Sectrans Q&A

SECURITY TRANSACTIONS Mortgage

Q: A loaned to B money for which B pledged shares of stock. It was agreed on that if B failed to pay the loan within 4 years, A is authorized to foreclose on the shares of  stock. B delivered possession of the shares to A. The loan was not paid on time. After  After  the 4 years, may the shares of stock be deemed owned by A or not? Explain. A: No. Foreclosure is necessary. The creditor cannot appropriate the things given by way of pledge (Art. 2088, NCC). Even if it was stipulated that A becomes the owner of  the shares upon default, such stipulation is void for being  pactum commissorium. commissorium. Q: To secure a loan obtained from B-Bank, A assigned her leasehold rights over a public market stall in favor of B-Bank. The deed provides that, in case of default, B-Bank shall have the right to sell A’s rights as her attorney-in-fact, and apply the proceeds to the payment of the loan. Q(1): Was the assignment of leasehold rights a mortgage or a cession? Why? A: The assignment assignment was a mortgag mortgage e of the leasehold leasehold rights. A cession cession would would have transferred ownership to the bank. The grant of authority to the bank to sell the leasehold rights in case of default is proof that ownership was not transferred and that that a mere mere encum encumbra branc nce e was was const constitu itute ted. d. There There would would be no need need for for such such authority if it were a cession. Q(2): Assuming the assignment to be a mortgage, does the provision giving B-Bank the power to sell A’s rights constitute  pactum commissorium or not? Why? A: No, the clause is not a  pactum commissorium. commissorium. It is  pactum commissorium when default in the payment of the loan automatically vests ownership of the encumbered property in the bank. In this case, B-Bank does not automatically become owner of  the property upon default of the mortgagor. The bank has to sell the property and apply the proceeds to the indebtedness. Q: A bought a residential condominium unit from B and paid the price in full. A moved into the unit, but was not given the Condominium Certificate of Title covering the property. Unknown to A, B subsequently mortgaged the entire condominium building to C-Bank as security for a loan. B failed to pay the loan and the bank foreclosed the mortgage. mortgage. At the foreclosure foreclosure sale, the bank acquired the building. building. When A learned learned about this, he filed an action to annul the foreclosure sale insofar as his unit was concerned. concerned. C-Bank argued that it relied on the clean condominium certificates certificates of title presented by B, and therefore, it was a mortgagee in good faith. Is this defense tenable or not? Why? A: C-Bank’s defense defense is untenable. untenable. As a rule, an innocent purchaser for value acquires a good and a clean title to the property. However, one who closes his eyes to facts that should put a reasonable man on guard is not an innocent purchaser for value. CBank is expected, as a matter of standard operating procedure, to have conducted an ocular inspection of the premises before granting any loan. Had C-Bank followed such, it should have discovered that the condominium unit was already occupied and

could have led it to make further inquiries. Under the circumstances, C-Bank cannot be considered a mortgagee and buyer in good faith. Usury Law 

Q: A borrowed a P300,000 housing loan from the bank at 18% per annum. The promissory note expressly states the bank “reserves the right to increase the interest within the limits allowed by law.” By virtue of such proviso, and over the objections of  A, the bank increased the interest rate periodically until it reached 48% per annum. A filed an action questioning the right of the bank to such increases. The bank argued that the Central Bank had already suspended the Usury Law. Will the action prosper  or not? Why? A: The action will prosper. While it is true that that interest ceilings set by the Usury Law are no longer in force, it has been held that PD No. 1684 and CB Circular No. 905 merely allow contracting parties to stipulate freely on any adjustment in the interest rate on a loan or forbearance of money, but do not authorize a unilateral increase of  the interest rate by one party without the other’s consent ( PNB v. CA, 238 SCRA 20 (1994)). To say otherwise will violate the principle of mutuality of contracts under Art. 1308 of the NCC. Therefore, to be valid, any changes of interest must be mutually agreed upon by the parties ( Dizon v. Magsaysay , 57 SCRA 250 (1974)). In the present problem, the increase is void because the debtor has not given his consent to the increase.  Antichresis

Q: A owns a plantation which she can no longer properly manage due to illness. Since A is indebted to B, she asks B to manage the plantation and apply the harvest to the payment of her obligation to him, principal and interest, until her indebtedness shall have been fully paid. B agrees. Q(1): What kind of contract is entered into between A and B? Explain. A: A contract of antichresis was entered into between A and B. Under Art. 2132 of the NCC, by a contract of antichresis, the creditor acquires the right to receive the fruits of an immovable of his debtor, with the obligation to apply the same to the payment of the interest, and thereafter, to the principal of his credit. Q(2): What specific obligations are imposed by law on B as a consequence of  their contract? A: B must pay taxes and charges upon the land and bear the necessary expenses for  preservation and repair which he may deduct form the fruits (Art. 2135, NCC). Q(3): Does the law require any specific form for the validity of their contract? Explain. A: The amount of the principal and interest must be specified in writing, otherwise the antichresis will be void (Art. 2134, NCC).

Q(4): May A re-acquire the plantation before her entire indebtedness shall have been fully paid? Explain. A: No. Art. 2136 provides that the debtor cannot re-acquire the enjoyment of the immovable without first having totally paid what he owes the creditor. However, it is potestative on the part of the creditor to do so in order to exempt him from his obligation under Art. 2135 NCC. The debtor cannot re-acquire the enjoyment unless B compels A to enter again the enjoyment of the property. PARTNERSHIP Q: A and B formed a partnership to operate a car repair shop. A provided the capital while B contributed his labor and industry. On the other side of the shop, A operated a coffee shop, while on the other side, B put up a car accessories store. May they engage in such separate businesses? Why? A: A, the capitalist partner, may engage in the coffee shop business because it is not the same kind of business the partnership is engaged in. On the other hand, B may not engage in any other business, unless their partnership expressly permits him to do so, because as an industrial partner, he has to devote his full time to the business of  the partnership (Art. 1789, NCC). Q: A, B and C formed a business partnership for the purpose of engaging in advertising for 5 years. A assigned to D her interest in the partnership. When B and C learned of  the assignment, they decided to dissolve the partnership before the expiration of its term as they previously had an unproductive business relationship with D. Unaware of  the move of B and C, but sensing their negative reaction to his acquisition of A’s interest, D simultaneously petitioned for the dissolution of the partnership. Q(1): Is the dissolution done by B and C without A and D’ consent valid? Explain. A: Under Art. 1830 (1) (c) of the NCC, the dissolution by B and C is valid and did not violate the contract of partnership, even if A and D did not consent to it. A’s consent is not necessary because she had already assigned her interest to D. D’s consent is not also necessary because the assignment to him of A’s interest did not make him a partner under Art. 1813 of the NCC. Q(2): Does D have any right to petition for the dissolution of the partnership before the expiration of its specified term? Explain. A: No, D has no right to petition for dissolution because he does not have the standing of a partner (Art. 1812, NCC). AGENCY Q: A executed a special power of attorney authorizing B to secure a loan from any bank and to mortgage his property covered by the owner’s OCT. In securing the loan from C-Bank, B did not specify that he was acting for A in the transaction with the said bank. Is A liable for the bank loan? Why or why not?

A: A is liable for the bank loan because he authorized the mortgage on his property to secure the loan contracted by B. If B defaults and fails to pay the loan, A is liable to pay. However, his liability is limited to the extent of the value of the said property. Q: As an agent, A was given a guarantee commission, in addition to his regular  commission, after he sold 20 units of refrigerators to a customer, B-Hotel. B-Hotel failed to pay for the units sold. A’s principal, X demanded from A payment for the customer’s accountability. A objected, on the ground that his job was only to sell and not to collect payment for units bought by the customer. Is A’s objection valid? Can X collect from him or not? A: No. A’s objection is not valid and X can collect form him. Since A accepted a guarantee commission, in addition to his regular commission, he agreed to bear the risk of collection and to pay the principal the proceeds of the sale on the same terms agreed upon by the purchaser (Art. 1907, NCC). Q: A sold a large parcel of land to B for P100 Million payable in annual installments over  a period of ten years, but title will remain with A until the purchase price is fully paid. To enable B to pay the price, A gave him a power of attorney authorizing him to subdivide the land, sell the individual lots, and deliver the proceeds to A, to be applied to the purchase price. Five years later, A revoked the power of attorney and took the sale of the subdivision lots himself. Is the revocation valid or not? Why? A: The revocation is not valid. The power of attorney given to the buyer is irrevocable because it is coupled with an interest: the agency is the means of fulfilling the obligation of the buyer to pay the price of the land (Art 1927, NCC). In other words, a bilateral contract (contract to buy and sell the land) is dependent on the agency. (2001) Q. A asked B to buy some groceries for her in the supermarket. Was there a nominate contract entered into between A and B? In the affirmative, what was it? Explain. A. YES. There was a nominate contract. On the assumption that B accepted the request of A to buy some groceries for her in the supermarket, what they entered into was the nominate contract of Agency. Art. 1868 of the New Civil Code provides that by the contract of agency, a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of  the latter. ALTERNATIVE ANSWER: YES. There entered into a nominate contract of lease of  service in the absence of relation of principal and agent between them (Art. 1644, NCC). LEASE Q: A leased the fishpond of B for a period of 3 years with an option to purchase the same during the period of the lease. After the expiration of the 3-year period, B allowed A to remain in the leased premises at the same rental rate. Later, A tendered the amount to B and demanded that the latter execute a deed of absolute sale of the fishpond in his favor. B refused, on the ground that A no longer had an option to buy

the fishpond. A filed an action for specific performance. Will the action prosper or  not? Why? A: No. the action will not prosper. The implied renewal of the lease on a month to month basis did not have the effect of extending the life of the option to purchase which expired at the end of the original lease period. The lessor is correct in refusing to sell on the ground that the option had expired.