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    The court ruled that a mortgage taken out by a wife on property owned jointly with her husband without his consent was void. However, the subsequent execution of a special power of attorney by the husband perfected the mortgage contract, as the SPA can be considered acceptance retroactively validating the original offer. While the family code requires written consent for encumbrances, it also states transactions without initial consent represent a continuing offer that can be perfected into a binding contract via later acceptance by the other spouse. Therefore, the lower court erred in dismissing the foreclosure case despite the later granted power of attorney.

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    The court ruled that a mortgage taken out by a wife on property owned jointly with her husband without his consent was void. However, the subsequent execution of a special power of attorney by the husband perfected the mortgage contract, as the SPA can be considered acceptance retroactively validating the original offer. While the family code requires written consent for encumbrances, it also states transactions without initial consent represent a continuing offer that can be perfected into a binding contract via later acceptance by the other spouse. Therefore, the lower court erred in dismissing the foreclosure case despite the later granted power of attorney.

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    © All Rights Reserved
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    5 views1 page

    39 Flores Vs Lind

    Uploaded by

    Ceresjudicata
    The court ruled that a mortgage taken out by a wife on property owned jointly with her husband without his consent was void. However, the subsequent execution of a special power of attorney by the husband perfected the mortgage contract, as the SPA can be considered acceptance retroactively validating the original offer. While the family code requires written consent for encumbrances, it also states transactions without initial consent represent a continuing offer that can be perfected into a binding contract via later acceptance by the other spouse. Therefore, the lower court erred in dismissing the foreclosure case despite the later granted power of attorney.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
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    Mortgage of Conjugal Property without Marital Consent is Void (Flores v. Sps.

    Lindo Case Digest)

    G.R. No. 183984, April 13, 2011


    Arturo Sarte Flores v. Sps. Enrico & Edna Lindo

    Mortgage of property within the community or the conjugal partnership is void if done without the
    consent of the other spouse. Nevertheless, the execution of special powers of attorney perfects the
    contract of mortgage. In other words, the SPA cures the defect of the mortgage.

    On the 31st day of October in the year 1995, the woman was able to obtain a loan secured by a Real
    Estate Mortgage over a real proper under her and his husband's name but without the consent of the
    former. Partial payments were made by her through checks but the same were dishonored. As a result,
    the creditor filed a complaint against her for foreclosure of the mortgage with damages.

    The second-level court dismissed the case as the mortgage was, in the eyes of the court a quo, void for
    having been executed without the necessary consent of the husband, despite the SPA executed later by
    the husband for the wife. It must be noted that the SPA was executed only a few days after the wife
    entered into the contract of loan with mortgage.

    The second-level court however ruled that the subsequent execution of the SPA cannot be made to
    retroact to the date of the execution of the real estate mortgage.

    ISSUE:

    Did the court commit any error in dismissing the case for foreclosure against the wife for the mortgage
    entered into without the husband's consent despite the fact that a subsequent SPA was executed in her
    favor?

    RULING:

    Yes, the court acted in error.

    The execution of the SPA can be considered as acceptance of the mortgage by the other spouse that
    perfected the contract or continuing offer.

    Both Article 96 and Article 124 of the Family Code provide that the powers of the administration do not
    include disposition or encumbrance without the written consent of the other spouse. Any disposition or
    encumbrance without the written consent shall be void. However, both provisions also state that “the
    transaction shall be construed as a continuing offer on the part of the consenting spouse and the third
    person, and may be perfected as a binding contract upon the acceptance by the other spouse x x x
    before the offer is withdrawn by either or both offerors.”

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