may: (1) Issue an order directing that the breach be cured within a specified period of time, falling which the proceedings may be converted to a liquidation; (2) Issue an order converting the proceedings to a liquidation; (3) Allow the debtor or rehabilitation receiver to submit amendments to the Rehabilitation Plan, the approval of which shall be governed by the same requirements for the approval of a Rehabilitation Plan under this subchapter; (4) Issue any other order to remedy the breach consistent with the present regulation, other applicable law and the best interests of the

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Management committee General rule of management

Exceptions

Rules regarding management Management of the corporation continues to be vested with board of directors during rehab The court may appoint a management committee in cases of: 1. Actual/imminent danger of dissipation, loss, wastage, or destruction of debtor’s assets; 2. Paralyzation of debtor’s business operations; or 3. Debtor’s gross mismanagement, fraud, other wrongful conduct, or gross/willful violation of FRIA S E C . 3 6, F R I A

Displacement of Existing Management by the Rehabilitation Receiver or Management Committee. – Upon motion of any interested party, the court may appoint and direct the rehabilitation receiver to assume the powers of management of the debtor, or appoint a management committee that will undertake the management of the debtor, upon clear and convincing evidence of any of the following circumstances: (a) Actual or imminent danger of dissipation, loss, wastage or destruction of the debtor’s assets or other properties; (b) Paralyzation of the business operations of the debtor; or (c) Gross mismanagement of the debtor or fraud or other wrongful conduct on the part of, or gross or willful violation of this Act by existing management of the debtor or the owner, partner, director, officer or representative/s in management of the debtor. In case the court appoints the rehabilitation receiver to assume the powers of management of the debtor. the court may: (1) Require the rehabilitation receiver to post an

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additional bond; (2) Authorize him to engage the services or to employ persona or entities to assist him in the discharge of his managerial functions; and (3) Authorize a commensurate increase in his compensation.

be authorized by the court or by the rehabilitation receiver to perform such other tasks and functions as may be defined by the procedural rules in order to facilitate the rehabilitation process.

Effects of commencement order

S E C . 3 7, F R I A

S E C . 1 7, F R I A

Role of the Management Committee. – When appointed pursuant to the foregoing section, the management committee shall take the place of the management and the governing body of the debtor and assume their rights and responsibilities. The specific powers and duties of the management committee, whose members shall be considered as officers of the court, shall be prescribed by the procedural rules.

Effects of the Commencement Order. - Unless otherwise provided for in this Act, the court's issuance of a Commencement Order shall, in addition to the effects of a Stay or Suspension Order described in Section 16 hereof: (a) Vest the rehabilitation with all the powers and functions provided for this Act, such as the right to review and obtain records to which the debtor's management and directors have access, including bank accounts or whatever nature of the debtor subject to the approval by the court of the performance bond filed by the rehabilitation receiver; (b) Prohibit or otherwise serve as the legal basis rendering null and void the results of any extrajudicial activity or process to seize property, sell encumbered property, or otherwise attempt to collection or enforce a claim against the debtor after commencement date unless otherwise allowed in this Act, subject to the provisions of Section 50 hereof; (c) Serve as the legal basis for rendering null and void any setoff after the commencement date of any debt owed to the debtor by any of the debtor's creditors; (d) Serve as the legal basis for rendering null and void the perfection of any lien against the debtor's property after the commencement date; and (e) Consolidate the resolution of all legal proceedings by and against the debtor to the court Provided. However, That the court may allow the continuation of cases on other courts where the debtor had initiated the suit. Attempts to seek legal of other resource against the debtor outside these proceedings shall be sufficient to support a finding of indirect contempt of court.

S E C . 4 7, F R I A Management. - Unless otherwise provided herein, the management of the juridical debtor shall remain with the existing management subject to the applicable law/s and agreement/s, if any, on the election or appointment of directors, managers or managing partner. However, all disbursements, payments or sale, disposal, assignment, transfer or encumbrance of property , or any other act affecting title or interest in property, shall be subject to the approval of the rehabilitation receiver and/or the court, as provided in the following subchapter.

Creditors’ committee The creditors’ committee acts as a liaison, coordinating between the creditors and the rehab receiver.

S E C . 4 2, F R I A Creditors' Committee. - After the creditors' meeting called pursuant to Section 63 hereof, the creditors belonging to a class may formally organize a committee among themselves. In addition, the creditors may, as a body, agree to form a creditors' committee composed of a representative from each class of creditors, such as the following: (a) Secured creditors; (b) Unsecured creditors; (c) Trade creditors and suppliers; and (d) Employees of the debtor. In the election of the creditors' representatives, the rehabilitation receiver or his representative shall attend such meeting and extend the appropriate assistance as may be defined in the procedural rules.

S E C . 1 8, F R I A Exceptions to the Stay or Suspension Order. - The Stay or Suspension Order shall not apply: (a) To cases already pending appeal in the Supreme Court as of commencement date Provided, That any final and executory judgment arising from such appeal shall be referred to the court for appropriate action; (b) Subject to the discretion of the court, to cases pending or filed at a specialized court or quasijudicial agency which, upon determination by the court is capable of resolving the claim more quickly, fairly and efficiently than the court: Provided, That any final and executory judgment of such court or agency shall be referred to the court and shall be treated as a non-disputed claim; (c) To the enforcement of claims against sureties and

S E C . 4 3, F R I A Role of Creditors' Committee. - The creditors' committee when constituted pursuant to Section 42 of this Act shall assist the rehabilitation receiver in communicating with the creditors and shall be the primary liaison between the rehabilitation receiver and the creditors. The creditors' committee cannot exercise or waive any right or give any consent on behalf of any creditor unless specifically authorized in writing by such creditor. The creditors' committee may

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other persons solidarily liable with the debtor, and third party or accommodation mortgagors as well as issuers of letters of credit, unless the property subject of the third party or accommodation mortgage is necessary for the rehabilitation of the debtor as determined by the court upon recommendation by the rehabilitation receiver; (d) To any form of action of customers or clients of a securities market participant to recover or otherwise claim moneys and securities entrusted to the latter in the ordinary course of the latter's business as well as any action of such securities market participant or the appropriate regulatory agency or self-regulatory organization to pay or settle such claims or liabilities; (e) To the actions of a licensed broker or dealer to sell pledged securities of a debtor pursuant to a securities pledge or margin agreement for the settlement of securities transactions in accordance with the provisions of the Securities Regulation Code and its implementing rules and regulations; (f) The clearing and settlement of financial transactions through the facilities of a clearing agency or similar entities duly authorized, registered and/or recognized by the appropriate regulatory agency like the Bangko Sentral ng Pilipinas (BSP) and the SEC as well as any form of actions of such agencies or entities to reimburse themselves for any transactions settled for the debtor; and (g) Any criminal action against individual debtor or owner, partner, director or officer of a debtor shall not be affected by any proceeding commend under this Act.

circumstance, is perishable, costly to maintain, susceptible to devaluation or otherwise in jeopardy.

S E C . 5 0, F R I A Sale or Disposal of Encumbered Property of the Debtor and Assets of Third Parties Held by Debtor. - The court may authorize the sale, transfer, conveyance or disposal of encumbered property of the debtor, or property of others held by the debtor where there is a security interest pertaining to third parties under a financial, credit or other similar transactions if, upon application of the rehabilitation receiver and with the consent of the affected owners of the property, or secured creditor/s in the case of encumbered property of the debtor and, after notice and hearing, the court determines that: (a) Such sale, transfer, conveyance or disposal is necessary for the continued operation of the debtor's business; and (b) The debtor has made arrangements to provide a substitute lien or ownership right that provides an equal level of security for the counter-party's claim or right. Provided, That properties held by the debtor where the debtor has authority to sell such as trust receipt or consignment arrangements may be sold or disposed of by the .debtor, if such sale or disposal is necessary for the operation of the debtor's business, and the debtor has made arrangements to provide a substitute lien or ownership right that provides an equal level of security for the counter-party's claim or right. Sale or disposal of property under this section shall not give rise to any criminal liability under applicable laws.

S E C . 5 1, F R I A Assets of Debtor Held by Third Parties. – In the case of possessory pledges, mechanic's liens or similar claims, third parties who have in their possession or control property of the debtor shall not transfer, conveyor otherwise dispose of the same to persons other than the debtor, unless upon prior approval of the rehabilitation receiver. The rehabilitation receiver may also: (a) Demand the surrender or the transfer of the possession or control of such property to the rehabilitation receiver or any other person, subject to payment of the claims secured by any possessory Iien/s thereon; (b) Allow said third parties to retain possession or control, if such an arrangement would more likely preserve or increase the value of the property in question or the total value of the assets of the debtor; or (c) Undertake any otI1er disposition of the said property as may be beneficial for the rehabilitation of the debtor, after notice and hearing, and approval of the court.

S E C . 1 9, F R I A Waiver of taxes and Fees Due to the National Government and to Local Government Units (LGUs). Upon issuance of the Commencement Order by the court, and until the approval of the Rehabilitation Plan or dismissal of the petition, whichever is earlier, the imposition of all taxes and fees including penalties, interests and charges thereof due to the national government or to LGUs shall be considered waived, in furtherance of the objectives of rehabilitation. S E C . 4 8, F R I A Use or Disposition of Assets. - Except as otherwise provided herein, no funds or property of the debtor shall he used or disposed of except in the ordinary course of business of the debtor, or unless necessary to finance the administrative expenses of the rehabilitation proceedings.

S E C . 4 9, F R I A Sale of Assets. - The court, upon application of the rehabilitation receiver, may authorize the sale of unencumbered property of the debtor outside the ordinary course of business upon a showing that the property, by its nature or because of other

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S E C . 5 2, F R I A Rescission or Nullity of Sale, Payment, Transfer or Conveyance of Assets. - The court may rescind or

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declare as null and void any sale, payment, transfer or conveyance of the debtor's unencumbered property or any encumbering thereof by the debtor or its agents or representatives after the commencement date which are not in the ordinary course of the business of the debtor: Provided, however, That the unencumbered property may be sold, encumbered or otherwise disposed of upon order of the court after notice and hearing: (a) If such are in the interest of administering the debtor and facilitating the preparation and implementation of a Rehabilitation Plan; (b) In order to provide a substitute lien, mortgage or pledge of property under this Act; (c) For payments made to meet administrative expenses as they arise; (d) For payments to victims of quasi delicts upon a showing that the claim is valid and the debtor has insurance to reimburse the debtor for the payments made; (e) For payments made to repurchase property of the debtor that is auctioned off in a judicial or extrajudicial sale under. This Act; or (f) For payments made to reclaim property of the debtor held pursuant to a possessory lien.

accordance with the order prescribed under the rules of concurrence and preference of credits.

S E C . 5 4, F R I A Post-commencement Interest. - The rate and term of interest, if any, on secured and unsecured claims shall be determined and provided for in the approved Rehabilitation Plan.

S E C . 5 5, F R I A Post-commencement Loans and Obligations. - With the approval of the court upon the recommendation of the rehabilitation receiver, the debtor, in order to enhance its rehabilitation, may: (a) Enter into credit arrangements; or (b) Enter into credit arrangements, secured by mortgages of its unencumbered property or secondary mortgages of encumbered property with the approval of senior secured parties with regard to the encumbered property; or (c) Incur other obligations as may be essential for its rehabilitation. The payment of the foregoing obligations shall be considered administrative expenses under this Act.

S E C . 5 6, F R I A Treatment of Employees, Claims. - Compensation of employees required to carry on the business shall be considered an administrative expense. Claims of separation pay for months worked prior to the commencement date shall be considered a precommencement claim. Claims for salary and separation pay for work performed after the commencement date shall be an administrative expense.

S E C . 5 3, F R I A Assets Subject to Rapid Obsolescence, Depreciation and Diminution of Value. - Upon the application of a secured creditor holding a lien against or holder of an ownership interest in property held by the debtor that is subject to potentially rapid obsolescence, depreciation or diminution in value, the court shall, after notice and hearing, order the debtor or rehabilitation receiver to take reasonable steps necessary to prevent the depreciation. If depreciation cannot be avoided and such depreciation is jeopardizing the security or property interest of the secured creditor or owner, the court shall: (a) Allow the encumbered property to be foreclosed upon by the secured creditor according to the relevant agreement between the debtor and the secured creditor, applicable rules of procedure and relevant legislation: Provided. That the proceeds of the sale will be distributed in accordance with the order prescribed under the rules of concurrence and preference of credits; or (b) Upon motion of, or with the consent of the affected secured creditor or interest owner, order the conveyance of a lien against or ownership interest in substitute property of the debtor to the secured creditor: Provided. That other creditors holding liens on such property, if any, do not object thereto, or, if such property is not available; (c) Order the conveyance to the secured creditor or holder of an ownership interest of a lien on the residual funds from the sale of encumbered property during the proceedings; or (d) Allow the sale or disposition of the property: Provided. That the sale or disposition will maximize the value of the property for the benefit of the secured creditor and the debtor, and the proceeds of the sale will be distributed in

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S E C . 5 7, F R I A Treatment of Contracts. - Unless cancelled by virtue of a final judgment of a court of competent jurisdiction issued prior to the issuance of the Commencement Order, or at anytime thereafter by the court before which the rehabilitation proceedings are pending, all valid and subbsisting contracts of the debtor with creditors and other third parties as at the commencement date shall continue in force: Provided, That within ninety (90)days following the commencement of proceedings, the debtor, with the consent of the rehabilitation receiver, shall notify each contractual counter-party of whether it is confirming the particular contract. Contractual obligations of the debtor arising or performed during this period, and afterwards for confirmed contracts, shall be considered administrative expenses. Contracts not confirmed within the required deadline shall be considered terminated. Claims for actual damages, if any, arising as a result of the election to terminate a contract shall be considered a pre- commencement claim against the debtor. Nothing contained herein shall prevent the cancellation or termination of any contract of the debtor for any ground provided by law.

S E C . 5 8, F R I A Rescission or Nullity of Certain Pre-commencement

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Transactions. - Any transaction occurring prior to commencement date entered into by the debtor or involving its funds or assets may be rescinded or declared null and void on the ground that the same was executed with intent to defraud a creditor or creditors or which constitute undue preference of creditors. Without limiting the generality of the foregoing, a disputable presumption of such design shall arise if the transaction: (a) Provides unreasonably inadequate consideration to the debtor and is executed within ninety (90) days prior to the commencement date; (b) Involves an accelerated payment of a claim to a creditor within ninety (90) days prior to the commencement date; (c) Provides security or additional security executed within ninety (90) days prior to the commencement date; (d) Involves creditors, where a creditor obtained, or received the benefit of, more than its pro rata share in the assets of the debtor, executed at a time when the debtor was insolvent; or (e) Is intended to defeat, delay or hinder the ability of the creditors to collect claims where the effect of the transaction is to put assets of the debtor beyond the reach of creditors or to otherwise prejudice the interests of creditors. Provided, however, That nothing in this section shall prevent the court from rescinding or declaring as null and void a transaction on other grounds provided by relevant legislation and jurisprudence: Provided, further, That the provisions of the Civil Code on rescission shall in any case apply to these transactions.

No Diminution of Secured Creditor Rights. - The issuance of the Commencement Order and the Suspension or Stay Order, and any other provision of this Act, shall not be deemed in any way to diminish or impair the security or lien of a secured creditor, or the value of his lien or security, except that his right to enforce said security or lien may be suspended during the term of the Stay Order. The court, upon motion or recommendation of the rehabilitation receiver, may allow a secured creditor to enforce his security or lien, or foreclose upon property of the debtor securing his/its claim, if the said property is not necessary for the rehabilitation of the debtor. The secured creditor and/or the other lien holders shall be admitted to the rehabilitation proceedings only for the balance of his claim, if any.

S E C . 6 1, F R I A Lack of Adequate Protection. - The court, on motion or motu proprio, may terminate, modify or set conditions for the continuance of suspension of payment, or relieve a claim from the coverage thereof, upon showing that: (b) A creditor does not have adequate protection over property securing its claim; or (c) The value of a claim secured by a lien on property which is not necessary for rehabilitation of the debtor exceeds the fair market value of the said property. For purposes of this section, a creditor shall be deemed to lack adequate protection if it can be shown that: (a) The debtor fails or refuses to honor a pre-existing agreement with the creditor to keep the property insured; (b) The debtor fails or refuses to take commercially reasonable steps to maintain the property; or (c) The property has depreciated to an extent that the creditor is under secured. Upon showing of a lack of protection, the court shall order the debtor or the rehabilitation receiver to make arrangements to provide for the insurance or maintenance of the property; or to make payments or otherwise provide additional or replacement security such that the obligation is fully secured. If such arrangements are not feasible, the court may modify the Stay Order to allow the secured creditor lacking adequate protection to enforce its security claim against the debtor: Provided, however, That the court may deny the creditor the remedies in this paragraph if the property subject of the enforcement is required for the rehabilitation of the debtor.

S E C . 5 9, F R I A Actions for Rescission or Nullity. – (a) The rehabilitation receiver or, with his conformity, any creditor may initiate and prosecute any action to rescind, or declare null and void any transaction described in Section 58 hereof. If the rehabilitation receiver does not consent to the filing or prosecution of such action, (b) If leave of court is granted under subsection (a), the rehabilitation receiver shall assign and transfer to the creditor all rights, title and interest in the chose in action or subject matter of the proceeding, including any document in support thereof. (c) Any benefit derived from a proceeding taken pursuant to subsection (a), to the extent of his claim and the costs, belongs exclusively to the creditor instituting the proceeding, and the surplus, if any, belongs to the estate. (d) Where, before an order is made under subsection (a), the rehabilitation receiver (or liquidator) signifies to the court his readiness to institute the proceeding for the benefit of the creditors, the order shall fix the time within which he shall do so and, m that case, the benefit derived from the proceeding, if instituted within the time limits so fixed, belongs to the estate.

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Conversion into liquidation proceedings If rehab is not possible, then the proceedings may be converted to liquidation.

S E C . 9 2, F R I A Conversion by the Court into Liquidation Proceedings. During the pendency of court-supervised or pre-

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negotiated rehabilitation proceedings, the court may order the conversion of rehabilitation proceedings to liquidation proceedings pursuant to (a) Section 25(c) of this Act; or (b) Section 72 of this Act; or (c) Section 75 of this Act; or (d) Section 90 of this Act; or at any other time upon the recommendation of the rehabilitation receiver that the rehabilitation of the debtor is not feasible. Thereupon, the court shall issue the Liquidation Order mentioned in Section 112 hereof.

5. Liquidation a. Concept Liquidation is a last resort for creditors. Through this remedy, the debtor’s assets are inventoried and then used to discharge his liabilities. After liquidation, a debtor corporation loses juridical existence. The individual debtor, however, will not cease to exist. J

b. Types Type Voluntary Involuntary

Types of liquidation Filed by Insolvent debtor Creditor S E C . 1 0 3, F R I A

Application. - An individual debtor whose properties are not sufficient to cover his liabilities, and owing debts exceeding Five hundred thousand pesos (Php500,000.00), may apply to be discharged from his debts and liabilities by filing a verified petition with the court of the province or city in which he has resided for six (6) months prior to the filing of such petition. He shall attach to his petition a schedule of debts and liabilities and an inventory of assets. The filing of such petition shall be an act of insolvency.

S E C . 1 0 5, F R I A Petition; Acts of Insolvency. - Any creditor or group of creditors with a claim of, or with claims aggregating at least Five hundred thousand pesos (Php500, 000.00) may file a verified petition for liquidation with the court of the province or city in which the individual debtor resides. The following shall be considered acts of insolvency, and the petition for liquidation shall set forth or allege at least one of such acts: (a) That such person is about to depart or has departed from the Republic of the Philippines, with intent to defraud his creditors; (b) That being absent from the Republic of the Philippines, with intent to defraud his creditors, he remains absent; (c) That he conceals himself to avoid the service of legal process for the purpose of hindering or delaying the liquidation or of defrauding his creditors; (d) That he conceals, or is removing, any of his property to avoid its being attached or taken on legal process;

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(e) That he has suffered his property to remain under attachment or legal process for three (3) days for the purpose of hindering or delaying the liquidation or of defrauding his creditors; (f) That he has confessed or offered to allow judgment in favor of any creditor or claimant for the purpose of hindering or delaying the liquidation or of defrauding any creditors or claimant; (g) That he has willfully suffered judgment to be taken against him by default for the purpose of hindering or delaying the liquidation or of defrauding his creditors; (h) That he has suffered or procured his property to be taken on legal process with intent to give a preference to one or more of his creditors and thereby hinder or delay the liquidation or defraud any one of his creditors; (i) That he has made any assignment, gift, sale, conveyance or transfer of his estate, property, rights or credits with intent to hinder or delay the liquidation or defraud his creditors; (j) That he has, in contemplation of insolvency, made any payment, gift, grant, sale, conveyance or transfer of his estate, property, rights or credits; (k) That being a merchant or tradesman, he has generally defaulted in the payment of his current obligations for a period of thirty (30) days; (l) That for a period of thirty (30) days, he has failed, after demand, to pay any moneys deposited with him or received by him in a fiduciary; and (m) That an execution having been issued against him on final judgment for money, he shall have been found to be without sufficient property subject to execution to satisfy the judgment. The petitioning creditor/s shall post a bond in such as the court shall direct, conditioned that if the petition for liquidation is dismissed by the court, or withdrawn by the petitioner, or if the debtor shall not be declared an insolvent the petitioners will pay to the debtor all costs, expenses, damages occasioned by the proceedings and attorney's fees.

c. Who may file petition Individuals Juridical persons 3 or more creditors with aggregate claims of at least P1M or at least 25% of debtor’s subscribed capital or partner’s contribution, whichever is higher If individual debtor, aggregate claim of at least P500k

Debtors

Creditors

Sec. 103, FRIA, supra Sec. 105, FRIA, supra d. Procedure Summary of liquidation proceedings 1. Filing of petition 2. Action on petition 3. Appointment of

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86 (a) There is no genuine issue of fact or law on the claims/s of the petitioner/s, and that the due and demandable payments thereon have not been made for at least one hundred eighty (180) days or that the debtor has failed generally to meet its liabilities as they fall due; and (b) There is no substantial likelihood that the debtor may be rehabilitated. At any time during the pendency of or after a rehabilitation court-supervised or pre-negotiated rehabilitation proceedings, three (3) or more creditors whose claims is at least either One million pesos (Php1,000,000.00) or at least twenty-five percent (25%) of the subscribed capital or partner's contributions of the debtor, whichever is higher, may also initiate liquidation proceedings by filing a motion in the same court where the rehabilitation proceedings are pending to convert the rehabilitation proceedings into liquidation proceedings. The motion shall be verified, shall contain or set forth the same matters required in the preceding paragraph, and state that the movants are seeking the immediate liquidation of the debtor. If the petition or motion is sufficient in form and substance, the court shall issue an Order: (1) Directing the publication of the petition or motion in a newspaper of general circulation once a week for two (2) consecutive weeks; and (2) Directing the debtor and all creditors who are not the petitioners to file their comment on the petition or motion within fifteen (15) days from the date of last publication. If, after considering the comments filed, the court determines that the petition or motion is meritorious, it shall issue the Liquidation Order mentioned in Section 112 hereof.

of

Concurrence & preference of credits in liquidation - Civil Code rules apply - No prejudice to power of regulatory agency to liquidate trade-related claims of securities market participants, which has absolute priority insofar as trade-related assets are concerned - Therefore alters Art. 2241 with regard to traderelated assets

Effect of liquidation order on secured creditor The liquidation order does not affect the rights of secured creditors. They may still foreclose on the security, but only after the lapse of the 180 day period provided in the law.

Filing of petition S E C . 9 0, F R I A Voluntary Liquidation. - An insolvent debtor may apply for liquidation by filing a petition for liquidation with the court. The petition shall be verified, shall establish the insolvency of the debtor and shall contain, whether as an attachment or as part of the body of the petition; (a) A schedule of the debtor's debts and liabilities including a list of creditors with their addresses, amounts of claims and collaterals, or securities, if any; (b) An inventory of all its assets including receivables and claims against third parties; and (c) The names of at least three (3) nominees to the position of liquidator. At any time during the pendency of court-supervised or pre-negotiated rehabilitation proceedings, the debtor may also initiate liquidation proceedings by filing a motion in the same court where the rehabilitation proceedings are pending to convert the rehabilitation proceedings into liquidation proceedings. The motion shall be verified, shall contain or set forth the same matters required in the preceding paragraph, and state that the debtor is seeking immediate dissolution and termination of its corporate existence. If the petition or the motion, as the case may be, is sufficient in form and substance, the court shall issue a Liquidation Order mentioned in Section 112 hereof.

Sec. 103, FRIA, supra Sec. 105, FRIA, supra Issuance of show cause order/liquidation order S E C . 1 0 4, F R I A Liquidation Order. - If the court finds the petition sufficient in form and substance it shall, within five (5) working days issue the Liquidation Order mentioned in Section 112 hereof.

S E C . 1 0 6, F R I A Order to Individual Debtor to Show Cause. - Upon the filing of such creditors' petition, the court shall issue an Order requiring the individual debtor to show cause, at a time and place to be fixed by the said court, why he should not be adjudged an insolvent. Upon good cause shown, the court may issue an Order forbidding the individual debtor from making payments of any of his debts, and transferring any property belonging to him. However, nothing contained herein shall affect or impair the rights of a secured creditor to enforce his lien in accordance with its terms.

S E C . 9 1, F R I A Involuntary Liquidation. - Three (3) or more creditors the aggregate of whose claims is at least either One million pesos (Php1,000,000,00) or at least twentyfive percent (25%0 of the subscribed capital stock or partner's contributions of the debtor, whichever is higher, may apply for and seek the liquidation of an insolvent debtor by filing a petition for liquidation of the debtor with the court. The petition shall show that:

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S E C . 1 1 2, F R I A

(a) waive his right under the security or lien, prove his claim in the liquidation proceedings and share in the distribution of the assets of the debtor; or (b) maintain his rights under the security or lien. If the secured creditor maintains his rights under the security or lien: (1) the value of the property may be fixed in a manner agreed upon by the creditor and the liquidator. When the value of the property is less than the claim it secures, the liquidator may convey the property to the secured creditor and the latter will be admitted in the liquidation proceedings as a creditor for the balance. If its value exceeds the claim secured, the liquidator may convey the property to the creditor and waive the debtor's right of redemption upon receiving the excess from the creditor; (2) the liquidator may sell the property and satisfy the secured creditor's entire claim from the proceeds of the sale; or (3) the secure creditor may enforce the lien or foreclose on the property pursuant to applicable laws.

Liquidation Order. - The Liquidation Order shall: (a) Declare the debtor insolvent; (b) Order the liquidation of the debtor and, in the case of a juridical debtor, declare it as dissolved; (c) Order the sheriff to take possession and control of all the property of the debtor, except those that may be exempt from execution; (d) Order the publication of the petition or motion in a newspaper of general circulation once a week for two (2) consecutive weeks; (e) Direct payments of any claims and conveyance of any property due the debtor to the liquidator; (f) Prohibit payments by the debtor and the transfer of any property by the debtor; (g) Direct all creditors to file their claims with the liquidator within the period set by the rules of procedure; (h) Authorize the payment of administrative expenses as they become due; (i) State that the debtor and creditors who are not petitioner/s may submit the names of other nominees to the position of liquidator; and (j) Set the case for hearing for the election and appointment of the liquidator, which date shall not be less than thirty (30) days nor more than forty-five (45) days from the date of the last publication.

Appointment of liquidator & preparation of liquidation plan S E C . 1 2 9, F R I A The Liquidation Plan. - Within three (3) months from his assumption into office, the Liquidator shall submit a Liquidation Plan to the court. The Liquidation Plan shall, as a minimum enumerate all the assets of the debtor and a schedule of liquidation of the assets and payment of the claims.

S E C . 1 1 3, F R I A Effects of the Liquidation Order. - Upon the issuance of the Liquidation Order: (a) the juridical debtor shall be deemed dissolved and its corporate or juridical existence terminated; (b) legal title to and control of all the assets of the debtor, except those that may be exempt from execution, shall be deemed vested in the liquidator or, pending his election or appointment, with the court; (c) all contracts of the debtor shall be deemed terminated and/or breached, unless the liquidator, within ninety (90) days from the date of his assumption of office, declares otherwise and the contracting party agrees; (d) no separate action for the collection of an unsecured claim shall be allowed. Such actions already pending will be transferred to the Liquidator for him to accept and settle or contest. If the liquidator contests or disputes the claim, the court shall allow, hear and resolve such contest except when the case is already on appeal. In such a case, the suit may proceed to judgment, and any final and executor judgment therein for a claim against the debtor shall be filed and allowed in court; and (e) no foreclosure proceeding shall be allowed for a period of one hundred eighty (180) days.

Implementation of liquidation plan & sale of assets S E C . 1 3 1, F R I A Sale of Assets in Liquidation. - The liquidator may sell the unencumbered assets of the debtor and convert the same into money. The sale shall be made at public auction. However, a private sale may be allowed with the approval of the court if; (a) the goods to be sold are of a perishable nature, or are liable to quickly deteriorate in value, or are disproportionately expensive to keep or maintain; or (b) the private sale is for the best interest of the debtor and his creditors. With the approval of the court, unencumbered property of the debtor may also be conveyed to a creditor in satisfaction of his claim or part thereof.

Order removing debtor from list of registered entities S E C . 1 3 4, F R I A Order Removing the Debtor from the List of Registered Entitles at the Securities and Exchange Commission. Upon determining that the liquidation has been completed according to this Act and applicable law, the court shall issue an Order approving the report and ordering the SEC to remove the debtor from the registry of legal entities.

S E C . 1 1 4, F R I A Rights of Secured Creditors. - The Liquidation Order shall not affect the right of a secured creditor to enforce his lien in accordance with the applicable contract or law. A secured creditor may:

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Termination order

RCBC v. IAC (1999)

S E C . 1 3 5, F R I A

A secured creditor does not lose his right to foreclose property mortgaged in his favor upon the debtor’s filing a petition for rehabilitation. The right to foreclose is lost only upon the appointment of a management committee tasked to oversee the debtor’s rehabilitation.

Termination of Proceedings. - Upon receipt of evidence showing that the debtor has been removed from the registry of legal entities at the SEC. The court shall issue an Order terminating the proceedings.

e. Special matters Concurrence & preference of credits S E C . 1 3 0, F R I A Exempt Property to be Set Apart. - It shall be the duty of the court, upon petition and after hearing, to exempt and set apart, for the use and benefit of the said insolvent, such real and personal property as is by law exempt from execution, and also a homestead; but no such petition shall be heard as aforesaid until it is first proved that notice of the hearing of the application therefor has been duly given by the clerk, by causing such notice to be posted it at least three (3) public places in the province or city at least ten (10) days prior to the time of such hearing, which notice shall set forth the name of the said insolvent debtor, and the time and place appointed for the hearing of such application, and shall briefly indicate the homestead sought to be exempted or the property sought to be set aside; and the decree must show that such proof was made to the satisfaction of the court, and shall be conclusive evidence of that fact.

S E C . 1 3 3, F R I A Concurrence and Preference of Credits. - The Liquidation Plan and its Implementation shall ensure that the concurrence and preference of credits as enumerated in the Civil Code of the Philippines and other relevant laws shall be observed, unless a preferred creditor voluntarily waives his preferred right. For purposes of this chapter, credits for services rendered by employees or laborers to the debtor shall enjoy first preference under Article 2244 of the Civil Code, unless the claims constitute legal liens under Article 2241 and 2242 thereof.

Facts: BF Homes filed a petition for rehabilitation with the SEC. Subsequently, RCBC, one of its creditors, sought to extrajudicially foreclose the properties. Despite the issuance of a TRO and Writ of preliminary injunction by the SEC, RCBC proceeded to foreclose and sell the property through public auction. In response, BF homes filed an action to have the sale of the properties nullified on the strength of their argument that the disputed could no longer be foreclosed as a result of the SEC assuming jurisdiction through their petition for rehabilitation. Note that the RCBC foreclosed the property 6 months before a management committee was appointed. Issue: WON RCBC lost its right to foreclose upon the filing of a petition for rehabilitation – NO Held:The creditors of a debtor undergoing rehabilitation only have to settle issues regarding the concurrence and preference of their credits when a management committee, rehabilitation receiver, or any such body performing similar acts is appointed. Prior to appointment, secured mortgagees need not even go into the issue of whether or not other preferred creditors may be prejudiced by their foreclosing the property mortgaged in their favor. Note: If decided under the FRIA, then the right to foreclose is lost upon the commencement order. It is also upon the commencement order that a stay order is issued.

SOBREJUANITE v. ASB DEV’T CORP. (2005) In the context of corporate rehabilitation proceedings a claim is defined as “all claims or demands, of whatever nature or character against a debtor or its property, whether for money or otherwise.”

Liquidation of securities market participant

The rule is that the execution of final judgments are held in abeyance when a corporation is under rehabilitation.

S E C . 1 3 6, F R I A Liquidation of a Securities Market Participant. - The foregoing provisions of this chapter shall be without prejudice to the power of a regulatory agency or selfregulatory organization to liquidate trade-related claims of clients or customers of a securities market participant which, for purposes of investor protection, are hereby deemed to have absolute priority over other claims of whatever nature or kind insofar as trade-related assets are concerned. For purposes of this section, trade -related assets include cash, securities, trading right and other owned and used by the securities market participant in the ordinary course of this business.

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Facts: Sobrejuanite entered into a contract to sell with ASBDC over a condominium unit. Upon full payment of the purchase price, they demanded delivery of their unit but the company failed to do so. As a result, the spouses filed a complaint for the rescission of their contract, refund of payments, and damages. The company filed a motion to suspend the petition of Sobrejuanite in consideration of the fact that the SEC had approved the former’s rehabilitation plan and that a rehabilitation receiver had been appointed to oversee the same. Notwithstanding such opposition, the HLURB proceeded to hear and try the case on its members—it rendered a decision in favor of the Sobrejuanite.

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89 the company’s officers. Rehabilitation concerns itself with the finances and liabilities of the company, which has its own juridical personality, while criminal proceedings are concerned with the individual liabilities of the accused.

Issue: WON the complaint of Sobrejuanite ought to be suspended pending the rehabilitation of the company – YES Held: The reason for suspending the execution of the favorable judgment rendered by the HLURB in favor of Sobrejuanite during the pendency of rehabilitation proceddings is to prevent him from gaining an undue advantage over his fellow creditors—their claims must first be collectively ascertained in order to a partitioning of the creditor’s property that is in line with civil code provisions regarding the concurrence and preference of credits. Another reason for such suspension is so that the person or entities charged with the rehabilitation can focus on the task at hand; settling the liabilities of the corporation under rehabilitation to various creditors as they fall due would detract from such purpose. Note: If decided under the FRIA, quasi-judicial agencies may still continue the proceedings despite the approval of the court with regard to corporate rehabilitation.

MWSS v. DAWAY & MAYNILAD (2004) Rehabilitation courts only acquire jurisdiction (to the exclusion of all creditors) over claims on other entities that are not solidarily liable with the debtor.

Facts: The officers of SIHI filed a petition for rehabilitation with the RTC. The RTC acted favorably upon their petition and issued a staying order against all claims against SIHI. Dispute arose when the officers, who were facing a number criminal charges for acts committed as company officers, tried to use the staying order issued by the RTC to suspend the criminal proceedings against them. Issue: WON the suspension of all claims as a result of the issuance of a staying order extends to claims arising out of criminal charges filed against the company’s officers – NO Held: The rehabilitation of a corporation is not a legal ground for the suspension or extinguishment of the criminal liability incurred by its corporate officers. The rehabilitation and criminal proceedings seek to address different things; rulings and issuances in one will not be automatically applicable to the other notwithstanding the fact that it may involve the same parties.

Facts: Maynilad undertook to oversee the operations of MWSS in the West Zone Service Area—in consideration of such an arrangement, Maynilad obliged itself to pay concession fees to MWSS. As security for the obligations of Maynilad under their concession agreement, an irrevocable standby letter of credit worth $120M was issued in favor of MWSS. Upon failure of Maynilad to comply with its obligations under the concession agreement, MWSS sought to claim the amounts provided for in the letter of credit. Maynilad attempted to prevent MWSS from collecting the mounts owed to it by presenting a stop order that the RTC issued upon the former’s petition for rehabilitation. Issue: WON the stay order issued by the rehabilitation court could prevent MWSS from claiming the amounts owed to it from the line of credit – NO Held: First, the Court pointed out that the claim of MWSS was not against Maynilad but against the banks that had agreed to extend a line of credit to secure the obligations of the latter. Further, the only guarantors and sureties that were exempt from being proceeded against by creditors in the event that the debtor is undergoing rehabilitation are those who are not solidarily liable with the debtor. As applied, an irrevocable letter of credit is in the nature of a primary obligation; it is essentially solidarily liable. The function of letters of credit in this context is to provide the creditor with a means to secure payment at will upon the default of the debtor. NOTE: Under the FRIA, the stay order will not prevent the creditor from going after sureties, issuers of letters of credit given as security, or accommodation mortgagors. See sec. 18 (c)

PANLILIO v. RTC (2011) Rehabilitation proceedings have no effect on the criminal prosecution and accompanying liability of

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B. TRUTH IN LENDING ACT (RA 3765)

3. Disclosure required

1. Purpose

S E C . 4, R A 3 7 6 5 Any creditor shall furnish to each person to whom credit is extended, prior to the consummation of the transaction, a clear statement in writing setting forth, to the extent applicable and in accordance with rules and regulations prescribed by the Board, the following information: (1) The cash price or delivered price of the property or service to be acquired; (2) The amounts, if any, to be credited as down payment and/or trade-in; (3) The difference between the amounts set forth under clauses (1) and (2); (4) The charges, individually itemized, which are paid or to be paid by such person in connection with the transaction but which are not incident to the extension of credit; (5) The total amount to be financed; (6) The finance charge expressed in terms of pesos and centavos; and (7) The percentage that the finance bears to the total amount to be financed expressed as a simple annual rate on the outstanding unpaid balance of the obligation.

S E C . 2, R A 3 7 6 5 Declaration of Policy. It is hereby declared to be the policy of the State to protect its citizens from a lack of awareness of the true cost of credit to the user by assuring a full disclosure of such cost with a view of preventing the uninformed use of credit to the detriment of the national economy. The purpose of the law is to enable borrowers to know the full cost of credit by advising him of all charges.

2. Coverage S E C . 3, R A 3 7 6 5 As used in this Act, the term: (1) "Board" means the Monetary Board of the Central Bank of the Philippines. (2) "Credit" means any loan, mortgage, deed of trust, advance, or discount; any conditional sales contract; any contract to sell, or sale or contract of sale of property or services, either for present or future delivery, under which part or all of the price is payable subsequent to the making of such sale or contract; any rental-purchase contract; any contract or arrangement for the hire, bailment, or leasing of property; any option, demand, lien, pledge, or other claim against, or for the delivery of, property or money; any purchase, or other acquisition of, or any credit upon the security of, any obligation of claim arising out of any of the foregoing; and any transaction or series of transactions having a similar purpose or effect. (3) "Finance charge" includes interest, fees, service charges, discounts, and such other charges incident to the extension of credit as the Board may be regulation prescribe. (4) "Creditor" means any person engaged in the business of extending credit (including any person who as a regular business practice make loans or sells or rents property or services on a time, credit, or installment basis, either as principal or as agent) who requires as an incident to the extension of credit, the payment of a finance charge. (5) "Person" means any individual, corporation, partnership, association, or other organized group of persons, or the legal successor or representative of the foregoing, and includes the Philippine Government or any agency thereof, or any other government, or of any of its political subdivisions, or any agency of the foregoing.

Sec. 4 enumerates the items that must appear in the disclosure statement, which must be given to the debtor before the consummation of the transaction or before the first draw-down.

4. Penalties for violation S E C . 6, R A 3 7 6 5

All creditors are covered by this Act. Creditors are defined as persons engaged in the business of extending credit who require, as an incident to the extension, the payment of a finance charge. A finance charge includes interests, fees, collection charges, discounts, and other such charges. The effective interest rate is thus the interest + all other charges.

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(a) Any creditor who in connection with any credit transaction fails to disclose to any person any information in violation of this Act or any regulation issued thereunder shall be liable to such person in the amount of P100 or in an amount equal to twice the finance charged required by such creditor in connection with such transaction, whichever is the greater, except that such liability shall not exceed P2,000 on any credit transaction. Action to recover such penalty may be brought by such person within one year from the date of the occurrence of the violation, in any court of competent jurisdiction. In any action under this subsection in which any person is entitled to a recovery, the creditor shall be liable for reasonable attorney's fees and court costs as determined by the court. (b) Except as specified in subsection (a) of this section, nothing contained in this Act or any regulation contained in this Act or any regulation thereunder shall affect the validity or enforceability of any contract or transactions. (c) Any person who willfully violates any provision of this Act or any regulation issued thereunder shall be fined by not less than P1,00 or more than P5,000 or imprisonment for not less than 6 months, nor more than one year or both. (d) No punishment or penalty provided by this Act shall apply to the Philippine Government or any

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agency or any political subdivision thereof. (e) A final judgment hereafter rendered in any criminal proceeding under this Act to the effect that a defendant has willfully violated this Act shall be prima facie evidence against such defendant in an action or proceeding brought by any other party against such defendant under this Act as to all matters respecting which said judgment would be an estoppel as between the parties thereto.

C. LETTERS of CREDIT ART. 567, CODE of COMMERCE Letters of credit are those issued by one merchant to another or for the purpose of attending to a commercial transaction.

ART. 568, CODE of COMMERCE The essential conditions of letters of credit shall be: 4. To be issued in favor of a definite person and not to order. 5. To be limited to a fixed and specified amount, or to one or more undetermined amounts, but within a maximum the limits of which has to be stated exactly.

The law provides both civil [Sec. 6(a)] and criminal [Sec. 6(c)] penalties for failure to disclose. However, failure to disclose does not void the contract [Sec. 6(b)].

UCPB v. SAMUEL & BELUSO

1. Concept

Violations of the Truth in Lending Act give rise to both criminal and civil liabilities. In the context of credit lines, violations of the TinLA for failure to adhere to its requirements do not take place upon the grating of the credit line itself—they take place when the amounts made available by the same are availed. The reason behind this is that it is only at the point of availment that a contract of loan begins to exist between the parties. Lastly, pursuant to Sec. 4 of the law, the disclosure statement must be furnished prior to the consummation of the transaction.

Letters of credit are documents usually issued by a bank, whereby the bank promises to pay out money to the beneficiary of a letter of credit upon presentation of certain documents. It is usually used in import/export transactions. Essentially, it secures the payment to the buyer of the price of the goods sold.

2. Types As to revocability

Facts: The sps. Beluso were extended a credit line by UCPB in the amount of P2.35M. Pursuant to such an arrangement the sps. Beluso executed several promissory notes and real estate mortgages in favor of UCPB. The interest rates on the loaned amounts, however, were unilaterally imposed and modified by UCPB; ranged from 18% to 34%. Upon their default in payment, the bank foreclosed the mortgaged properties. The sps. Beluso then filed for an annulment of their contract with the bank as well as for damages.

As to when payment should be made

Issue: WON the interest rates unilaterally applied by UCPB were valid – NO Held: The Supreme Court held that the bank violated civil code provisions on mutuality of contracts and the Truth in Lending Act by unilaterally increasing interest rates without giving due notice or appropriate reasons therefor. The Court, however, held that the sps. were still liable for the compounded interest and penalty charge—it merely lowered the rates of the same from 36% and 30%-36%, respectively, to 12%.

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As to use

Irrevocable (the usual kind) Revocable Sight—Payable upon “sight” of documents, or immediately after presentation thereof Term—Payable x number of days after presentation of documents Commercial—Used as payment in commercial transactions Standby—Essentially a security device; not drawn unless there is default in the obligation to do or to pay

3. Strict compliance rule The rule is that documents must strictly comply with the terms and conditions before the bank makes payment, and the bank has no discretion to waive any of these terms and conditions.

4. Independence principle The principle is that the bank deals only with the documents submitted, regardless of other incidents, e.g. breach of the main contract, etc., in considering whether or not payment should be made.

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D. USURY LAW

d. The Usury Law and CB Circular No. 905

1. Concept

In 1982, the Central Bank issued Circular No. 905, which did not repeal, but only suspended the effectivity of, the Usury Law. It provided that interest rates in loans or forbearances shall not be subject to the ceilings prescribed in the Usury Law, and thus can be fixed according to the parties’ agreement.

Definition of usury Contracting for or receiving something in excess of the amount allowed by law for the loan or forbearance of money, goods, or chattels. It is a purely statutory creation—absent any restriction, any interest rate may be charged.

3. Interest

Elements of usury

a. Concept

1. Loan or forbearance 2. Understanding between the parties that the loan shall be returned 3. Unlawful intent to take more than the legal rate for the use of money or its equivalent 4. Taking or agreeing to take for the use of the loan of something in excess of what is allowed by law

Interest is the compensation allowed by law or fixed by the parties for the loan or forbearance of money, goods or security. The interest is to be determined based on the prevailing market rates.

b. Kinds

2. The Usury Law

Lawful As to legality

A R T . 1 1 7 5, C C Usurious transactions shall be governed by special laws. (n)

As to principal

A R T . 1 9 6 1, C C Usurious contracts shall be governed by the Usury Law and other special laws, so far as they are not inconsistent with this Code. (n)

Unlawful/ usurious Simple Compound Legal

a. Purpose, theory & nature Purpose of the law

That which the law allows That which is paid or stipulated to be paid beyond the maximum fixed by law Paid upon principal, at a rate fixed or stipulated by the parties Imposed upon principal + accrued interest Interest imposed by law upon the parties, absent any agreement of a rate between them Currently at 6% per annum

c. Power of BSP Monetary Board to prescribe interest rates

It is for the protection of borrowers from unscrupulous lenders, since charging excessive interest rates is against public policy.

S E C. 1, A C T N O. 2 6 5 5 The rate of interest for the loan or forbearance of any money goods, or credits and the rate allowed in judgments, in the absence of express contract as to such rate of interest, shall be six per centum per annum or such rate as may be prescribed by the Monetary Board of the Central Bank of the Philippines for that purpose in accordance with the authority hereby granted.

Theory of the law The inequality between a lender and borrower deprives the borrower of freedom, placing him at the lender’s mercy, so it is necessary to give him protection.

Nature of law Our Usury Law is both remedial and penal.

S E C. 1 - A, A C T N O. 2 6 5 5

b. Construction of the law The law must be strictly construed against the lender, and is generally given prospective application.

c. Transactions to which the Usury Law applies The law applies to two transactions: loans and forbearances.

Loan vs. forbearance of a debt Forbearance of a debt Contractual obligation of the creditor to forbear payment of an existing debt already due and payable

Loan Mutuum (and not commodatum, which is essentially gratuitous)

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The Monetary Board is hereby authorized to prescribe the maximum rate or rates of interest for the loan or renewal thereof or the forbearance of any money, goods or credits, and to change such rate or rates whenever warranted by prevailing economic and social conditions. In the exercise of the authority herein granted, the Monetary Board may prescribe higher maximum rates for loans of low priority, such as consumer loans or renewals thereof as well as such loans made by pawnshops finance companies and other similar credit institutions although the rates prescribed for these institutions need not necessarily be uniform. The Monetary Board is also authorized to prescribe different maximum rate or rates for different types of

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borrowings, including deposits and deposit substitutes, or loans of financial intermediaries.

equivalent of the maximum rate prescribed by the Monetary Board, or, in default thereof, whenever the debt is judicially claimed, in which last case it shall draw six per centum per annum interest or such rate as may be prescribed by the Monetary Board. No person or corporation shall require interest to be paid in advance for a period of more than one year: Provided, however, That whenever interest is paid in advance, the effective rate of interest charged by the creditor shall not exceed the equivalent of the maximum rate prescribed by the Monetary Board.

S E C. 4 - B, A C T N O. 2 6 5 5 In the exercise of its authority to fix the maximum rate or rates of interest under this Act, the Monetary Board shall be guided by the following: 3. The existing economic conditions in the country and the general requirements of the national economy; 4. The supply of and demand for credit; 5. The rate of increase in the price levels; and 6. Such other relevant criteria as the Monetary Board may adopt.

e. Coverage of interest Penalties

S E C. 9 - A, A C T N O. 2 6 5 5 The Monetary Board shall promulgate such rules and regulations as may be necessary to implement effectively the provisions of this Act.

For loans under Sec. 2, penalties are included in considering the interest. For loans under Sec. 3, penalties are not included.

Attorney’s fees

d. Rates of interest under Usury Law & BSP Circular No. 799

Attorney’s fees are not included in the interest.

4. Prohibited acts

Sec. 1, Act No. 2655, supra S E C. 2, A C T N O. 2 6 5 5 No person or corporation shall directly or indirectly take or receive in money or other property, real or personal, or choses in action, a higher rate of interest or greater sum or value, including commissions, premiums, fines and penalties, for the loan or renewal thereof or forbearance of money, goods, or credits, where such loan or renewal or forbearance is secured in whole or in part by a mortgage upon real estate the title to which is duly registered, or by any document conveying such real estate or an interest therein, than twelve per centum per annum or the maximum rate prescribed by the Monetary Board and in force at the time the loan or renewal thereof or forbearance is granted: Provided, That the rate of interest under this section or the maximum rate of interest that may be prescribed by the Monetary Board under this section may likewise apply to loans secured by other types of security as may be specified by the Monetary Board.

Sec. 2, Act No. 2655, supra Sec. 3, Act No. 2655, supra

Act punished Loan referred to Maximum interest

12% p.a.

14% p.a.

Inclusions in interest

Commissions, premiums, fines, and penalties

None

S E C. 4, A C T N O. 2 6 5 5 No pawnbroker or pawnbroker's agent shall directly or indirectly stipulate, charge, demand, take or receive any higher rate or greater sum or value for any loan or forbearance than two and one-half per centum per month when the sum lent is less than one hundred pesos; two per centum per month when the sum lent is one hundred pesos or more, but not exceeding five hundred pesos; and fourteen per centum per annum when it is more than the amount last mentioned; or the maximum rate or rates prescribed by the Monetary Board and in force at the time the loan or forbearance is granted. A pawnbroker or pawnbroker's agent shall be considered such, for the benefits of this Act, only if he be duly licensed and has an establishment open to the public. It shall be unlawful for a pawnbroker or pawnbroker's agent to divide the pawn offered by a person into two or more fractions in order to collect greater interest than the permitted by this section. It shall also be unlawful for a pawnbroker or

S E C. 3, A C T N O. 2 6 5 5 No person or corporation shall directly or indirectly demand, take, receive or agree to charge in money or other property, real or personal, a higher rate or greater sum or value for the loan or forbearance of money, goods, or credits where such loan or forbearance is not secured as provided in Section two hereof, than fourteen per centum per annum or the maximum rate or rates prescribed by the Monetary Board and in force at the time the loan or forbearance is granted.

S E C. 5, A C T N O. 2 6 5 5 In computing the interest on any obligation, promissory note or other instrument or contract, compound interest shall not be reckoned, except by agreement: Provided, That whenever compound interest is agreed upon, the effective rate of interest charged by the creditor shall not exceed the

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Acts prohibited in Sec. 2 vs. Sec. 3 Sec. 2 Sec. 3 Taking, receiving, Taking or receiving demanding, or agreeing usurious interest to a usurious interest Loan secured by REM over registered real Unsecured loan estate

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pawnbroker's agent to require the pawner to pay an additional charge as insurance premium for the safekeeping and conservation of the article pawned.

collected by him in advance when the debtor shall have paid the obligation before it is due, provided such interest, and commissions and premiums do not exceed the rates fixed in this Act.

S E C. 1 0, A C T N O. 2 6 5 5 Without prejudice to the proper civil action violation of this Act and the implementing rules and regulations promulgated by the Monetary Board shall be subject to criminal prosecution and the guilty person shall, upon conviction, be sentenced to a fine of not less than fifty pesos nor more than five hundred pesos, or to imprisonment for not less than thirty days nor more than one year, or both, in the discretion of the court, and to return the entire sum received as interest from the party aggrieved, and in the case of non-payment, to suffer subsidiary imprisonment at the rate of one day for every two pesos: Provided, That in case of corporations, associations, societies, or companies the manager, administrator or gerent or the person who has charge of the management or administration of the business shall be criminally responsible for any violation of this Act.

S E C. 7, A C T N O. 2 6 5 5

5. Remedies Effect of usurious stipulation Voided Principal loan not voided Security not voided Right subsists, with forfeiture of right to recover interest

Stipulation On principal loan On security on principal On creditor’s right to recover principal On debtor’s right to recover usurious interest paid

May recover entire amount

In jurisprudence, the Court has either struck down excessive interest rate stipulations or reduced them. If the effect of a usurious stipulation is that it is void, why should it be reduced? If Usury Law effective The debtor may recover the whole interest

If Usury Law not effective The debtor may recover the difference between the excessive interest and the reduced rate

Remedies provided under the law 1. Civil (recovery of interest paid)—prescribes after 2 years 2. Criminal—prescribes in 4 years

S E C. 6, A C T N O. 2 6 5 5 Any person or corporation who, for any such loan or renewal thereof or forbearance, shall have paid or delivered a higher rate or greater sum or value than is hereinbefore allowed to be taken or received, may recover the whole interest, commissions, premiums penalties and surcharges paid or delivered with costs and attorneys' fees in such sum as may be allowed by the court in an action against the person or corporation who took or received them if such action is brought within two years after such payment or delivery: Provided, however, That the creditor shall not be obliged to return the interest, commissions and premiums for a period of not more than one year

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All covenants and stipulations contained in conveyances, mortgages, bonds, bills, notes, and other contracts or evidences of debts, and all deposits of goods or other things, whereupon or whereby there shall be stipulated, charged, demanded, reserved, secured, taken, or received, directly or indirectly, a higher rate or greater sum or value for the loan or renewal or forbearance of money, goods, or credits than is hereinbefore allowed, shall be void: Provided, however, That no merely clerical error in the computation of interest, made without intent to evade any of the provisions of this Act, shall render a contract void: Provided, further, That parties to a loan agreement, the proceeds of which may be availed of partially or fully at some future time, may stipulate that the rate of interest agreed upon at the time the loan agreement is entered into, which rate shall not exceed the maximum allowed by law, shall prevail notwithstanding subsequent changes in the maximum rates that may be made by the Monetary Board: And Provided, finally, That nothing herein contained shall be construed to prevent the purchase by an innocent purchaser of a negotiable mercantile paper, usurious or otherwise, for valuable consideration before maturity, when there has been no intention on the part of said purchaser to evade the provisions of this Act and said purchase was not a part of the original usurious transaction. In any case, however, the maker of said note shall have the right to recover from said original holder the whole interest paid by him thereon and, in case of litigation, also the costs and such attorney's fees as may be allowed by the court.

S E C. 8, A C T N O. 2 6 5 5 All loans under which payment is to be made in agricultural products or seed or in any other kind of commodities shall also be null and void unless they provide that such products or seed or other commodities shall 6e appraised at the time when the obligation falls due at the current local market price: Provided, That unless otherwise stated in a document written in a language or dialect intelligible to the debtor and subscribed in the presence of not less than two witnesses, any contract advancing money to be repaid later in agricultural products or seed or any other kind of commodities shall be understood to be a loan, and any person or corporation having paid otherwise shall be entitled in case action is brought within two years after such payment or delivery to recover all the products or seed delivered as interest, or the value thereof, together with the costs and attorney's fees in such sum as may be allowed by the court. Nothing contained in this section shall be construed to prevent the lender from taking interest for the money lent, provided such interest be not in excess of the rates herein fixed.

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S E C. 9, A C T N O. 2 6 5 5

be excessive, the remedy is not to nullify the entire loan contract but to merely reduce the interest rate to one which is in accord with public policy.

The person or corporation sued shall file its answer in writing under oath to any complaint brought or filed against said person or corporation before a competent court to recover the money or other personal or real property, seeds or agricultural products, charged or received in violation of the provisions of this Act. The lack of taking an oath to an answer to a complaint will mean the admission of the facts contained in the latter.

Facts: Carpo sought to declare the mortgage contract constituted over his property void because of the excessive interest rate that was imposed on his principal obligation. He argued that a finding of the court that excessive interest rates were imposed by the creditor necessarily resulted in the avoidance of the loan contract; the mortgage, being an accessory contract, would also be nullified as a consequence.

S E C. 1 0, A C T N O. 2 6 5 5 Without prejudice to the proper civil action violation of this Act and the implementing rules and regulations promulgated by the Monetary Board shall be subject to criminal prosecution and the guilty person shall, upon conviction, be sentenced to a fine of not less than fifty pesos nor more than five hundred pesos, or to imprisonment for not less than thirty days nor more than one year, or both, in the discretion of the court, and to return the entire sum received as interest from the party aggrieved, and in the case of non-payment, to suffer subsidiary imprisonment at the rate of one day for every two pesos: Provided, That in case of corporations, associations, societies, or companies the manager, administrator or gerent or the person who has charge of the management or administration of the business shall be criminally responsible for any violation of this Act.

Issue: WON a finding made by the court that excessive interest rates were imposed nullified the contract of loan – NO Held: As provided by various pieces of jurisprudence, the principal obligation subsists despite the nullity of the stipulated interest. As such, there is no instance wherein a mortgage contract will be nullified simply because the interest rate imposed on the principal obligation is excessive.

SPS. MALLARI v. PRUDENTIAL BANK (2013) As provided by multiple pieces of jurisprudence, an interest rate of 24% is not unconscionable. Similarly, a penalty charge of 12% has been previously upheld. Facts: Mallari’s loan from Prudential which was subjected to a 23% interest rate. Upon default Prudential sought to foreclose the property mortgaged. Mallari then assailed the validity of the terms of his loan because he claimed that the terms thereof were too onerous.

A R T . 1 4 1 3, C C Interest paid in excess of the interest allowed by the usury laws may be recovered by the debtor, with interest thereon from the date of the payment.

ADVOCATES for TRUTH in LENDING, INC. v. BSP (2013)

Issue: WON the 23% p.a. was unconscionable – NO Held: [see doctrine]

CB Circular No. 905 merely suspended the effectivity of the Usury Law and did not repeal it. Facts: The petitioners assailed the constitutionality of CB Circular 905 which suspended the prevailing Usury Law at that time. Its practical effect was to effectively remove the ceiling regarding interest rates governing monetary transactions. They claimed that the Monetary Board exceeded its authority when it promulgated a circular that had the effect of repealing a law. Issue: WON the Monetary Board exceeded its authority in issuing CB Circular 905 – NO Held: CB 905 did not repeal the Usury Law—it merely suspended its operation. Further, the main effect of lifting the interest rate ceiling was that the freedom of parties to contract was emphasized. Lastly, the lifting of the interest ceiling did not mean that creditors were free to charge exorbitant interest rates without consequence—recourse may always be had by going to the courts who will not hesitate to strike down unconscionable or iniquitous provisions.

CARPO v. CHUA & DY NG (2005) In the event that the court finds an interest rate to

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A statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien. If the precise amount of such advances made or of such liabilities incurred is, at the time of the issue of, unknown to the warehouseman or to his agent who issues it, a statement of the fact that advances have been made or liabilities incurred and the purpose thereof is sufficient. A warehouseman shall be liable to any person injured thereby for all damages caused by the omission from a negotiable receipt of any of the terms herein required.

E. W AREHO USE RECEIPTS LAW (ACT NO . 2137)

1. Concepts a. Warehouse The law does not define a “warehouse,” but De Leon & De Leon Jr. define it as “the building or place where goods are deposited and stored for profit.”

b. Warehouseman S E C . 5 8, A C T N O . 2 1 3 7

Effect of omission of essential terms; other terms

"Warehouseman" means a person lawfully engaged in the business of storing goods for profit.

c. Warehouse receipts Warehouse receipts are documents of title. They are documents that evidence ownership, and, at least for negotiable WHRs, the act of transferring them also transfers ownership.

Who may issue receipts

Effect of omission of essential terms of WHR Not affected Not affected Converted to ordinary deposit Liable for damages to those injured by the omission

Validity of receipt Negotiability of receipt Effect on contract Warehouseman’s liability

S E C . 3, A C T N O . 2 1 3 7

S E C . 1, A C T N O . 2 1 3 7 Persons who may issue receipts. — Warehouse receipts may be issued by any warehouseman.

Form of receipts. — What terms may be inserted. — A warehouseman may insert in a receipt issued by him any other terms and conditions provided that such terms and conditions shall not: (a) Be contrary to the provisions of this Act. (b) In any wise impair his obligation to exercise that degree of care in the safe-keeping of the goods entrusted to him which is reasonably careful man would exercise in regard to similar goods of his own.

Only the warehouseman may issue receipts, but his authorized agent may sign the warehouse receipt, pursuant to Sec. 2(g).

Form of receipts; essential terms Form of warehouse receipts No particular form is prescribed for warehouse receipts, except that: 1. It must appear in writing; and 2. The requirements under Sec. 2 of the Act must appear in the written instrument. There are no oral WHRs J

S E C . 2, A C T N O . 2 1 3 7 Form of receipts; essential terms. — Warehouse receipts need not be in any particular form but every such receipt must embody within its written or printed terms: (a) The location of the warehouse where the goods are stored, (b) The date of the issue of the receipt, (c) The consecutive number of the receipt, (d) A statement whether the goods received will be delivered to the bearer, to a specified person or to a specified person or his order, (e) The rate of storage charges, (f) A description of the goods or of the packages containing them, (g) The signature of the warehouseman which may be made by his authorized agent, (h) If the receipt is issued for goods of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership, and

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Types Types of warehouse receipts Non-negotiable Goods received will be delivered to the depositor/person specified therein

Negotiable Goods received will be delivered to bearer or to the order of any person named in the receipt

S E C . 4, A C T N O . 2 1 3 7 Definition of non-negotiable receipt. — A receipt in which it is stated that the goods received will be delivered to the depositor or to any other specified person, is a non-negotiable receipt.

S E C . 5, A C T N O . 2 1 3 7 Definition of negotiable receipt. — A receipt in which it is stated that the goods received will be delivered to the bearer or to the order of any person named in such receipt is a negotiable receipt. No provision shall be inserted in a negotiable receipt that it is non-negotiable. Such provision, if inserted shall be void.

S E C . 6, A C T N O . 2 1 3 7 Duplicate receipts must be so marked. — When more than one negotiable receipt is issued for the same

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goods, the word "duplicate" shall be plainly placed upon the face of every such receipt, except the first one issued. A warehouseman shall be liable for all damages caused by his failure so to do to any one who purchased the subsequent receipt for value supposing it to be an original, even though the purchase be after the delivery of the goods by the warehouseman to the holder of the original receipt.

To whom delivery may be made

S E C . 7, A C T N O . 2 1 3 7

Rationale of surrender & cancellation of negotiable WHRs

Failure to mark "non-negotiable." — A non-negotiable receipt shall have plainly placed upon its face by the warehouseman issuing it "non-negotiable," or "not negotiable." In case of the warehouseman's failure so to do, a holder of the receipt who purchased it for value supposing it to be negotiable, may, at his option, treat such receipt as imposing upon the warehouseman the same liabilities he would have incurred had the receipt been negotiable. This section shall not apply, however, to letters, memoranda, or written acknowledgment of an informal character.

Defense of ownership

Adverse claimants

2. Rights & obligations of warehouseman Right Obligations

To lien To take care of goods deposited Deliver the goods upon demand

S E C . 8, A C T N O . 2 1 3 7

a. Obligation to take care of the goods S E C . 2 1, A C T N O . 2 1 3 7 Liability for care of goods. — A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care. The diligence required is that of a reasonably careful owner of similar goods, or a good father of a family.

Rule on commingling The WHman cannot commingle fungible goods absent a stipulation allowing it.

Obligation of warehousemen to deliver. — A warehouseman, in the absence of some lawful excuse provided by this Act, is bound to deliver the goods upon a demand made either by the holder of a receipt for the goods or by the depositor; if such demand is accompanied with: (a) An offer to satisfy the warehouseman's lien; (b) An offer to surrender the receipt, if negotiable, with such indorsements as would be necessary for the negotiation of the receipt; and (c) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the warehouseman. In case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal.

To whom delivery should be made S E C . 9, A C T N O . 2 1 3 7

Rule on perishable/hazardous goods

Justification of warehouseman in delivering. — A warehouseman is justified in delivering the goods, subject to the provisions of the three following sections, to one who is: (a) The person lawfully entitled to the possession of the goods, or his agent; (b) A person who is either himself entitled to delivery by the terms of a non-negotiable receipt issued for the goods, or who has written authority from the person so entitled either indorsed upon the receipt or written upon another paper; or (c) A person in possession of a negotiable receipt by the terms of which the goods are deliverable to him or order, or to bearer, or which has been

When the goods are perishable or hazardous, and the person who must receive them is unable to remove them from the warehouse, the WHman may sell them at a public or private sale. If he is unable to sell them, he can dispose of them in any lawful manner, and he will not be liable for this disposal.

b. Obligation to deliver Summary of rules on delivery The holder of the receipt/depositor must: Requisites for 1. Make a demand for the goods, delivery accompanied by 2. An offer to satisfy the WHman’s lien;

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3. An offer to surrender the WHR, if it is negotiable; 4. Delivery receipt, if requested by WHman 1. Person lawfully entitled to possession, or his agent; 2. Person entitled to delivery through a nonnegotiable receipt, or another person authorized by the former; or 3. Person with a negotiable receipt. Because a negotiable WHR can transfer ownership by mere delivery, the surrender and cancellation of the WHR after delivery is to prevent further transfers and protect buyers in good faith. Cannot be set up by WHman, unless the title he claims arose: 1. At the time of the deposit for storage 2. After the WHR was issued If more than one person claims title/possession of the goods, WHman may require interpleader either: 1. As defense to an action brought against him for non-delivery of goods; or 2. As original suit.

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indorsed to him or in blank by the person to whom delivery was promised by the terms of the receipt or by his mediate or immediate indorser.

brought against him for non-delivery of the goods or as an original suit, whichever is appropriate, require all known claimants to interplead.

Sec. 1, Act 2137, supra

Cancellation of negotiable receipts upon delivery or part delivery

S E C . 1 9, A C T N O . 2 1 3 7 Adverse title is no defense except as above provided. — Except as provided in the two preceding sections and in sections nine and thirty-six, no right or title of a third person shall be a defense to an action brought by the depositor or person claiming under him against the warehouseman for failure to deliver the goods according to the terms of the receipt.

S E C . 1 1, A C T N O . 2 1 3 7 Negotiable receipt must be cancelled when goods delivered. — Except as provided in section thirty-six, where a warehouseman delivers goods for which he had issued a negotiable receipt, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the receipt, he shall be liable to any one who purchases for value in good faith such receipt, for failure to deliver the goods to him, whether such purchaser acquired title to the receipt before or after the delivery of the goods by the warehouseman.

Attachment/levy of goods covered by negotiable receipt S E C . 2 5, A C T N O . 2 1 3 7 Attachment or levy upon goods for which a negotiable receipt has been issued. — If goods are delivered to a warehouseman by the owner or by a person whose act in conveying the title to them to a purchaser in good faith for value would bind the owner, and a negotiable receipt is issued for them, they can not thereafter, while in the possession of the warehouseman, be attached by garnishment or otherwise, or be levied upon under an execution unless the receipt be first surrendered to the warehouseman or its negotiation enjoined. The warehouseman shall in no case be compelled to deliver up the actual possession of the goods until the receipt is surrendered to him or impounded by the court.

S E C . 1 2, A C T N O . 2 1 3 7 Negotiable receipts must be cancelled or marked when part of goods delivered. — Except as provided in section thirty-six, where a warehouseman delivers part of the goods for which he had issued a negotiable receipt and fails either to take up and cancel such receipt or to place plainly upon it a statement of what goods or packages have been delivered, he shall be liable to any one who purchases for value in good faith such receipt, for failure to deliver all the goods specified in the receipt, whether such purchaser acquired title to the receipt before or after the delivery of any portion of the goods by the warehouseman.

S E C . 2 6, A C T N O . 2 1 3 7

S E C . 3 6, A C T N O . 2 1 3 7

Creditor's remedies to reach negotiable receipts. — A creditor whose debtor is the owner of a negotiable receipt shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such receipt or in satisfying the claim by means thereof as is allowed at law or in equity in these islands in regard to property which can not readily be attached or levied upon by ordinary legal process.

Effect of sale. — After goods have been lawfully sold to satisfy a warehouseman's lien, or have been lawfully sold or disposed of because of their perishable or hazardous nature, the warehouseman shall not thereafter be liable for failure to deliver the goods to the depositor or owner of the goods or to a holder of the receipt given for the goods when they were deposited, even if such receipt be negotiable.

Estoppel to raise defense of ownership

c. Right of lien

S E C . 1 6, A C T N O . 2 1 3 7 Warehouseman cannot set up title in himself . — No title or right to the possession of the goods, on the part of the warehouseman, unless such title or right is derived directly or indirectly from a transfer made by the depositor at the time of or subsequent to the deposit for storage, or from the warehouseman's lien, shall excuse the warehouseman from liability for refusing to deliver the goods according to the terms of the receipt.

Adverse claimants

Claims included May be enforced against what property

S E C . 1 7, A C T N O . 2 1 3 7

Ways of losing lien

Interpleader of adverse claimants. — If more than one person claims the title or possession of the goods, the warehouseman may, either as a defense to an action

Ways of enforcing lien

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Summary of rules on right of lien Charges for storage and preservation, money advanced, interest, insurance, transportation, labor, weighing, coopering, and other charges and expenses of such goods Reasonable charges and expenses for notice and advertisements of sale All goods deposited belonging to the person liable as debtor, or deposited by the debtor but belonging to others 1. By surrendering possession; or 2. By refusing to deliver goods when valid demand is made 1. WHman causes sale of goods at auction 2. Action for collection of sum of money 3. Refusal to deliver until lien satisfied

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99 advances which the depositor has expressly or impliedly contracted with the warehouseman to pay.

S E C . 2 7, A C T N O . 2 1 3 7 What claims are included in the warehouseman's lien. — Subject to the provisions of section thirty, a warehouseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for storage and preservation of the goods; also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering and other charges and expenses in relation to such goods, also for all reasonable charges and expenses for notice, and advertisements of sale, and for sale of the goods where default had been made in satisfying the warehouseman's lien.

S E C . 3 3, A C T N O . 2 1 3 7 Satisfaction of lien by sale. — A warehouseman's lien for a claim which has become due may be satisfied as follows: (a) An itemized statement of the warehouseman's claim, showing the sum due at the time of the notice and the date or dates when it becomes due; (b) A brief description of the goods against which the lien exists, (c) A demand that the amount of the claim as stated in the notice of such further claim as shall accrue, shall be paid on or before a day mentioned, not less than ten days from the delivery of the notice if it is personally delivered, or from the time when the notice shall reach its destination, according to the due course of post, if the notice is sent by mail, (d) A statement that unless the claim is paid within the time specified, the goods will be advertised for sale and sold by auction at a specified time and place. In accordance with the terms of a notice so given, a sale of the goods by auction may be had to satisfy any valid claim of the warehouseman for which he has a lien on the goods. The sale shall be had in the place where the lien was acquired, or, if such place is manifestly unsuitable for the purpose of the claim specified in the notice to the depositor has elapsed, and advertisement of the sale, describing the goods to be sold, and stating the name of the owner or person on whose account the goods are held, and the time and place of the sale, shall be published once a week for two consecutive weeks in a newspaper published in the place where such sale is to be held. The sale shall not be held less than fifteen days from the time of the first publication. If there is no newspaper published in such place, the advertisement shall be posted at least ten days before such sale in not less than six conspicuous places therein. From the proceeds of such sale, the warehouseman shall satisfy his lien including the reasonable charges of notice, advertisement and sale. The balance, if any, of such proceeds shall be held by the warehouseman and delivered on demand to the person to whom he would have been bound to deliver or justified in delivering goods. At any time before the goods are so sold, any person claiming a right of property or possession therein may pay the warehouseman the amount necessary to satisfy his lien and to pay the reasonable expenses and liabilities incurred in serving notices and advertising and preparing for the sale up to the time of such payment. The warehouseman shall deliver the goods to the person making payment if he is a person entitled, under the provision of this Act, to the possession of the goods on payment of charges thereon. Otherwise, the warehouseman shall retain the possession of the goods according to the terms of the original contract of deposit.

S E C . 2 8, A C T N O . 2 1 3 7 Against what property the lien may be enforced. — Subject to the provisions of section thirty, a warehouseman's lien may be enforced: (a) Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims in regard to which the lien is asserted, and (b) Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted if such person had been so entrusted with the possession of goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid.

S E C . 2 9, A C T N O . 2 1 3 7 How the lien may be lost. — A warehouseman loses his lien upon goods: (a) By surrendering possession thereof, or (b) By refusing to deliver the goods when a demand is made with which he is bound to comply under the provisions of this Act.

S E C . 3 0, A C T N O . 2 1 3 7 Negotiable receipt must state charges for which the lien is claimed. — If a negotiable receipt is issued for goods, the warehouseman shall have no lien thereon except for charges for storage of goods subsequent to the date of the receipt unless the receipt expressly enumerated other charges for which a lien is claimed. In such case, there shall be a lien for the charges enumerated so far as they are within the terms of section twenty-seven although the amount of the charges so enumerated is not stated in the receipt.

S E C . 3 1, A C T N O . 2 1 3 7 Warehouseman need not deliver until lien is satisfied. — A warehouseman having a lien valid against the person demanding the goods may refuse to deliver the goods to him until the lien is satisfied.

S E C . 3 2, A C T N O . 2 1 3 7 Warehouseman's lien does not preclude other remedies. — Whether a warehouseman has or has not a lien upon the goods, he is entitled to all remedies allowed by law to a creditor against a debtor for the collection from the depositor of all charges and

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S E C . 3 4, A C T N O . 2 1 3 7 Perishable and hazardous goods. — If goods are of a perishable nature, or by keeping will deteriorate greatly in value, or, by their order, leakage, inflammability, or explosive nature, will be liable to injure other property , the warehouseman may give such notice to the owner or to the person in whose names the goods are stored, as is reasonable and possible under the circumstances, to satisfy the lien upon such goods and to remove them from the warehouse and in the event of the failure of such person to satisfy the lien and to receive the goods within the time so specified, the warehouseman may sell the goods at public or private sale without advertising. If the warehouseman, after a reasonable effort, is unable to sell such goods, he may dispose of them in any lawful manner and shall incur no liability by reason thereof. The proceeds of any sale made under the terms of this section shall be disposed of in the same way as the proceeds of sales made under the terms of the preceding section.

S E C . 2 0, A C T N O . 2 1 3 7 Liability for non-existence or misdescription of goods. — A warehouseman shall be liable to the holder of a receipt for damages caused by the non-existence of the goods or by the failure of the goods to correspond with the description thereof in the receipt at the time of its issue. If, however, the goods are described in a receipt merely by a statement of marks or labels upon them or upon packages containing them or by a statement that the goods are said to be goods of a certain kind or that the packages containing the goods are said to contain goods of a certain kind or by words of like purport, such statements, if true, shall not make liable the warehouseman issuing the receipt, although the goods are not of the kind which the marks or labels upon them indicate or of the kind they were said to be by the depositor.

Failure to take care of the goods Sec. 21, Act 2137, supra

S E C . 3 5, A C T N O . 2 1 3 7 Other methods of enforcing lien. — The remedy for enforcing a lien herein provided does not preclude any other remedies allowed by law for the enforcement of a lien against personal property nor bar the right to recover so much of the warehouseman's claim as shall not be paid by the proceeds of the sale of the property.

S E C . 2 2, A C T N O . 2 1 3 7 Goods must be kept separate. — Except as provided in the following section, a warehouseman shall keep the goods so far separate from goods of other depositors and from other goods of the same depositor for which a separate receipt has been issued, as to permit at all times the identification and redelivery of the goods deposited.

S E C . 3 6, A C T N O . 2 1 3 7

S E C . 2 3, A C T N O . 2 1 3 7

Effect of sale. — After goods have been lawfully sold to satisfy a warehouseman's lien, or have been lawfully sold or disposed of because of their perishable or hazardous nature, the warehouseman shall not thereafter be liable for failure to deliver the goods to the depositor or owner of the goods or to a holder of the receipt given for the goods when they were deposited, even if such receipt be negotiable.

Fungible goods may be commingled if warehouseman authorized. — If authorized by agreement or by custom, a warehouseman may mingle fungible goods with other goods of the same kind and grade. In such case, the various depositors of the mingled goods shall own the entire mass in common and each depositor shall be entitled to such portion thereof as the amount deposited by him bears to the whole.

d. Liabilities

S E C . 2 4, A C T N O . 2 1 3 7

Acts for which a warehouseman may be liable 1. Failure to stamp “duplicate” on copies of a negotiable receipt; 2. Failure to place “non-negotiable”/”not negotiable” on a non-negotiable receipt 3. Misdelivery of goods 4. Failure to effect cancellation of a negotiable receipt upon delivery of goods 5. Issuing receipt for non-existing goods or misdescribed goods 6. Failure to take care of the goods 7. Failure to give notice in case of sale of goods to satisfy his lien or because the goods are perishable/hazardous

Liability of warehouseman to depositors of commingled goods. — The warehouseman shall be severally liable to each depositor for the care and redelivery of his share of such mass to the same extent and under the same circumstances as if the goods had been kept separate.

Failure to stamp “duplicate on copies of a negotiable receipt Sec. 6, Act 2137, supra

Effect of failure to indicate type of warehouse receipt Converted to negotiable Not converted to non-nego

Failure to put “non-negotiable” Failure to put “negotiable”

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Failure to place “non negotiable”/”not negotiable” on a non-negotiable receipt Sec. 7, Act 2137, supra PROF. HECTOR DE LEON, JR.

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101 delivery may incur by reason of the original receipt remaining outstanding. The court may also in its discretion order the payment of the warehouseman's reasonable costs and counsel fees. The delivery of the goods under an order of the court as provided in this section, shall not relieve the warehouseman from liability to a person to whom the negotiable receipt has been or shall be negotiated for value without notice of the proceedings or of the delivery of the goods.

Misdelivery of the goods S E C . 1 0, A C T N O . 2 1 3 7 Warehouseman's liability for misdelivery. — Where a warehouseman delivers the goods to one who is not in fact lawfully entitled to the possession of them, the warehouseman shall be liable as for conversion to all having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subdivisions (b) and (c) of the preceding section, and though he delivered the goods as authorized by said subdivisions, he shall be so liable, if prior to such delivery he had either: (a) Been requested, by or on behalf of the person lawfully entitled to a right of property or possession in the goods, not to make such deliver; or (b) Had information that the delivery about to be made was to one not lawfully entitled to the possession of the goods.

S E C . 1 5, A C T N O . 2 1 3 7 Effect of duplicate receipts. — A receipt upon the face of which the word "duplicate" is plainly placed is a representation and warranty by the warehouseman that such receipt is an accurate copy of an original receipt properly issued and uncanceled at the date of the issue of the duplicate, but shall impose upon him no other liability.

Issuing receipt for nonexisting/misdescribed goods

Failure to effect cancellation of a negotiable receipt upon delivery of the goods

Sec. 20, Act 2137, supra Failure to take care of the goods

Sec. 11, Act 2137, supra

Sec. 21, Act 2137, supra

Altered, lost, or duplicate receipts

Failure to give notice in case of sale of goods to satisfy his lien/because goods are perishable or hazardous

S E C . 1 3, A C T N O . 2 1 3 7 Altered receipts. — The alteration of a receipt shall not excuse the warehouseman who issued it from any liability if such alteration was: (a) Immaterial, (b) Authorized, or (c) Made without fraudulent intent. If the alteration was authorized, the warehouseman shall be liable according to the terms of the receipt as altered. If the alteration was unauthorized but made without fraudulent intent, the warehouseman shall be liable according to the terms of the receipt as they were before alteration. Material and fraudulent alteration of a receipt shall not excuse the warehouseman who issued it from liability to deliver according to the terms of the receipt as originally issued, the goods for which it was issued but shall excuse him from any other liability to the person who made the alteration and to any person who took with notice of the alteration. Any purchaser of the receipt for value without notice of the alteration shall acquire the same rights against the warehouseman which such purchaser would have acquired if the receipt had not been altered at the time of purchase.

Sec. 33, Act 2137, supra Sec. 34, Act 2137, supra

3. Negotiation & transfer of receipts Rules on negotiation & transfer of warehouse receipts Negotiable WHR Non-negotiable WHR Nature May be negotiated May only be transferred 1. Delivery (if WHR “to bearer” or How indorsement in blank) Delivery made 2. Indorsement + delivery (if WHR “to the order of X”) Title That of original owner That of predecessor acquired

a. Negotiable receipts Who may negotiate S E C . 4 0, A C T N O . 2 1 3 7

S E C . 1 4, A C T N O . 2 1 3 7

Who may negotiate a receipt. — A negotiable receipt may be negotiated: (a) By the owner thereof, or (b) By any person to whom the possession or custody of the receipt has been entrusted by the owner, if, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of the person to whom the possession or custody of

Lost or destroyed receipts. — Where a negotiable receipt has been lost or destroyed, a court of competent jurisdiction may order the delivery of the goods upon satisfactory proof of such loss or destruction and upon the giving of a bond with sufficient sureties to be approved by the court to protect the warehouseman from any liability or expense, which he or any person injured by such

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the receipt has been entrusted, or if, at the time of such entrusting, the receipt is in such form that it may be negotiated by delivery.

essential for negotiation, the transferee acquires a right against the transferor to compel him to indorse the receipt unless a contrary intention appears. The negotiation shall take effect as of the time when the indorsement is actually made.

Manner of negotiation & indorsement S E C . 3 7, A C T N O . 2 1 3 7

Liability of person negotiating a receipt

Negotiation of negotiable receipt of delivery. — A negotiable receipt may be negotiated by delivery: (a) Where, by terms of the receipt, the warehouseman undertakes to deliver the goods to the bearer, or (b) Where, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of a specified person, and such person or a subsequent indorsee of the receipt has indorsed it in blank or to bearer. Where, by the terms of a negotiable receipt, the goods are deliverable to bearer or where a negotiable receipt has been indorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and, in such case, the receipt shall thereafter be negotiated only by the indorsement of such indorsee.

S E C . 4 5, A C T N O . 2 1 3 7 Indorser not a guarantor. — The indorsement of a receipt shall not make the indorser liable for any failure on the part of the warehouseman or previous indorsers of the receipt to fulfill their respective obligations.

When negotiation not impaired by fraud, etc. S E C . 4 7, A C T N O . 2 1 3 7 When negotiation not impaired by fraud, mistake or duress. — The validity of the negotiation of a receipt is not impaired by the fact that such negotiation was a breach of duty on the part of the person making the negotiation or by the fact that the owner of the receipt was induced by fraud, mistake or duress or to entrust the possession or custody of the receipt to such person, if the person to whom the receipt was negotiated or a person to whom the receipt was subsequently negotiated paid value therefor, without notice of the breach of duty, or fraud, mistake or duress.

S E C . 3 8, A C T N O . 2 1 3 7 Negotiation of negotiable receipt by indorsement. — A negotiable receipt may be negotiated by the indorsement of the person to whose order the goods are, by the terms of the receipt, deliverable. Such indorsement may be in blank, to bearer or to a specified person. If indorsed to a specified person, it may be again negotiated by the indorsement of such person in blank, to bearer or to another specified person. Subsequent negotiation may be made in like manner.

Subsequent negotiation S E C . 4 8, A C T N O . 2 1 3 7 Subsequent negotiation. — Where a person having sold, mortgaged, or pledged goods which are in warehouse and for which a negotiable receipt has been issued, or having sold, mortgaged, or pledged the negotiable receipt representing such goods, continues in possession of the negotiable receipt, the subsequent negotiation thereof by the person under any sale or other disposition thereof to any person receiving the same in good faith, for value and without notice of the previous sale, mortgage or pledge, shall have the same effect as if the first purchaser of the goods or receipt had expressly authorized the subsequent negotiation.

Rights of person to whom a receipt was negotiated S E C . 4 1, A C T N O . 2 1 3 7 Rights of person to whom a receipt has been negotiated. — A person to whom a negotiable receipt has been duly negotiated acquires thereby: (a) Such title to the goods as the person negotiating the receipt to him had or had ability to convey to a purchaser in good faith for value, and also such title to the goods as the depositor or person to whose order the goods were to be delivered by the terms of the receipt had or had ability to convey to a purchaser in good faith for value, and (b) The direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt as fully as if the warehouseman and contracted directly with him.

b. Non-negotiable receipts Who may transfer The holder of the non-negotiable WHR may transfer it by delivery.

Rights of person to whom negotiable receipt was transferred without indorsement

S E C . 3 9, A C T N O . 2 1 3 7 Transfer of receipt. — A receipt which is not in such form that it can be negotiated by delivery may be transferred by the holder by delivery to a purchaser or donee.

S E C . 4 3, A C T N O . 2 1 3 7 Transfer of negotiable receipt without indorsement. — Where a negotiable receipt is transferred for value by delivery and the indorsement of the transferor is

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Manner of transfer: delivery

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A non-negotiable receipt can not be negotiated, and the indorsement of such a receipt gives the transferee no additional right.

Rights of persons to whom a receipt was transferred

S E C . 5 1, A C T N O . 2 1 3 7

S E C . 4 2, A C T N O . 2 1 3 7 Rights of person to whom receipt has been transferred. — A person to whom a receipt has been transferred but not negotiated acquires thereby, as against the transferor, the title of the goods subject to the terms of any agreement with the transferor. If the receipt is non-negotiable, such person also acquires the right to notify the warehouseman of the transfer to him of such receipt and thereby to acquire the direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt.

Issue of receipt containing false statement. — A warehouseman, or any officer, agent or servant of a warehouseman who fraudulently issues or aids in fraudulently issuing a receipt for goods knowing that it contains any false statement, shall be guilty of a crime, and upon conviction, shall be punished for each offense by imprisonment not exceeding one year, or by a fine not exceeding two thousand pesos, or by both.

S E C . 5 2, A C T N O . 2 1 3 7 Issue of duplicate receipt not so marked. — A warehouse, or any officer, agent, or servant of a warehouseman who issues or aids in issuing a duplicate or additional negotiable receipt for goods knowing that a former negotiable receipt for the same goods or any part of them is outstanding and uncanceled, without plainly placing upon the face thereof the word "duplicate" except in the case of a lost or destroyed receipt after proceedings are provided for in section fourteen, shall be guilty of a crime, and, upon conviction, shall be punished for each offense by imprisonment not exceeding five years, or by a fine not exceeding ten thousand pesos, or by both.

c. Warranties on sale of receipts S E C . 4 4, A C T N O . 2 1 3 7 Warranties of a sale of receipt. — A person who, for value, negotiates or transfers a receipt by indorsement or delivery, including one who assigns for value a claim secured by a receipt, unless a contrary intention appears, warrants: (a) That the receipt is genuine, (b) That he has a legal right to negotiate or transfer it, (c) That he has knowledge of no fact which would impair the validity or worth of the receipt, and (d) That he has a right to transfer the title to the goods and that the goods are merchantable or fit for a particular purpose whenever such warranties would have been implied, if the contract of the parties had been to transfer without a receipt of the goods represented thereby.

S E C . 5 3, A C T N O . 2 1 3 7 Issue for warehouseman's goods or receipts which do not state that fact. — Where they are deposited with or held by a warehouseman goods of which he is owner, either solely or jointly or in common with others, such warehouseman, or any of his officers, agents, or servants who, knowing this ownership, issues or aids in issuing a negotiable receipt for such goods which does not state such ownership, shall be guilty of a crime, and, upon conviction, shall be punished for each offense by imprisonment not exceeding one year, or by a fine not exceeding two thousand pesos, or by both.

S E C . 4 6, A C T N O . 2 1 3 7 No warranty implied from accepting payment of a debt. — A mortgagee, pledgee, or holder for security of a receipt who, in good faith, demands or receives payment of the debt for which such receipt is security, whether from a party to a draft drawn for such debt or from any other person, shall not, by so doing, be deemed to represent or to warrant the genuineness of such receipt or the quantity or quality of the goods therein described.

S E C . 5 4, A C T N O . 2 1 3 7 Delivery of goods without obtaining negotiable receipt. — A warehouseman, or any officer, agent, or servant of a warehouseman, who delivers goods out of the possession of such warehouseman, knowing that a negotiable receipt the negotiation of which would transfer the right to the possession of such goods is outstanding and uncanceled, without obtaining the possession of such receipt at or before the time of such delivery, shall, except in the cases provided for in sections fourteen and thirty-six, be found guilty of a crime, and, upon conviction, shall be punished for each offense by imprisonment not exceeding one year, or by a fine not exceeding two thousand pesos, or by both.

Sec. 47, Act 2137, supra

4. Criminal offenses S E C . 5 0, A C T N O . 2 1 3 7 Issue of receipt for goods not received. — A warehouseman, or an officer, agent, or servant of a warehouseman who issues or aids in issuing a receipt knowing that the goods for which such receipt is issued have not been actually received by such warehouseman, or are not under his actual control at

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the time of issuing such receipt, shall be guilty of a crime, and, upon conviction, shall be punished for each offense by imprisonment not exceeding five years, or by a fine not exceeding ten thousand pesos, or both.

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S E C . 5 5, A C T N O . 2 1 3 7

F. TRUST RECEIPTS LAW

Negotiation of receipt for mortgaged goods. — Any person who deposits goods to which he has no title, or upon which there is a lien or mortgage, and who takes for such goods a negotiable receipt which he afterwards negotiates for value with intent to deceive and without disclosing his want of title or the existence of the lien or mortgage, shall be guilty of a crime, and, upon conviction, shall be punished for each offense by imprisonment not exceeding one year, or by a fine not exceeding two thousand pesos, or by both.

1. Concepts The Trust Receipts Law covers trust receipt transactions, whereby an entruster owns or has interest in goods and delivers them to an entrustee who must receive the goods, sell them, and turn over the proceeds of such sale to the entruster, or return them if he fails to sell the same. Trust receipts are the documents that evidence this transaction, and may cover goods, documents, and instruments given in trust to the entrustee.

PNB v. SE (1996)

a. Trust receipts

A warehouseman may validly refuse to deliver the property entrusted to him when his warehouseman’s lien has not yet been satisfied. The rational for such right to demand payment before delivery is that the warehouse man’s lien is extinguished upon surrendering the goods in his possession.

S E C. 3 ( J ), P D N O. 1 1 5

Facts: Ramos and Zoleta offered their quedans that pertained to sugar stocks in the possession of NASR as security for their loans with PNB—the receipts were endorsed in favor of the bank. Upon their default, PNB demanded that NASR release the sugar stocks covered by the quedans. NASR refused to do so and claimed ownership over the same. Issue: WON NASR was the owner of the sugar stocks – NO. It was, however, entitled to payment of the proper storage fees. Held: The Supreme Court affirmed the finding of the RTC and CA that the NASR was actually a warehouseman charged with the safekeeping with the sugar stocks. As a result of such designation, it was entitled to the payment of the proper storage fees and the amounts spent to preserve the property deposited. PNB can not refuse to pay such charges because by enforcing its claim under the quedans, it also recognized the role of NASR as a warehouseman whose rights are provided for by law. As is often held by the court, a party will not be allowed to claim benefits from a contract and deny its validity in the same breath.

"Trust Receipt" shall refer to the written or printed document signed by the entrustee in favor of the entruster containing terms and conditions substantially complying with the provisions of this Decree. No further formality of execution or authentication shall be necessary to the validity of a trust receipt.

b. Entruster S E C. 3 ( C ), P D N O. 1 1 5 "Entruster" shall refer to the person holding title over the goods, documents, or instruments subject of a trust receipt transaction, and any successor in interest of such person.

c. Entrustee S E C. 3 ( B ), P D N O. 1 1 5 "Entrustee" shall refer to the person having or taking possession of goods, documents or instruments under a trust receipt transaction, and any successor in interest of such person for the purpose or purposes specified in the trust receipt agreement.

d. Trust receipt transaction S E C. 4, P D N O. 1 1 5 What constitutes a trust receipt transaction. A trust receipt transaction, within the meaning of this Decree, is any transaction by and between a person referred to in this Decree as the entruster, and another person referred to in this Decree as entrustee, whereby the entruster, who owns or holds absolute title or security interests over certain specified goods, documents or instruments, releases the same to the possession of the entrustee upon the latter's execution and delivery to the entruster of a signed document called a "trust receipt" wherein the entrustee binds himself to hold the designated goods, documents or instruments in trust for the entruster and to sell or otherwise dispose of the goods, documents or instruments with the obligation to turn over to the entruster the proceeds thereof to the extent of the amount owing to the entruster or as appears in the trust receipt or the goods, documents or instruments themselves if they are unsold or not otherwise disposed of, in accordance

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CREDIT TRANSACTIONS with the terms and conditions specified in the trust receipt, or for other purposes substantially equivalent to any of the following: 7. In the case of goods or documents, (a) to sell the goods or procure their sale; or (b) to manufacture or process the goods with the purpose of ultimate sale: Provided, That, in the case of goods delivered under trust receipt for the purpose of manufacturing or processing before its ultimate sale, the entruster shall retain its title over the goods whether in its original or processed form until the entrustee has complied fully with his obligation under the trust receipt; or (c) to load, unload, ship or tranship or otherwise deal with them in a manner preliminary or necessary to their sale; or 8. In the case of instruments, a) to sell or procure their sale or exchange; or b) to deliver them to a principal; or c) to effect the consummation of some transactions involving delivery to a depository or register; or d) to effect their presentation, collection or renewal The sale of goods, documents or instruments by a person in the business of selling goods, documents or instruments for profit who, at the outset of the transaction, has, as against the buyer, general property rights in such goods, documents or instruments, or who sells the same to the buyer on credit, retaining title or other interest as security for the payment of the purchase price, does not constitute a trust receipt transaction and is outside the purview and coverage of this Decree.

105 b. Currency S E C. 6, P D N O. 1 1 5 Currency in which a trust receipt may be denominated. A trust receipt may be denominated in the Philippine currency or any foreign currency acceptable and eligible as part of international reserves of the Philippines, the provisions of existing law, executive orders, rules and regulations to the contrary notwithstanding: Provided, however, That in the case of trust receipts denominated in foreign currency, payment shall be made in its equivalent in Philippine currency computed at the prevailing exchange rate on the date the proceeds of sale of the goods, documents or instruments held in trust by the entrustee are turned over to the entruster or on such other date as may be stipulated in the trust receipt or other agreements executed between the entruster and the entrustee. The value of the goods in the trust receipt may be designated in PH peso or in any foreign currency agreed upon by the parties, but payments shall always be made in PhP. Hence if a foreign currency is designated, payment must be made in its equivalent amount in PhP, at the prevailing exchange rate at the time of the turnover or at any time agreed upon.

3. Rights of entruster 1. 2. 3. 4.

S E C. 7, P D N O. 1 1 5

2. Trust receipts

Rights of the entruster. The entruster shall be entitled to the proceeds from the sale of the goods, documents or instruments released under a trust receipt to the entrustee to the extent of the amount owing to the entruster or as appears in the trust receipt, or to the return of the goods, documents or instruments in case of non-sale, and to the enforcement of all other rights conferred on him in the trust receipt provided such are not contrary to the provisions of this Decree. The entruster may cancel the trust and take possession of the goods, documents or instruments subject of the trust or of the proceeds realized therefrom at any time upon default or failure of the entrustee to comply with any of the terms and conditions of the trust receipt or any other agreement between the entruster and the entrustee, and the entruster in possession of the goods, documents or instruments may, on or after default, give notice to the entrustee of the intention to sell, and may, not less than five days after serving or sending of such notice, sell the goods, documents or instruments at public or private sale, and the entruster may, at a public sale, become a purchaser. The proceeds of any such sale, whether public or private, shall be applied (a) to the payment of the expenses thereof; (b) to the payment of the expenses of re-taking, keeping and storing the goods, documents or instruments; (c) to the

a. Form & contents S E C. 5, P D N O. 1 1 5 Form of trust receipts; contents. A trust receipt need not be in any particular form, but every such receipt must substantially contain (a) a description of the goods, documents or instruments subject of the trust receipt; (2) the total invoice value of the goods and the amount of the draft to be paid by the entrustee; (3) an undertaking or a commitment of the entrustee (a) to hold in trust for the entruster the goods, documents or instruments therein described; (b) to dispose of them in the manner provided for in the trust receipt; and (c) to turn over the proceeds of the sale of the goods, documents or instruments to the entruster to the extent of the amount owing to the entruster or as appears in the trust receipt or to return the goods, documents or instruments in the event of their non-sale within the period specified therein. The trust receipt may contain other terms and conditions agreed upon by the parties in addition to those hereinabove enumerated provided that such terms and conditions shall not be contrary to the provisions of this Decree, any existing laws, public policy or morals, public order or good customs.

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Right to proceeds of sale Right to return of things, in case no sale is made Right to cancel trust upon entrustee’s default Right to enforce terms and conditions of the trust receipt

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satisfaction of the entrustee's indebtedness to the entruster. The entrustee shall receive any surplus but shall be liable to the entruster for any deficiency. Notice of sale shall be deemed sufficiently given if in writing, and either personally served on the entrustee or sent by post-paid ordinary mail to the entrustee's last known business address.

6. Rights of purchaser for value & in good faith S E C. 1 1, P D N O. 1 1 5 Rights of purchaser for value and in good faith. Any purchaser of goods from an entrustee with right to sell, or of documents or instruments through their customary form of transfer, who buys the goods, documents, or instruments for value and in good faith from the entrustee, acquires said goods, documents or instruments free from the entruster's security interest.

S E C. 8, P D N O. 1 1 5 Entruster not responsible on sale by entrustee. The entruster holding a security interest shall not, merely by virtue of such interest or having given the entrustee liberty of sale or other disposition of the goods, documents or instruments under the terms of the trust receipt transaction be responsible as principal or as vendor under any sale or contract to sell made by the entrustee.

A purchaser for value and in good faith who buys goods from the entrustee acquires the goods free from the security interest.

7. Validity of entruster’ s security interest as against creditors

4. Obligations of entrustee 1. Hold goods, documents, and instruments in trust 2. Sell or otherwise dispose of them according to terms and conditions of trust receipt 3. Turn over proceeds of sale 4. Return the goods, documents, or instruments when not sold 5. Insure the goods for their total value 6. Not to commingle entrustor’s goods with others

S E C. 1 2, P D N O. 1 1 5 Validity of entruster's security interest as against creditors. The entruster's security interest in goods, documents, or instruments pursuant to the written terms of a trust receipt shall be valid as against all creditors of the entrustee for the duration of the trust receipt agreement.

8. Penalty clause

S E C. 9, P D N O. 1 1 5 Obligations of the entrustee. The entrustee shall (1) hold the goods, documents or instruments in trust for the entruster and shall dispose of them strictly in accordance with the terms and conditions of the trust receipt; (2) receive the proceeds in trust for the entruster and turn over the same to the entruster to the extent of the amount owing to the entruster or as appears on the trust receipt; (3) insure the goods for their total value against loss from fire, theft, pilferage or other casualties; (4) keep said goods or proceeds thereof whether in money or whatever form, separate and capable of identification as property of the entruster; (5) return the goods, documents or instruments in the event of non-sale or upon demand of the entruster; and (6) observe all other terms and conditions of the trust receipt not contrary to the provisions of this Decree.

S E C. 1 3, P D N O. 1 1 5 Penalty clause. The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article Three hundred and fifteen, paragraph one (b) of Act Numbered Three thousand eight hundred and fifteen, as amended, otherwise known as the Revised Penal Code. If the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty provided for in this Decree shall be imposed upon the directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense.

5. Liability of entrustee for loss S E C. 1 0, P D N O. 1 1 5 Liability of entrustee for loss. The risk of loss shall be borne by the entrustee. Loss of goods, documents or instruments which are the subject of a trust receipt, pending their disposition, irrespective of whether or not it was due to the fault or negligence of the entrustee, shall not extinguish his obligation to the entruster for the value thereof.

Failure to turn over the proceeds of the sale or to return the goods in case of non-sale would make the entrustee liable for estafa under Art. 315, RPC.

HUR TIN YANG v. PEOPLE of the PH (2013)

For loss through force majeure pending disposition, the entrustee is liable, regardless of whether or not it was due to his fault or negligence. This is an exception to the rule of res perit domino.

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An entrustee under the Trust Receipts Law has two obligations: 1. To return the money received through selling the property entrusted to him (entregarla) 2. To return the goods received that remain unsold (devolverla)

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The violation of any of these obligations constitutes estafa. The absence or impossibility of complying with either of these requirements, however, renders the provisions of the Trust Receipts Law inapplicable as to the concerned transaction. Facts: Supermax obtained loans from Metrobank in order to finance their purchase of various construction materials. As security for their loan, Superbank signed 24 trust receipts for the materials purchased and obliged itself to hold the same or the proceeds thereof in trust to the extent of the amount stated in the receipts. Upon the default of Supermax in paying its outstanding liabilities, the bank filed a criminal complaint of estafa against it. Supermax alleged that the trust receipts were only meant to act as additional security for their loan and that they had procured the construction materials to use them personally, not to resell them. Further, they alleged that Metrobank knew of such intent to personally use the construction materials bought with the amounts that the latter loaned. Issue: WON the petitioner is liable for estafa as a result of violating the Trust Receipt Law’s provisions – NO Held: When two parties enter into an agreement with the understanding that the return of the goods subject of the trust receipt is not possible through no fault of the entrustee, it is not a trust receipt transaction penalized under Sec. 13 of PD 115 in relation to the RPC. In such a case, the only obligation of the receiving party is to return the proceeds of said sale transaction— in effect it takes the nature of a simple loan.

SPS. DELA CRUZ v. PLANTERS (2013) The sale of goods by a person in the business of selling goods for profit who at the outset of the transaction, has, as against the buyer, general property rights in the good, or who sells the goods to the buyer on credit, retaining title or other interest as security for the payment of the purchase price, does not constitute a trust receipts transaction and is outside the law’s coverage. Facts: PPI granted the spouses Dela Cruz a regular credit line worth 200k with trust receipts as collaterals. Pursuant to their contract, PPI released various fertilizer and agricultural chemical products which the spouses sold to several farmers. After the credit term lapsed, the PPI sought to enforce payment of what remained of the spouses’s obligations by holding the spouses liable under the provisions of the trust receipts law.

Acknow ledgm ents

References

A2016 digests

Issue: WON the spouses Dela Cruz are liable under the Trust Receipts Law – NO Held: The agreement between the parties and their contemporaneous acts evidenced a regular loan and a creditordebtor relationship and not entruster-entrustee. Further, Sec. 42 provides a specific exception to the applicability of the TRL. The act of PPI in selling the agricultural products to the spouses on credit by virtue of the credit line took their transaction outside the ambit of the Trust Receipts Law.

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Comments and Cases on Credit Transactions. De Leon and De Leon, Jr.

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DJ Dolot Victoria Tiangco Dianne Cadorna Maye Cristobal Carlos Pagdanganan Carlos Poblador Block A2016

Additional notes

Info vetting

Best block ever

PROF. HECTOR DE LEON, JR.