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Ateneo Reviewer
Ateneo Reviewer
Civil Law
SUMMER REVIEWER
LOAN
CHARACTERISTICS
1. real contract delivery is essential for
perfection of the loan (BUT a promise to
lend, being consensual, is binding upon the
parties)
2. unilateral contract - only the borrower has
the obligation
KINDS
1. commodatum where the bailor delivers to
the bailee a non-consumable thing so that
the latter may use it for a certain time and
return the identical thing
kinds of commodatum:
a. ordinary commodatum use by the
bailee of the thing is for a certain
period of time
b. precarium one whereby the bailor
may demand the thing loaned at will;
exists in cases where:
i. neither the duration of the
contract nor the use to which
the thing loaned should be
devoted has been stipulated
ii. if the use of the thing is merely
tolerated by the owner
2. mutuum or simple loan - where the lender
delivers to the borrower money or other
consumable thing upon the condition that the
latter will pay the same amount of the same
kind and quality (when it is consumed in a
manner appropriate to its purpose)
LOAN
1. delivery by one party
and the receipt by
the other party of a
given sum of money
or other consumable
thing
upon
an
agreement, express
or implied
2. to repay the same
amount of the same
kind and quality, w/
or w/o interest
CREDIT
The
ability
of
an
individual
to
borrow
money or things by virtue
of the confidence or trust
reposed by a lender that
he will pay what he may
promise w/in a specified
period
Adviser: Dean Cynthia Roxas-Del Castillo; Heads: Joy Marie Ponsaran, Eleanor Mateo; Understudies: Joy Stephanie
Tajan, John Paul Lim; Subject Head: Sarah Lopez; Pledgee: Aiza Constantino
DISCOUNTING PAPER
Interest is deducted in
advance
Double name paper
More expensive for the
borrower
because
interest is calculated on
the amount loaned and
not the amount actually
received
COMMODATUM
Object
Ownership
of the thing
Cause
Thing to be
returned
Subject
Matter
Purpose
When to
return
Who bears
risk of loss
Nature
Ordinarily nonconsumable
Ownership
is
retained by the
lender
Essentially
gratuitous
Borrower must
return the same
thing loaned
MUTUUM
(SIMPLE LOAN)
Money or other
consumable thing
Ownership
is
transferred to the
borrower
Gratuitous
or
onerous
(w/
stipulation to pay
interest)
Borrower
need
only pay the same
amount of the
same kind and
quality
Only
personal
property
COMMODATUM
(Articles 1935-1952)
1. cause: essentially gratuitous (otherwise, if
there Is compensation, it might be lease)
2. purpose: temporary use of the thing loaned
but not its fruits, unless stipulated or is
incidental (otherwise, if the bailee is not
entitled to the use of the thing, it might be
deposit)
3. subject matter: generally non-consumable
goods but if the consumable goods are not
for consumption, such may be the subject of
the commodatum, as when merely for
exhibition (Art. 1936)
4. bailor need not be the owner of the thing
loaned (Art 1938)
it is sufficient that he has a possessory
interest
a mere lessee or usufructuary may lend
but the borrower or bailee himself may
not lend not lease the thing loaned to him
to a third person (Art. 1932[2])
5. purely personal
a. death of either party terminates the
contract UNLESS there is stipulation to the
contrary
b. generally, bailee can neither lend nor
lease the object to a 3rd person in the
absence of some agreement to that effect
c. use of the thing loaned may extend to the
bailees household (who are not considered
3rd persons) except:
1. when there is a contrary stipulation
2. nature of the thing forbids such use
6. enjoyment of fruits a stipulation to make
use of fruits is valid, but it is never presumed.
The enjoyment of the fruits must only be
incidental to the use of the thing itself, for if it
is the main cause, the contract may be one
of usufruct.
3.
4.
5.
6.
7.
SIMPLE LOAN
Signifies the delivery of
money or some other
consumable thing to
another w/ a promise to
repay an equivalent
amount of the same kind
and quality
There is a transfer of
ownership of the thing
delivered
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hidden
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1951)
Requisites: (the following must concur)
a. there is a flaw or defect in the thing
loaned
b. the flaw or defect is hidden
c. the bailor is aware thereof
d. he does not advise the bailee of the
same
RENT/LEASE
One party delivers to
another
some
nonconsumable thing in order
that the latter may use it
during a certain period
and return it to the former
The owner of the lessee
or the lessor of the
property does not lose his
ownership. He simply
loses control over the
property rented during the
period of the contract
The relation is between
landlord and tenant
The owner of the property
receives compensation
or price either in money,
provisions, chattels, or
labor from the occupant
thereof in return for its
use
Basis of
comparison
MUTUUM
COMMODATUM
BARTER
Subject
matter
Money or
any other
fungible
things/
Personal
or
real
property
(generally nonconsumable)
Nonfungible or
nonconsumabl
Nature of
contract
May
be
gratuitous
e things
Return
the
identical thing
borrowed when
the time has
expired or the
purpose
has
been served
Always
gratuitous
The
equivalent
thing
is
given
in
return for
what has
been
received
Onerous
NATURE OF MUTUUM
a. bilateral - borrower promise to pay is the
consideration for the lenders obligation to
furnish the loan
b. no criminal liability upon failure to pay
SUBJECT MATTER
a. fungible or consumable-depending on the
intent of the parties, that the return of the thing
is equivalent only and not the identical thing
b. money
c. if the transfer of ownership is on a nonfungible thing, with the obligation of the other
to give things of the same kind, quantity and
quality, it is a barter
INTEREST
GR: Interest must be expressly stipulated in writing,
and it must be lawful (Art. 1956)
Exceptions:
1. Indemnity for damages the debtor in delay
is liable to pay legal interest (6%/12%) as
indemnity for damages even in the absence of
a stipulation for the payment of interest.
Interest as indemnity for damages is payable
only in case of default or non-performance of
contract.
Basis for computation for indemnity:
a. Central Bank Circular 416 12% p.a. in
cases of:
Loans
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credits
Judgments involving such loans or
forbearance, in the absence of the
express agreement as to such rate
of interest
During the interim period from the
date judgment until actual payment
b. Art. 2209 of the Civil Code 6% p.a. in
cases of:
BARTER
BARTER - 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.
DEPOSIT
DEPOSIT - A deposit is constituted from the moment
a person receives a thing belong 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.
NOTE: it is essential that the depository is not the
owner of the thing deposited
CHARACTERISTICS
1. real - because it is perfected only by the
delivery of the subject matter
BUT an agreement to constitute a deposit is
binding and enforceable, since it is merely
consensual
2. unilateral - if gratuitous
3. bilateral - if with compensation
Basis of
comparison
Deposit
Mutuum
Commodatum
Creation
Purpose
Principal
Purpose
Safekeeping
or mere
custody
Consumption
Transfer of the
use
Deman
dability
Demand
return of the
thing at will
Lender must
wait until
expiration of
period
granted to
debtor
May demand
return at will
Object
Nature
of
contract
Both
movable and
immovable
may be the
object
But in
extrajudicial
deposit, only
a movable
(corporeal)
thing may be
the object
May be
gratuitous
Only money
and
any
other
fungible
thing may be
the object
May be
gratuitous
Judicial
Will of the court
Security or to
ensure the right
of a party to the
property or to
recover in case of
favorable
judgment
Generally
immovables
Always onerous
(PRECARIUM)
or only after
the expiration
of the period
or
accomplishme
nt of the use
of the thing
subject to
exceptions
Both movable
and
immovable
may be the
object
Essentially
and always
gratuitous
Subject
Matter
Cause
Return
thing
of
In whose
behalf it is
held
Extrajudicial
Will
of
the
contracting parties
Custody
and
safekeeping
Movables only
May
be
compensated but
generally
gratuitious
Upon demand of
depositor
Depositor or /3rd
person designated
Basis of
Comparison
Demandability
Benefit
Preference
credit
of
Depositary incapacitated
Depositor capacitated
Depositary does not
incur the obligations of a
depositary
Depositary, however is
liable to:
a) return the thing
deposited while still in his
possession; AND
b) pay the depositor the
amount by which he may
have benefited himself
with the thing or its price
subject to the right of any
3rd person who acquires
the thing in good faith
Irregular
Mutuum
deposit
Demandable at Lender
is
will
of
the bound by the
irregular
provisions
of
depositor
for the
contract
whose
benefit and
cannot
the deposit has seek restitution
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payment
as
provided in the
contract
has
arisen
Benefit accrues Necessity
of
to the depositor
the borrower
Depositor
has Enjoy
no
preference over preference
in
other
creditors the distribution
with respect to
the
thing
deposited
of the debtors
property.
c.
Mutuum
Lender is bound by the
provision of the contract
and
cannot
seek
restitution until the time
for payment, as provided
in the contract has arisen
If with interest, benefit if
both parties
No preference
expenses
of
NECESSARY DEPOSIT
A deposit is necessary when:
1. It is made in compliance with a legal
obligation;
2. It takes place on the occasion of any
calamity, such as fire, storm, flood,
pillage, shipwreck, or other similar
events.
*There must be a causal relation
between the calamity and the constitution
of the deposit.
3. Made by passengers with common
carriers.
as to those baggage the passengers
or their agents carry
4. Made by travelers in hotels or inns. (Art.
1998)
Before keepers of hotels or inns may be held
responsible as depositaries with regard to the
effects of their guests, the following must
concur:
Elements:
a. They have been previously informed
about the effects brought by the guests;
and
b. The latter have taken the precautions
prescribed regarding their safekeeping.
Extent of liability:
a. Liability in hotel rooms which come under
the term baggage or articles such as
clothing as are ordinarily used by
travelers
b. Include those lost or damages in hotel
annexes such as vehicles in the hotels
garage.
When hotel-keeper liable: (Art. 2000
2002)
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cases, the hotelQuickTime and a
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keeper is liable
REGARDLESS
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amount of care exercised:
a. The loss or injury to personal property is
caused by his servants or employees as
well as by strangers (Art. 2000).
b. The loss is caused by the act of a thief or
robber done without the use of arms and
irresistible force. (Art. 2001)
Reason: Hotel-keeper is apparently
negligent.
Judicial
Deposit
By will of the
courts
Purpose
Security;
Secure
the
right of a party
to recover in
case
of
favorable
judgment.
Either movable
or immovable
property
but
generally,
immovable
Always
remunerated
(onerous)
Subject Matter
Remuneration
In
whose
behalf it is held
In behalf of the
person who, by
the judgment,
has a right
Extra-judicial
Deposit
By will of the
parties. Hence,
there
is
a
contract
Custody;
Safekeeping of
the thing
Only movable
property
Generally
gratuitous, but
may
be
compensated
In behalf of the
depositor
or
third
person
designated
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WAREHOUSE
RECEIPTS
LAW
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Scope:
WHICH
WAREHOUSEMAN
IS
3.
1. Conventional;
2. Judicial;
3. Legal
DOUBLE OR SUB-GUARANTY (2051[2])
One constituted to guarantee the obligation of a
guarantor. It should not be confounded with guaranty
wherein several guarantors concur.
Exceptions:
1. With her husbands consent, bind the
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2. Without husbands consent, in cases
provided by law, such as when the guaranty
has redounded to the benefit of the family.
GUARANTY
UNDERTAKEN
KNOWLEDGE OF DEBTOR (2050)
WITHOUT
EXCEED
may
exceed
Reasons:
1. There be assurance that the guarantor had
the true intention to bind himself;
2. To make certain that on making it, the
guarantor proceeded with consciousness of
what he was doing.
GUARANTY COVERED BY THE STATUTE OF
FRAUDS
Guaranty must not only be expressed but
must so be reduced into writing.
Hence, it 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.
It need not appear in a public document.
GUARANTY STRICTLY CONSTRUED
Strictly construed against the creditor in favor of the
guarantor and is not be extended beyond its terms or
specified limits.
If there is any doubt on the terms and conditions of
the guaranty or surety agreements, the doubt should
be resolved in favor of the guarantor or surety.
1. Liability for obligation stipulated
guarantor is liable only for the obligation of
the debtor stipulated upon, and not to
obligations assumed
previous to the
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be so liable is clearly indicated.
2. Liability of surety limited to a fixed period
the surety must only be bound in the
manner and to the extent, and under the
circumstances which are set forth or which
may be inferred from the contract of guaranty
or suretyship, and no farther.
3. Liability of surety to expire on maturity of
principal obligation such stipulation is
WARRANTY
Contract by which a
person is bound to
another
for
the
fulfillment
of
a
promise
or
engagement of a third
party
SURETYSHIP
Assumes liability as a
regular party to the
undertaking
Engagement
is
a
collateral undertaking
Charged as an original
promisor
Secondarily liable he
contracts to pay if, by
the
use
of
due
diligence,
the
dent
cannot be paid
Primarily
liable
OF
Reasons:
1. Guarantor only secondarily liable the
guarantor binds himself to the creditor to
fulfill the obligation of the principal debtor
only in case the latter should fail to do so. If
the principal debtor fulfills the obligation
guaranteed, the guarantor is discharged from
any responsibility.
2. All legal remedies against the debtor to be
first exhausted to warrant recourse
against the guarantor for payment, it may not
be sufficient that the debtor appears
insolvent. Such insolvency may be simulated.
Right of Creditor to Secure Judgment against
Guarantor prior to Exhaustion
GR: An ordinary personal guarantor (NOT a pledgor
or mortgagor), may demand exhaustion of all the
property of the debtor before he can be compelled to
pay.
Exception: The creditor may, prior thereto, secure a
judgment against the guarantor, who shall be entitled,
however, to a deferment of the execution of said
judgment against him, until after the properties of the
principal debtor shall have been exhausted, to satisfy
the latters obligation.
EXCEPTIONS TO THE BENEFIT OF EXCUSSION
(2059)
The guarantor is not entitled to the benefit of
excussion:
1. As provided in Art. 2059:
a. If the guarantor has expressly
renounced it Waiver
i. Waiver is valid but it must be made
in express terms.
b. If he has bound himself solidarily with
the debtor liability assumed that of a
surety
i. Guarantor becomes primary liable
as a solidary co-debtor. In effect, he
renounces in the contract itself the
benefit of exhaustion.
c. In case of insolvency of the debtor
guarantor guarantees the solvency of
the debtor
Page 210 of 297
2.
3.
4.
5.
voluntary
appearance does not constitute a
renunciation of his right to excussion.
b. Guaranty does not appear
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b. Two or more
debtors
one debt, even
if they be bound solidarily, each with
different guarantors; or
c. Two or more guarantors of the same
debtor but not only for the same debt
d. If any of the circumstances enumerated
in Art. 2059 should take place, as would
the benefit of exhaustion of the debtors
property.
Exceptional remedies:
2071
(Right of Guarantor to
Reimbursement after
Payment)
(Right of Guarantor to
Proceed against Debtor
even before payment)
Provides
for
the
enforcement of the rights
of the guarantor against
the debtor after he has
paid the debt gives a
right of action after
payment
Provides
for
the
protection before he has
paid but after he has
become liable gives a
protective remedy before
payment
Substantive right
Preliminary remedy
of
several
Payment or performance;
Loss of the thing due;
Condonation or remission of the debt;
Confusion or merger of the rights of the
creditor and debtor;
5. Compensation; and
6. Novation
7. Other causes:
a. Annulment;
b. Rescission;
c. Fulfillment of a resolutory condition;
d. Prescription
Exception: The guaranty itself may be directly
extinguished although the principal obligation still
remains such as in the case of the release of the
guarantor made by the creditor.
Page 214 of 297
TO
GUARANTOR
5.
6.
7.
Reasons:
8.
1. Compensated
corporate
sureties
are
business association organized for the
purpose of assuming classified risks in large
numbers, for profit and on an impersonal
basis.
2. They are secured from all possible loss by
adequate counter-bonds or indemnity
agreements.
3. Such corporations are in fact insurers and in
determining their rights and liabilities, the
rules peculiar to suretyship do not apply.
PLEDGE
Constituted on movables
Property is delivered to
the pledgee, or by
common consent to a 3rd
person
Not valid against 3rd
persons
unless
a
description of the thing
pledged and the date of
the pledge appear in a
public instrument
MORTGAGE
Constituted
on
immovables
Delivery not necessary
Extrajudicial
foreclosure
No court intervention
Not appealable, it is
immediately executory
Foreclosure does not cut
off right of all parties
involved
There
is
right
of
redemption
NOTES
A foreclosure sale retroacts to the date of
registration of the mortgage and that a
person who takes a mortgage in good faith
and for valuable consideration, the record
showing clear title to the mortgagor, will be
protected against equitable claims on the title
in favor of third persons of which he had no
actual or constructive notice (St. Dominic
Corporation v. IAC, 151 SCRA 577 [1987])
Mere inadequacy of the price obtained at the
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price
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so inadequate as
are
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to shock the conscience of the court taking
into consideration the peculiar circumstances
attendant thereto (Sulit v. CA, 268 SCRA
441)
The action to recover a deficiency after
foreclosure prescribes after 10 years from
the time the right of action accrues (Arts
1142 & 1144)
RIGHT
OF
MORTGAGEE
TO
RECOVER
DEFICIENCY
1. Mortgagee is entitled to recover deficiency
Antichresis
Property is delivered to
creditor
Creditor acquires only
the right to receive the
fruits of the property,
hence, it does not
produce a real right
Pledge
Refers to personal
property
Perfected by delivery
of the thing pledged
Real contract
Real Mortgage
Debtor usually retains
possession
of
the
property
Creditor does not have
any right to receive the
fruits, but the mortgage
creates a real right
over the property
Page 223 of 297
There is no such
obligation on part of
mortgagee
Creditor is entitled to
deficiency
from
the
debtor EXCEPT if it is a
security for the purchase
of personal property in
installments
PLEDGE
Involves
movable
property
Delivery of the personal
property is necessary
Registration
is
NOT
necessary for validity
Procedure: Art 2112 of
Civil Code
If the property is sold, the
debtor is not entitled to
the
to
the
excess
UNLESS it is otherwise
agreed or in case of legal
pledge
Creditor is not entitled to
recover
deficiency
notwithstanding
any
stipulation to the contrary
by
RIGHT OF MORTGAGEE TO
RECOVER
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DEFICIENCY
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1. where mortgage foreclosed: creditor may
maintain action for deficiency although
Chattel Mortgage Law is silent on this point.
Reason is chattel mortgage is only given as a
security and not as payment of the debt.
2. where mortgage constituted as security
for purchase of personal property payable
in installments: no deficiency judgment can
Number
creditors
of
VOLUNTARY
INSOLVENCY
One creditor is
sufficient
Who
may
petition the
proceedings
Filed
by
the
insolvent debtor
Acts
of
insolvency
Amount
debt
of
Posting
bond
of
Bond
is
required
not
Ex
parte
adjudication
An
order
of
adjudication
may
be granted ex parte
Residency
duration to
vest
jurisdiction
in courts
Petition is filed in
the RTC of the
province or city
where the debtor
has resided for six
months
Court issues the
order
of
adjudication
declaring
the
petitioner insolvent
upon the filing of
the
voluntary
petition
Requirement
of hearing
INVOLUNTARY
INSOLVENCY
Three or more
creditors
are
required
Filed by three or
more
creditors
who possess the
qualifications
required by law
Debtor must have
committed one or
more of such acts
of insolvency
Amount must not
be
less
than
P1,000.00
(aggregate)
Petition must be
accompanied by a
bond
An
order
of
adjudication
granted only after
a hearing
Length
of
residence
is
immaterial
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ASSIGNEE person
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appointed by he court to whom an insolvent debtor
makes an assignment of all his property for the
benefit of his creditors.
4.
5.
6.
7.
8.
DO
NOT
CONSTITUTE
COMPOSITION
ACCORD
Designates
an
arrangement between a
debtor and the whole body
of his creditors (or at least
a considerable portion of
them) for the liquidation of
their claims by the dividend
offered.
An agreement between
a debtor and a single
creditor for a discharge
of the obligation by a
part payment or on
different terms.
REQUIREMENTS FOR
COMPOSITION (FADA)
VALID
OFFER
OF
TRANSFER
EXISTS
RIGHT OF ASSIGNEE
TO RECOVER
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OR ITS VALUE
The creditors of the insolvent are not authorized to
institute an independent action. In all actions or
proceedings to set aside or nullify fraudulent
preferences or transactions as VOID, the assignee
appears for, and represents the general creditors.
BE
TAKEN
TO
THE
it was held that the said stipulation is null and void for
being contrary to public policy. Prompt notice by the
cardholder to the credit card company of the loss or
theft of his card should be enough to relieve the
former of any liability occasioned by the unauthorized
use of his stolen card.
Under the said stipulation, Acol could have
theoretically done everything in his power to give
respondent the required written notice, but if the bank
took its time to include the card in its Cancellation
Bulletin, it could still hold Acol liable for whatever
unauthorized transaction incurred during such
intervening period. This is iniquitous and against
public policy under Art. 1306 of the Civil Code. The
court then, strikes down the said provision.
FACTS:
Acol procured from respondent a bankard
credit card and an extension, which he used for
several years. One day, he discovered that it was
missing, and so, on the following day, he called up
the card company and made a report; the
representative spoke to him and told him that his card
would be included in the circular of lost cards.
He called again the day thereafter inquiring
as to what else he must do in connection with the
loss. The representative told him that he should put
the report in writing and submit it, together with his
wifes and daughters extension cards. He then
promptly sent the said letter which the company
received 2 days thereafter. Unfortunately, someone
had already used his credit card (with purchases
amounting to P76,067.28 ) on the date that he called
in the loss and the day thereafter. Acol said that he
would not pay for accounts incurred after the date he
reported the loss, and after investigation and review,
the bank, through its EVP and GM, that it was not
Acol who used his card during the dates in question.
Nonetheless, the bank still decided to collect the said
amounts within 15 days from notice, citing the Terms
and Conditions Governing the Issuance of a Bankard,
provision no. 1 [which basically says that the holder
of the card will still be liable in case of loss, until a
written notice of the loss is given to the bank and
such loss be included in the Cancellation Bulletin].
The bank then filed for collection with the RTC. The
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RTC ruled in favor of Acol;
the and
CAa reversed the
TIFF (Uncompressed) decompressor
are needed to see this picture.
same.
ISSUE:
Whether provision no. 1 in the Terms and
Conditions is binding on Acol, considering that the
contract was one of adhesion.
HELD:
Not binding. In Ermitao v. CA, where a
provision identical to the one at hand was contested,
Interests Chargeable
The time Article 1980 provides that a contract
between a bank and a depositor shall be governed by
the provisions on simple loans. Thus, the said time
deposit constitutes a simple loan for which, the
interest rate on the actual damages of $55,216.69
should be in accordance with the guidelines set in
Eastern Shipping Lines v. CA:
[1] Obligation breached is a loan or
forbearance of money : (a) stipulated interest, or (b)
12% from time of demand, if no interest is stated.
[2] If the obligation
is not a loan or a
QuickTime and a
TIFF an
(Uncompressed)
decompressor
forbearance of money,
interest
on the amount of
are needed to see this picture.
damages may be imposed at the discretion of the
court at the rate of 6%. No rate on uniquidated claims
until demand can be established with reasonable
certainty. If demand is certain, it shall run from that
time, if not, from the time of judgment; interest shall
be based on the amount finally adjudged in any case.
[3] Upon finality of the judgment of the court
awarding a sum of money, the legal rate shall be
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