Professional Documents
Culture Documents
2021 Purples Notes in Commercial Law
2021 Purples Notes in Commercial Law
Honey Joy Belen Vice-Chair for Academics, Kathleen Trine De Lara Vice-Chair for
Administration, Jhoanna Paula Bitor Operations Officer, Michael Angelo Tamayo Secretary,
Rhian Lee Tiangco Treasurer, Shianne Camille Dionisio Auditor, Gillian Albay Public
Relations Officers, Mikyla Cordero Volunteer Core Head, Ayla Monica Cristobal Creative
Director
ACKNOWLEDGEMENT
Justice Antonio E.B. Nachura, Retired
Dean Domingo M. Navarro
Asst. Dean Erik C. Lazo
Atty. Gabriel P. Dela Peña
Atty. Victor Carlo Antonio V. Cayco
Atty. Prime Ramos
Atty. Cris Tenorio
O
Atty. Calai Fabie
center
Atty. Roderick M. Villostas
for Director
legal
Atty. Antony J. Parreño, Atty. Lester Ople
CLEAR education Research Fellows
Table of Contents
Table of Contents
I. INSURANCE................................................................................................. 1
A. Concepts of Insurance ……………………………………………………………………………… 1
B. Elements ………………………………………………………………………………………………… 1
C. Characteristics and Nature of Insurance Contacts ……………………………………….. 2
D. Classes …………………………………………………………………………………………………… 4
E. Variable Contracts ……………………………………………………………………………………. 18
F. Insurable Interest ……………………………………………………………………………………. 18
G. Perfection of the Contract Insurance …………………………………………………………. 23
H. Rescission of Insurance Contracts …………………………………………………………….. 27
I. Claims Settlement and Subrogation ……………………………………………………………. 33
J. Business Insurance; Requirements …………………………………………………………….. 36
K. Insurance Commissioner and it‘s Powers ……………………………………………………. 38
V. SECURITIES……………………………………………………………………………… 178
A. State Policy ……………………………………………………………………………………………… 178
B. Definition of Securities ……………………………………………………………………………… 178
C. Kinds of Securities …………………………………………………………………………………… 178
D. Powers and Functions of the Securities and Exchange Commission ……………… 181
E. Procedure for Registration of Securities …………………………………………………….. 182
F. Prohibitions on Fraud, Manipulation, and Insider Trading ……………………………. 183
G. Protection of Shareholder Interests ………………………………………………………….. 187
Anyone except a public enemy may be insured. 4. Unilateral – It imposes legal duties only
(Sec. 7, Insurance Code) on the insurer who promises to indemnify
in case of loss. It is executed as to the
Public Enemy – a nation with whom the insured after the payment of the premium,
Philippines is at war and it includes every citizen and executory on the part of the insurer in
or subject of such nation. (Filipinas Compania de the sense that it is not executed until
Seguros vs. Christern Huenefeld and Co., G.R. No. L- payment for a loss.
2294, May 25, 1951)
5. Conditional – It is subject to conditions,
2. Beneficiary – a person designated to the principal one of which is the happening
receive proceeds of policy when risk of the event insured against.
attaches.
6. Contract of indemnity – Recovery is
C. CHARACTERISTICS AND NATURE OF commensurate with the amount of the loss
INSURANCE CONTRACT suffered.
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2019, p. 91) 2018
Rules: Void insurance contract stipulations
1. Applies only to property insurance except 1. Stipulations for the payment of loss
when the creditor insures the life of his regardless of whether the person injured
debtor. does or does not have any interest in the
2. Life insurance is not a contract of indemnity subject matter of the insurance. (Sec. 25,
3. Insurance contracts are not wagering Insurance Code)
contracts (Sec. 4, Insurance Code) 2. Stipulation that the policy shall be received
as proof of insurable interest. (Ibid.)
Note: Not wagering contracts because they 3. Policy executed by way of gaming or
are not a contract of chance and they are not wagering. (Ibid.)
used for profit. (Sec. 4, Insurance Code) 4. Stipulations within the proscription of
Article 739 of the New Civil Code.
Wagering Contract vs. Contract of 5. Stipulations against public policy, public
Insurance morals and public order. (Art. 1306, NCC)
1. Over the vessel up to the extent of the The insurance is voidable if:
amount he is liable to be damnified if
the ship is lost or damaged during the 1. False representation is intentional, or
voyage (Sec. 108, Insurance Code) 2. It is not intentional but the fact
2. Over his expected profits or freightage misrepresented is material. (Sec. 113,
if he accepts cargoes from other Insurance Code)
persons for a fee.
3. Over his own cargo or his client‘s cargo. Implied Warranties in Marine Insurance
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Insurer, general and particular loss 2018except
time of the commencement of the risk,
average losses: in the following cases:
2. Partial loss – every loss which is not total Fire insurance, coverage
is partial. (Sec. 130, Insurance Code)
It shall include insurance against loss by fire,
Abandonment, defined: lightning, windstorm, tornado or earthquake
and other allied risks, when such risks are
It is the act of the insured by which, after a covered by extension to fire insurance policies
constructive total loss, he declares the or under separate policies. (Sec. 169, Insurance
relinquishment to the insurer of his interest in Code)
the thing insured. (Sec. 140, Insurance Code)
Risk or loss covered:
Requisites of valid abandonment
1. Direct losses
a. There must be an actual relinquishment by 2. Indirect or Consequential losses:
the person insured of his interest in the
thing insured; a. Physical damages
b. There must be a constructive total loss; b. Loss of Earnings
c. The abandonment be neither partial nor c. Extra Expenses
conditional; (Sec. 142, Insurance Code)
d. It must be made within a reasonable time Prerequisites to recovery:
after the receipt of reliable information of
the loss; (Sec. 143, Insurance Code) 1. Notice of loss - must be immediately
e. It must be factual; (Sec. 144, Insurance Code) given, unless delay is waived expressly or
f. It must be made by giving notice thereof to impliedly by the insurer; (Sec. 90, Insurance
the insurer which may be done orally or in Code) and
writing (Sec. 143, Insurance Code); 2. Proof of loss - according to best evidence
g. The notice of abandonment must be explicit obtainable. Delay may also be waived
and must specify the particular cause of the expressly or impliedly by the insurer. (Sec.
abandonment (Sec. 144, Insurance Code). 91, Insurance Code).
It is equivalent to a transfer by the insured of 1. Open Policy - only the expense necessary
his interest to the insurer with all the chances of to replace the thing lost or injured in the
recovery and indemnity. (Sec. 148, Insurance condition it was at the time of the injury.
Code) 2. Valued Policy - the parties are bound by
the valuation, in the absence of fraud or
Acts done in good faith by those who were mistake.
agents of the insured in respect to the thing
insured, subsequent to the loss, are at the risk
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Marine insurance and fire insurance, 2018 (e.g.
person and/or property of the insured.
compared: Personal accident, robbery/theft insurance).
7. In burglary, robbery and theft insurance, The terms „accident‟ and „accidental‟ as
the opportunity to defraud the insurer- the used in insurance contracts, have not
moral hazard- is so great that insurer have acquired any technical meaning. They are
found it necessary to fill up the policies with construed by the courts in the ordinary and
many restrictions designed to reduce the common acceptation. Thus, the terms have
hazard. Persons frequently excluded are been taken to mean that which happens by
those in the insured‘s service and chance or fortuitously, without intention or
employment. The purpose of the exception design, which is unexpected, unusual, and
is to guard against liability should theft be unforeseen. (Pan Malayan Insurance Corp. vs.
committed by one having unrestricted CA, G.R. No. 81026, April 3, 1990)
access to the property (Fortune Insurance vs.
CA, G.R. No. 115278, May 23, 1995) NO ACTION CLAUSE
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(Great Pacific Life Assurance Corp. vs. Court of Exceptions: 2018
Appeals, G.R. No. 113899, October 13, 1999)
1. Accidental killing;
Effect of death of insured: 2. Self-defense;
3. Insanity of the beneficiary at the time
1. Through suicide: he killed the insured. (De Leon, The
Insurance Code of the Philippines, 2010, p.
The insurer shall be liable for suicide by 107)
the insured if:
Must distinguish when the policy does not
a. Suicide was committed after the policy expressly state whether suicide is
has been in force for a period of two excepted from the policy:
years from the date of its issue or its
last reinstatement, unless the policy 1. If committed while insane – Insurer is liable
provides a shorter period. (Sec. 183, 2. If committed while sane – Insurer not liable
Insurance Code) in the absence of an express stipulation, it
b. Suicide committed in a state of insanity is an implied exception and is against public
regardless of the date of the policy.
commission of the suicide (Sec. 183,
Insurance Code) Cash surrender value, defined:
Any stipulation extending the 2-year period
is null and void. As applied to a life insurance policy, it is the
amount the insured in case of default, after the
2. At the hands of law (i.e., execution by payment of at least 3 full annual premiums, is
lethal injection) entitled to receive if he surrenders the policy
and releases upon it. (Sec. 233[f], Insurance
Code)
It is one of the risks assumed by the insurer
under a life insurance policy in the absence
MICROINSURANCE
of a valid policy exception.
Microinsurance is a financial product or service
The beneficiary of the insured who is
that meets the risk protection needs of the poor
executed for a crime cannot recover from
where:
the insurer for 2 reasons: 1.) his death is
caused through his connivance, and 2.) any
1. The amount of contributions, premiums,
stipulation to render the insurer liable under
fees or charges, computed on a daily basis,
these circumstances would be contrary to
does not exceed seven and a half percent
public policy. (Miravite, Bar Review Materials in
(7.5%) of the current daily minimum wage
Commercial Law, 2009 ed)
rate for nonagricultural workers in Metro
3. Killing by the beneficiary Manila; and
2. The maximum sum of guaranteed benefits
General rule: The interest of a beneficiary is not more than one thousand (1,000)
in a life insurance policy shall be forfeited times of the current daily minimum wage
when the beneficiary is the principal, rate for nonagricultural workers in Metro
accomplice, or accessory in willfully bringing Manila. (Sec. 187, Insurance Code)
about the death of the insured, in which
event, the nearest relative of the insured
shall receive the proceeds of said insurance
if not otherwise disqualified (Sec. 12,
Insurance Code).
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From whom should the injured recover: 2018
ascertain the truth and extent of the claim
and make payment within 5 working days
1. In the case of an occupant of a vehicle, after reaching an agreement. (Sec. 398,
claim shall lie against the insurer of the Insurance Code)
vehicle in which the occupant is riding,
mounting, or dismounting from. d. If no agreement is reached, the
2. If not an occupant, claim shall lie against insurance company shall pay only the ―no
the insurer of the directly offending vehicle. fault‖ indemnity without prejudice to the
3. In all cases, the right of the party paying claimant from pursuing his claim further, in
the claim to recover against the owner of which case, he shall not be required or
the vehicle responsible for the accident shall compelled by the insurance company to
be maintained. (Sundiang and Aquino, execute any quit claim or document
Reviewer on Commercial Law, 2017, p. 146) releasing it from liability under the policy of
insurance or surety bond issued. (Sec. 398,
The claimant is not free to choose from which Insurance Code)
insurer he will claim the "no fault indemnity," as
the law, by using the word "shall‖, makes it Authorized driver clause, defined:
mandatory that the claim be made against the
insurer of the vehicle in which the occupant is It is a clause which aims to indemnify the
riding, mounting or dismounting from. That said insured owner against loss or damage to the car
vehicle might not be the one that caused the but limits the use of the insured vehicle to the
accident is of no moment since the law itself insured himself or any person who drives on his
provides that the party paying may recover order or with his permission (Villacorta vs.
against the owner of the vehicle responsible for Insurance Commissioner, GR No. L-54171, October
28, 1980)
the accident. (Perla Compania de Seguros, Inc. vs.
Ancheta, G.R. No. L-49599, August 8, 1988)
Theft Clause, defined:
This no-fault claim does NOT apply to property
damage. If the total indemnity claim exceeds It is a clause which includes theft as among the
P15, 000 and there is controversy in respect risks insured against. Where a car is unlawfully
thereto, the finding of fault may be availed of and wrongfully taken without the knowledge
by the insurer only as to the excess. The first and consent of the owner, such taking
P15, 000 shall be paid without regard to the constitutes ―theft‖ and it is the theft clause, not
fault. (De Leon, The Insurance Code of the the authorized driver clause which should apply.
Philippines, 2010, p. 712) (Perla Compania de Seguros vs. CA, G.R. No. 96452,
May 7, 1992)
Time to file and process claim under third Cooperation clause, defined:
party liability:
It is a clause which provides in essence that the
a. Period to file notice - within six (6) insured shall give all such information and
months from the date of the accident assistance as the insurer may require, usually
otherwise the claim is deemed waived. (Sec. requiring attendance at trials or hearings.
397, Insurance Code)
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Disqualification designated separate account in which 2018
amounts
received in connection with such contracts shall
Insurance companies who have directors, have been placed and accounted for separately
partners, officers, employees, or agents with and apart from other investments and
relatives within the fourth civil degree of accounts. (Sec. 238 [b], Insurance Code)
consanguinity or affinity who work or have
interest in any of the licensed F. INSURABLE INTEREST
recruitment/manning agencies or in any of the
government agencies involved in the overseas Insurable interest, defined:
employment program shall be disqualified from
providing the migrant worker‘s insurance An insurable interest is that interest which a
coverage. It shall be the duty of the said person is deemed to have in the subject matter
directors, partners, officers, employees or insured, where he has a relation or connection
agents to disclose any such interest to the IC with or concern in it, such that the person will
and POEA. derive pecuniary benefit or advantage from the
preservation of the subject matter insured and
Such insurance policy shall be effective for the will suffer pecuniary loss or damage from its
duration of the migrant worker‘s employment destruction, termination, or injury by the
contract, and shall cover, at the minimum the happening of the event insured against. (Violeta
benefits mentioned. R. Lalican vs. The Insular Life Assurance Company
Limited, G.R. No. 183526, August 25, 2009)
The incontestable and suicide clauses under the
Insurance Code shall not apply to compulsory NOTE: The existence of insurable interest is a
life insurance coverage under the Act. matter of public policy and is not susceptible to
the principle of estoppel. The existence of an
In case of doubt, the provisions of the policy insurable interest gives a person the legal right
shall be interpreted liberally in favor of the to insure the subject matter of the policy of
migrant workers and in accordance with the insurance. (Ibid.)
intent of the Act and its Omnibus Rules and
Section 2 of the Insurance Guidelines on Rule Reason for the requirement of insurable
XVI of the Omnibus Rules and Regulations interest:
Implementing R.A. 8042, as amended by R.A.
10022. 1. To avoid wagering policy (Sec. 4, Insurance
Code) - As deterrence to the insured, the
E. VARIABLE CONTRACT requirement of an insurable interest to
support a contract of insurance is based
It is any policy or contract on either a group or upon considerations of public policy which
on an individual basis issued by an insurance render wager policies invalid. A wager policy
company providing for benefits or other is obviously contrary to public interest.
contractual payments or values thereunder to 2. To measure the limit of recovery- if and to
vary so as to reflect investment results of any the extent that any particular insurance
segregated portfolio of investments or of a contract is a extent that any particular.
insurance contract is a contract to pay loss by the happening of the misfortune insured
indemnity, the insurable interest of the insured against. (De Leon, The Insurance Code of the
will be the measure of the upper limit of his Philippines, 2010, p. 129)
provable loss under the contract.
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Example: A stockholder has an inchoate interest proceeds only after the payment 2018of the
in the property of the corporation of which he is corporation‘s debts. The stockholder or the
a stockholder, which is founded on an existing partner must prove actual injury, otherwise
interest arising from his ownership of shares in cannot recover more than the nominal damages.
the corporation. (De Leon, The Insurance Code of (De Leon, The Insurance Code of the Philippines,
the Philippines, 2010, p. 112) 2010, p. 112)
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the existence of other insurance on the same Multiple or several interests in2018 the same
property when required to do so constitutes property:
deception and it could be inferred that had the This relates to the special rules on mortgagors
insurer known that there were many other and mortgagees in the Insurance Code.
insurance policies on the same property, it could
have hesitated or plainly desisted from entering Insurable Interest of Mortgagor and
into such contract. (Perez, 2006) Mortgagee over the Mortgaged Property
Upon discovery of other insurance coverage that Reason: the loss or destruction of the
makes the total insurance in excess of the value property insured will not extinguish the
of the property insured, the insurer may cancel mortgage property.
such policy of insurance; provided there is prior
notice and such circumstance occurred after the 2. Mortgagee – can insure the mortgaged
effective date of the policy. (Sec. 64, Insurance property only to the extent of the amount of
Code) his credit.
Instances where more than one insurable Each has an insurable interest in the property
interest may exist in the same property mortgaged and this interest is separate and
distinct from the other. Therefore, insurance
1. In trust, both trustor and trustee have taken by one in his name only and in his favor
insurable interest over the property in trust. alone does not inure to the benefit of the other.
2. In a corporation, both the corporation and The same is not open to objection that there is
its stockholders have insurable interest over double insurance. (RCBC vs. CA, 289 G.R. Nos.
the assets. 128833-34, 128866, April 20, 1998)
3. In partnership both the firm and partners
have insurable interest over its assets. Standard / Union Mortgage Clause
4. In assignment both the assignor and
assignee have insurable interest over the It creates the relation of insured and insurer
property assigned. between the mortgagee and the insurer
5. In lease, the lessor, lessee and sub‐ lessees independent of the contract with the mortgagor.
have insurable interest over the property in Hence, subsequent acts of the mortgagor
lease. cannot affect the rights of the assignee. (Sec. 9,
6. In mortgage, both the mortgagor and Insurance Code)
mortgagee have insurable interest over the
property mortgaged. Open / Loss Payable Mortgage Clause
1. Insurance is still deemed to be upon the The contract of insurance is perfected when the
interest of the mortgagor who does not assent or consent is manifested by the meeting
cease to be a party to the original contract. of the offer and the acceptance upon the thing
If the policy is cancelled, notice is still given and the cause which are to constitute the
to the mortgagee; contract. Mere offer or proposal is not
2. Any act of the mortgagor, prior to the loss, contemplated.
which would otherwise avoid the insurance
will have the same effect although the The offer must be certain and the acceptance
property is in the hands of the mortgagee; absolute. A qualified acceptance constitutes a
3. Any act which, under the insurance contract, counter-offer. (Art.1319, NCC)
is to be performed by the mortgagor, may
be performed by the mortgagee with the Reason: It is Cognitive Theory that is being
same effect as if it had been performed by applied under the New Civil Code, thus, an
the mortgagor; insurance contract is perfected the moment the
4. Upon occurrence of the loss, mortgagee is offeror learns of the acceptance of his offer by
entitled to recover to the extent of his credit the other party.
and the balance, if any, is payable to the
mortgagor; Binding receipt, defined:
5. Upon recovery by the mortgagee to the
extent of his credit from the insurer, the It is a mere acknowledgment on behalf of the
mortgagor is released from his company that its branch office had received
indebtedness. (Sec. 8, Insurance Code) from the applicant the insurance premium and
had accepted the application subject to
Note. If an insurer assents to the transfer of processing by the head office.
an insurance from a mortgagor to a mortgagee,
and, at the time of his assent, imposes further Offer and acceptance in property and
obligation on the assignee, making a new liability insurance:
contract with him, the act of the mortgagor
cannot affect the rights of said assignee. (Sec. 9, It is the insured who makes an offer to the
Insurance Code) insurer, who accepts the offer, rejects it, or
makes a counter-offer. The offer is usually
accepted by an insurance agent on behalf of the
insurer. (De Leon, The Insurance Code of the
Philippines, 2010, p. 178)
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Offer and acceptance in Life and health Delivery of policy, defined: 2018
insurance:
The act of putting the insurance policy – the
If insured does not pay premium with the physical document – into the possession of the
application – application is considered an insured.
invitation to insurer to make an offer.
If insured pays premium with the application Delivery of the policy is not necessary in the
– application is considered an offer. (Ibid.) formation of the contract of insurance since the
contract of insurance is consensual. The delivery
When is there an acceptance? of policy is necessary to make the policy
binding. (Sundiang & Aquino, Reviewer on
Where the application for insurance constitutes Commercial Law 2019, p. 95)
an offer by the insured, a policy issued strictly in
accordance with the offer is an acceptance of Two Types of Delivery:
the offer that perfects the contract. (De Leon,
The Insurance Code of the Philippines, 2010, p. 179) 1. Actual - delivery to the person of the insured.
Premium payment, insurer entitled to it: In contract of Insurance the consideration is the
premium, which must be paid at the time in the
An insurer is entitled to payment of the premium way and manner specified in the policy. If not so
as soon as the thing insured is exposed to the paid, the policy will lapse and be forfeited by its
peril insured against. Notwithstanding any own terms. (Gaisano vs. Development Insurance
agreement to the contrary, no policy or contract and Surety Corporation, G.R. No. 190702, February
of insurance issued by an insurance company is 27, 2017)
valid and binding unless and until the premium
Effect of Non-Payment:
thereof has been paid, except in the case of a
life or an industrial life policy whenever the
General Rule: The obligation of the insurer will
grace period provision applies. (Sec. 77, Insurance
not become valid and binding if the first
Code)
premium has not been paid.
Acknowledgment in the policy, conclusive
evidence of its payment: Exceptions:
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Purple Notes
Mercantile Law
justification a valid tender of premiums. 2018in the
for a period shorter than the period
(Gonzales vs. Asia Life Ins. Co., G.R. No. L-5188, original contract.
Oct. 29, 1952)
2. Failure to pay was due to the wrongful Paid up insurance:
conduct of the insurer.
3. The insurer has waived his right to demand No more payments are required, and consist of
payment (Sec. 79, Insurance Code) insurance for life in such an amount as the sum
available therefore, considered as a single and
When payment of premium becomes a final premium, will purchase. It results to a
debt or obligation reduction of the original amount of insurance
but for the same period originally stipulated.
1. In fire, casualty and marine insurance, the
premium payable becomes a debt as soon as Automatic loan clause:
the risk attaches.
2. In life insurance, the premium becomes a A stipulation in the policy providing that upon
debt only when, in the case of the first default in payment of premium, the same shall
premium, the contract has become binding, be paid from the loan value of the policy until
and in the case of subsequent premiums, that value is consumed. In such a case, the
when the insurer has continued the policy is continued in force as fully and
insurance after maturity. (De Leon, The effectively as though the premiums had been
Insurance Code of the Philippines, 2010, p.246) paid by the insured from funds derived from
other sources. (Aquino, Essentials of Insurance Law,
Non-Default Options In Life Insurance 2018, p. 125)
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Mercantile Law
prove the falsity of a warranty and such The basis of the rule vitiating the2018 contract in
omission is both intentional and case of concealment is that it misleads or
fraudulent. (Sec. 29, Insurance Code) deceives the insurer into accepting the risk, or
accepting it at the rate of premiums agreed
NOTE: The right to rescind should be exercised upon. The insurer, relying upon the belief that
previous to the commencement of an action on the assured will disclose every material within
the contract. (Sec. 48, Insurance Code) his actual or presumed knowledge, is misled into
a belief that the circumstances withheld does
Test of materiality of facts: not exist, and he is thereby induced to estimate
the risk upon a false basis that it does not exist.
Materiality is determined not by the event, but The principal question, therefore, must be: Was
solely by the probable and reasonable influence the assurer misled or deceived into entering a
of the facts upon the party to whom the contract obligation or in fixing the premium of
communication is due, in forming his estimate of insurance by a withholding of material
the disadvantages of the proposed contract or in information of facts within the assured‘s
making his inquiries or in fixing the premium knowledge or presumed knowledge? (Bernardo
rate.(Sec. 31, Insurance Code) Argente vs. West Coast Life Insurance, Inc., G.R. No.
L-24899, March 19, 1928)
In relation to the insured, the matters he
concealed are considered material if such The transfer of location of the insured
matters will affect the insurer‘s action on his machineries was considered material
application, either by approving it with the concealment that should have been disclosed
corresponding adjustment for a higher when the fire insurance policy was renewed.
premium or rejecting the same or in fixing The unconsented removal of the machineries to
the terms and conditions of the policy. another location made the said machineries at
(Aquino, Essentials of Insurance Law, 2018, p. the insured company‘s own risk. (Malayan
179) Insurance vs. PAP Co. Ltd., G.R. No. 200784, August
7, 2013)
In relation to the insurer, the matters
concealed are considered material if they The matter concealed need not be the cause of
will affect the decision of the insured to the loss. (Aquino, Essentials of Insurance Law, 2018,
enter into the insurance contract.(Ibid.) p. 182)
The matter concealed by the insured is The insured need not die of the disease if he
considered material if it relates to physical had failed to disclose to the insurer the
hazard or moral hazard. Hazard affects the existence of such disease. It is sufficient that his
estimate of the disadvantages of the non-disclosure misled the insurer in forming his
proposed contract. If the insurer knows estimates of the risks of the proposed insurance
about the circumstances relating to physical policy or in making inquiries. (Sun Assurance
or moral hazard, it will give a chance to the Company of Canada vs. The Hon. Court of Appeals
insurer to make further inquiries and to and Sps. Rolando and Bernarda Bacani G.R. No.
105135, June 22, 1995)
decide on the basis of such inquiry. (Aquino,
2014)
The test of materiality is the effect which Knowledge on the part of the agent of the
the knowledge of the fact in question would insured can be imputed to the insured himself
have on the making of the contract. It need only if the following circumstances are present:
not increase the risk or contribute to any
loss or damage suffered. It is sufficient if 1. It was the duty of the agent to acquire and
the knowledge of it would influence the communicate information of the facts in
parties in making the contract. (Aquino, question
Essentials of Insurance Law, 2018, p. 179) 2. It was possible for the agent, in the
exercise of reasonable diligence, to have
made such communication before the
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deceive, or which he states positively as true 2018 the
Note: When there is collusion between
without knowing it to be true and which has a insurer‘s agent and the insured, it, in effect,
tendency to mislead, and (3) where such fact in vitiates the policy even though the agent is
either case is material to the risk. (De Leon, The acting within the apparent scope of his
Insurance Code of the Philippines, 2010, p. 150) authority. The agent ceases to represent his
principal and thus, represents himself.
Requisites of false representation: Therefore, the insurer is not estopped from
avoiding the policy.
1. Insured stated a fact which is untrue;
2. Such fact was stated with knowledge that it Concealment and Representation,
is untrue and with intent to deceive or which compared:
he states positively as true without knowing
it to be true and which has a tendency to CONCEALMENT REPRESENTATION
mislead; It involves an It involves a positive
3. Such fact in either case is material to the omission – assertion or affirmation.
risk. (Ibid.) nondisclosure.
The insured withholds The insured makes
Characteristics of misrepresentation: information of erroneous statements of
material facts from facts with the intent of
1. It is not a part of the contract but merely a the insurer. inducing the insurer to
enter into the insurance
collateral inducement to it;
contract.
2. It may be oral or written; Concealment cannot Representation can
3. It is made at the time of, or before issuing refer to future acts. pertain to the future
the policy and not after; because it can be
4. It may be altered or withdrawn before the promissory.
insurance is affected but not afterwards; Same test of Same test of materiality
5. It always refers to the date the contract materiality applies. applies
goes into effect. A party can rescind. A party can rescind.
31
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Purple Notes
Mercantile Law
BREACH OF WARRANTIES 20182017, p.
Aquino, Reviewer on Commercial Law,
214)
Breach of warranties as ground to rescind:
A warranty may relate to the past, the
The violation of a material warranty or other present, the future or to any or all of
material provision of a policy, on the part of these (Sec. 68, Insurance Code)
either party thereto, entitles the other to In case of promissory warranty, it refers
rescind. (Sec. 74, Insurance Code) only to future events. (Sec. 73, Insurance
Code)
Breach of warranty without fraud: No particular form of words is necessary
to create a warranty (Sec. 69, Insurance
A breach of warranty without fraud merely Code)
exonerates an insurer from the time that it Warranty is presumed affirmative,
occurs, or where it is broken in its inception, unless the contrary intention applies.
prevents the policy from attaching to the risk. (De Leon, The Insurance Code of the
(Sec. 76, Insurance Code) Philippines, 2010, p. 222)
or non-fulfillment. The same may be expressed, a. Loss occurs before the time of
implied, affirmative or promissory. (De Leon, The performance of the warranty;
Insurance Code of the Philippines, 2010, p. 221).
b. The performance becomes unlawful;
Kinds of warranties: c. Performance becomes impossible. (Sec.
73, Insurance Code)
1. Express – agreement contained in the
2. Immaterial Provisions
policy or clearly incorporated therein as part
thereof
General rule: It will not avoid the policy.
(Sec. 75, Insurance Code)
a. Must either be contained in the policy
itself; or Exception: When the parties stipulate that
b. expressed in another instrument violation of particular provisions, though
provided that the separate instrument is normally immaterial, shall avoid the policy.
signed by the insured and referred to in In effect, the parties converted the
the policy. immaterial provision in to a material one.
(Ibid.)
2. Implied - warranties that are deemed
included in the contract, although not Warranty vs. Representation
expressly mentioned. They are found only
in marine insurance. WARRANTY REPRESENTATION
3. Affirmative - asserts the existence of a fact Part of the contract. Collateral inducement.
or condition at the time it is made. Written on the policy or Need not be written.
4. Promissory - the insured stipulates that in a valid rider or
certain facts or conditions shall exist or a attachment.
thing shall be done or omitted. (Sundiang &
33
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Purple Notes
Mercantile Law
Purposes of proof of loss: Effect of fraudulent claim: 2018
1. To give the insurer information by which he The parties may agree that filing of fraudulent
may determine the extent of his liability. claim ay exonerate the insurer from liability. This
2. To afford the insurer a means of detecting is different from an honest mistake or error.
any fraud that may have been practiced
upon him. The most liberal human judgment cannot
3. To operate as a check upon extravagant attribute such difference to mere innocent error
claims. (De Leon, The Insurance Code of the in estimating or counting but to a deliberate
Philippines, 2010, p. 293) intention to demand from insurance companies‘
payment for indemnity of goods not existing at
Instances when the defects in the notice the time of fire. This constitutes the so-called
or proof of loss are considered waived: ―fraudulent claim: which, by express agreement,
between the insurers and the insured, is a
When the Insurer: ground for the exemption of insurers from civil
liability. (United Merchants Corp. vs. Country Bankers
1. Writes to the insured that he considers the Insurance Inc., G.R. No. 198588, July 11, 2012.)
policy null and void as the furnishing of
notice or proof of loss would be useless; Guidelines on claims settlement
2. Recognizes his liability to pay the claim;
3. Denies all liability under the policy; Claim Settlement, defined:
4. Joins in the proceedings for determining the
amount of the loss by arbitration, making no It is an indemnification for the loss suffered by
objections on account of notice and the insured. The claimant may be the insured or
preliminary proof; or reinsured, the insurer who is entitled to
5. Makes objection on any ground other than subrogation, or a third party who has a claim
the formal defect in the preliminary proof. against the insured. (De Leon, The Insurance Code
of the Philippines, 2010, p. 565)
All defects in a notice of loss, or in preliminary
proof thereof, which the insured might remedy, As a rule, no insurance company doing business
and which the insurer omits to specify to him, in the Philippines shall refuse, without justifiable
without unnecessary delay, as grounds of cause, to pay or settle claims arising under
objection, are waived. (Sec. 92, Insurance Code) coverage provided by its policies, nor shall any
such company engage in unfair claim settlement
Delay in the presentation to an insurer of notice practices. (Sec. 247 [a], Insurance Code)
or proof of loss is waived if caused by any act of
him, or if he omits to take objection promptly
and specifically upon that ground. (Sec. 93, Evidence as to numbers and types of valid and
Insurance Code) justifiable complaints to the Commissioner
against an insurance company, and the
If the policy requires, by way of preliminary Commissioner‘s complaint experience with other
proof of loss, the certificate or testimony of a insurance companies writing similar lines of
person other than the insured, it is sufficient for insurance shall be admissible in evidence in an
the insured to use reasonable diligence to administrative or judicial proceeding brought
procure it, and in case of the refusal of such under this section. (Sec. 247 [b], Insurance Code)
person to give it, then to furnish reasonable
evidence to the insurer that such refusal was not Effects of delay:
induced by any just grounds of disbelief in the
facts necessary to be certified or testified. (Sec. If the prescribed period for both life and
94, Insurance Code) property insurance are not complied with, the
beneficiary is entitled to payment of:
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Purple Notes
Mercantile Law
4. The indemnity is covered by the face value 3. 2018 and
Obtained certificate of authority
of the policy. (Aquino, Essentials of Insurance payment of the fees prescribed; and
Law, 2018, p. 266) (Sec. 193, Insurance Code)
4. Filing of necessary documents to the
Purposes of subrogation: Commissioner. (Ibid.)
1. To make the person who caused the loss Capital and assets required
legally responsible for it;
2. To prevent the insured from receiving No corporation, partnership, or association of
double recovery from the wrongdoer and persons shall transact any insurance business in
the insurer; and the Philippines except as agent of a corporation,
3. To prevent the tortfeasors from being free partnership or association authorized to do the
from liability and is thus founded on business of insurance in the Philippines, unless
consideration of public policy. possessed of the capital and assets
required of an insurance corporation doing the
When the right of subrogation is same kind of business in the Philippines and
inapplicable: invested in the same manner. (Sec. 192,
Insurance Code)
1. Where the insured by his own act releases
the wrongdoer/third person liable for the Life or non-life Insurance Companies
loss. Minimum Capital/Assets requirement
2. Where the insurer pays the insured for a
loss or risk not covered by the policy. Requirement Amount
3. In life insurance because the value of Paid-up Capital P 1,000,000,000
human life is regarded as unlimited and no Net Worth:
recovery from a third party can be deemed by June 30, 2013 P 250,000,000
adequate to compensate the insured‘s by December 31, 2016 P 550,000,000
by December 31, 2019 P 900,000,000
beneficiary.
by December 31, 2022 P 1,300,000,000
4. For the recovery of loss in excess of
insurance coverage. (Aquino, Essentials of
Insurance Law, 2018, p. 266)
The Commissioner may, as a pre-licensing
requirement of a new insurance company, in
J.BUSINESS OF INSURANCE addition to the paid-up capital stock, require the
stockholders to pay in cash to the company in
The term insurer or insurance company shall proportion to their subscription interests a
include all partnerships, associations, contributed surplus fund of not less than One
cooperatives or corporations, including hundred million pesos (P100,000,000.00). (Sec.
194, Insurance Code)
government-owned or -controlled corporations
or entities, engaged as principals in the
In case of mutual company, in lieu of such net
insurance business, excepting mutual benefit
worth, it must have available total members
associations. (Sec. 190, Insurance Code)
equity in an amount to be determined by the
Insurance Commission above all liabilities for
Requirements to operate:
losses reported; expenses, taxes, legal reserve,
and reinsurance of all outstanding risks, and the
1. It must possess the capital and assets
contributed surplus fund equal to the amounts
required of an insurance corporation doing
required of stock corporations. (Ibid.)
the same kind of business in the Philippines
and invested in the same manner; (Sec.
192, Insurance Code) In case of reinsurance companies, they must
2. Obtained a certificate from the have a capitalization of at least Three billion
Commissioner that it has complied with the pesos (P3,000,000,000.00) paid in cash of which
provisions of the Insurance Code; (Ibid.) at least fifty percent (50%) is paid-up and the
39
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Purple Notes
Mercantile Law
3) the alteration is without the consent of the 2018 the
Q: X is an owner of a ship and insured
insurer; vessel with Y, an insurance company.
4) the alteration is made by means within the While the policy was in force, the
insured's control; and vessel was caught on fire. Y gave three
5) the alteration increases the risk of loss? million pesos to X as loan but the loan
(Malayan Insurance Company Inc. vs. Pap Co. contract stipulated that the amount is
Ltd., G.R. No. 200784, August 07, 2013) payable only to the extent of any
amount which X may recover from the
Q: In exercising the right of subrogation, such loss. Y asked for refund of the
is it necessary that the third person, to three million alleging that X made a
whom the insurer is demanding concealment. Y further contended that
reimbursement after paying the proceeds the amount is a loan and not the
to the insured, be privy of the contract payment of insurance proceeds. X
between the insurer and the insured? argued that Y has the burden of
proving that there‟s breach of an
A: No. When the insurance company pays for insurance policy provision.
the loss, such payment operates as an equitable
assignment to the insurer of the property and all 1. Who has the burden of proving the
existence of breach of an insurance
remedies which the insured may have for the policy provision?
recovery thereof. That right is not dependent 2. Is the loan contract in the nature of
upon, nor does it grow out of any privity of an advance claim for the insurance
contract or upon written assignment of claim, proceed or is it really a loan.
and payment to the insured makes the insurer
assignee in equity. (Malayan Insurance Co., Inc. vs. A:
Court of Appeals, G.R. No. L-36413, September 26, 1. Y has the burden of proving the breach. In
1988)
our rules on evidence, X, the plaintiff,
Q: What are the exceptions to the rule on necessarily has the burden of proof to show
subrogation? proof of loss, and the coverage thereof, in
the subject insurance policy. However, in the
A: course of trial in a civil case, once plaintiff
1. If the assured by his own act releases the makes out a prima facie case in his favor, the
wrongdoer or third party liable for the loss duty or the burden of evidence shifts to
or damage, from liability, the insurer's right defendant to controvert plaintiff‘s prima facie
of subrogation is defeated; case, otherwise, a verdict must be returned
2. Where the insurer pays the assured the in favor of plaintiff.
value of the lost goods without notifying
the carrier who has in good faith settled the 2. Notwithstanding its designation, the tenor of
assured's claim for loss, the settlement is the "Loan and Trust Receipt" evidences that
binding on both the assured and the the real nature of the transaction between
insurer, and the latter cannot bring an the parties was that the amount of
action against the carrier on his right of P3,000,000.00 was not intended as a loan
subrogation; whereby X is obligated to pay Y, but rather,
3. Where the insurer pays the assured for a the same was a partial payment or an
loss which is not a risk covered by the advance on the policy of the claims due to X.
policy, thereby effecting "voluntary The obligation of X to repay Y is highly
payment", the former has no right of speculative and contingent, i.e., only in the
subrogation against the third party liable event and to the extent that any net recovery
for the loss. (Pan Malayan Insurance is made by X from any person on account of
Corporation vs. Court of Appeals, Fabie, G.R. loss occasioned by the fire. The transaction,
No. 81026, April 3, 1990) therefore, was made to X, such that, if no
recovery from third parties is made, Y cannot
41
Bar Operations C ommissions 41
Purple Notes
Mercantile Law
Q: The Insurance Code provides that every 2018liability
of garnishment of the third-party
domestic insurance company shall insurance policy it had issued in favor of
invest its funds only in securities and judgment debtor, which is the insured. (Perla
that such investments shall at all times Compania de Seguros vs. Ramolete, G.R. No. L-
be maintained free from any lien or 60887, November 13, 1991)
encumbrance and that such securities
shall be deposited with and held by the II. PRE-NEED
Commissioner for the faithful
performance by the depositing insurer (R. A. No 9829: Pre-Need Code of the
of all its obligations under its insurance Philippines)
contracts.
R. A. No 9829 or otherwise known as Pre-Need
May a single claimant ask for Code of the Philippines, hereon PNC, became
garnishment of said security deposit or effective on January 2, 2010. Pre-need plans are
contingency fund in case the insurance previously governed by the Securities
company is unable to pay his claim? Regulations Code.
A: No. The securities are held as a contingency A.Pre-need plan, defined
fund to answer for the claims against the
insurance company by all its policy holders It is a contract, agreement, deed or plan for the
and their beneficiaries. This step is taken in benefit of the planholders which provide for the
the event that the company becomes performance of a future service/s, payment of
insolvent or otherwise unable to satisfy the monetary considerations or delivery of other
claims against it. Thus, a single claimant may benefits at the time of actual need or agreed
not lay stake on the securities to the maturity date, as specified therein, in exchange
exclusion of all others. The other parties may for cash or installment amounts with or without
have their own claims against the insurance interest or insurance coverage and includes life,
company under other insurance contracts it pension, education, interment and other plans,
has entered into. (Republic of the Philippines vs. instruments, contracts or deeds as may in the
Del Monte Motors, Inc., G.R. No. 156956, October
future be determined by the Commission. (Sec. 4
9, 2006)
[b], PNC)
Q: May the insurer be ordered to pay the A pre-need plan covers a specific need of the
proceeds of an insurance policy with plan holder in the future, for which he invests to
third party liability by issuing writ of cover such, saving ―pre-need‖ or before the
garnishment considering that the need.
insurer was not made a party in the civil
case and said insurer was not served Parties
with summons?
1. Pre-need company;
A: Yes. Through service of the writ of 2. Planholder;
garnishment, the garnishee becomes a 3. Beneficiary.
"virtual party" to, or a "forced intervenor" in,
the case and the trial court thereby acquires Pre-need company - refers to any corporation
jurisdiction to bind him to compliance with registered with the Commission and
all orders and processes of the trial court authorized/licensed to sell or offer to sell pre-
with a view to the complete satisfaction of need plans. The term "pre-need company" also
the judgment of the court. refers to schools, memorial chapels, banks,
nonbank financial institutions and other entities
There can be no doubt, therefore, that the which have also been authorized/licensed to sell
trial court actually acquired jurisdiction over or offer to sell pre-need plans insofar as their
the insurer when it was served with the writ
Termination may be done at the instance of In the case of contingent benefit plans, pre-
either the planholder or the pre-need company. need company shall pay the benefits 30 days
upon submission of all necessary documents.
Planholder Pre-Need Company (Sec. 26, PNC).
Matter of right Always subject to
Any time by giving the consent of the Delay in the payment
written notice to the planholder (Aquino,
issuer Essentials of
Corresponding right Insurance Law, If found to have unreasonably denied or
to demand the 2018, p. 503) withheld the claim, the pre-need company shall
termination value* of be held liable to pay damages, consisting of:
the plan
1. Actual damages
Note: Termination value shall be pre- 2. Attorney‘s fees
determined by the actuary of the pre-need 3. Legal interest (Sec. 28, PNC)
company upon application for registration of the
pre-need plans with the Insurance Commission. In case of scheduled benefits plan, refusal or
The same shall be disclosed in the contract. (Sec. failure to pay the claim within 15 days from
24, PNC; Sec. 26, Rule 6, IRR) maturity or due date will entitle the beneficiary
to collect interest on the proceeds of the plan
45
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Purple Notes
Mercantile Law
III. TRANSPORTATION LAW 2018making
2. Article 1732 also carefully avoids
any distinction between a person or
A. COMMON CARRIERS enterprise offering transportation service on
a regular or scheduled basis and one
Common carriers, defined: offering such service on an occasional,
episodic or unscheduled basis. (Ibid.)
Common carriers are persons, corporations, 3. Article 1732 does not distinguish between a
firms or associations engaged in the business of carrier offering its services to the ―general
carrying or transporting passengers or goods or public,‖ and one who offers services or
both, by land, water, or air, for compensation, solicits its business only from a narrow
offering their services to the public. (Art. 1732, segment of the general population. (Ibid.)
New Civil Code [NCC]) 4. A person or entity is a common carrier and
has the obligations of the common carrier
Requisites: under the Civil Code even if he did not
secure a Certificate of Public Convenience.
1. Must be a person, corporation, firm, or (Ibid.)
association; 5. The Civil Code makes no distinction as to
2. Engaged in the business of carrying or the means of transporting, as long as it is by
transporting passengers or goods or both; land, water or air. (First Philippine Industrial
3. The carriage or transport must either be by Corporation vs. CA, G.R. no. 125948, December
29, 1998)
land, water, or air;
4. The service is for a fee; 6. The Civil Code does not provide that the
5. The service is offered to the public. (Aquino transportation should be by motor vehicle.
(Ibid.)
& Hernando, Essentials of Transportation and
Public Utilities Law, 2016, p. 22) 7. A person or entity may be a common carrier
even if he has no fixed and publicly known
Test for determining whether one is a route, maintains no terminals, and issues no
common carrier: tickets. (Asia Lighterage and Shipping, Inc. vs.
CA, G.R. No. 147246, August 19, 2003)
The true test for a common carrier is not the 8. A person or entity need not be engaged in
quantity or extent of the business actually the business of public transportation for the
transacted, or the number and character of the provisions of the Civil Code on common
conveyances used in the activity, but whether carriers to apply to them. (Fabre, Jr. vs. CA,
G.R. No. 111127, July 26, 1996)
the undertaking is a part of the activity engaged
9. The carrier can also be a common carrier
in by the carrier that he has held out to the
even if the operator does not own the
general public as his business or occupation.
vehicle or vessel that he or she operates
The question must be determined by the
(Cebu Salvage Corporation vs. Philippine. Home
character of the business actually carried on by Assurance Corp., G.R. No. 150403, January 25,
the carrier, not by any secret intention or mental 2007) (Aquino & Hernando, Essentials of
reservation it may entertain or assert when Transportation and Public Utilities Law, 2016, p.
charged with the duties and obligations that the 14)
law imposes. (Sps. Perena vs. Sps. Zarate, G.R. No.
157917, August 29, 2012) Governing Laws
47
Bar Operations C ommissions 47
Purple Notes
Mercantile Law
Common carrier and private carrier, 2018 First
Chartering and Shipping N.V. vs. Philippine
distinguished: Insurance Co., Inc., G.R. No. 143133, June 5, 2002)
Common Carrier Private Carrier It is that extreme measure of care and caution
As to passengers which persons of unusual prudence and
Holds himself out for all Contracts with particular circumspection observe for securing and
people indiscriminately. individuals or groups preserving their own property or rights.
only. (Loadmasters Customs Services, Inc., vs. Glodel
As to required diligence Brokerage Corp., G.R. No. 179446, January 10, 2011)
Requires extraordinary Requires only ordinary Extraordinary diligence in carriage of
diligence. diligence. goods:
As to state regulation
Subject to regulation. Not subject to regulation. The extraordinary diligence over the goods
As to stipulation on limiting liability tendered for the shipment requires the common
Parties may not agree Parties may agree on
carrier to know and follow the required
on limiting the carrier‘s limiting the carrier‘s
liability except when liability, provided not
precaution for avoiding damage to, or
provided by law. contrary to law, morals or destruction of the goods entrusted to it for sale,
good customs. carriage and delivery. It requires common
Presumption as to fault and negligence carriers to render service with the greatest skill
Presumption of fault or No fault or negligence is and foresight and to ―use all reasonable means
negligence applies. presumed. to ascertain the nature and characteristic of
As to laws applicable on damages goods tendered for shipment, and to exercise
Law on common Law on obligations and due care in handling the stowage, including such
carriers. contracts. methods as their nature requires.‖ (Calvo vs.
(Sundiang & Aquino, Reviewer on Commercial Law, UPCB, G.R. No. 148496, March 19, 2002)
2017, p. 453)
Extraordinary diligence in carriage of
DILIGENCE REQUIRED OF COMMON passenger:
CARRIERS
A common carrier is bound to carry the
Common carriers, from the nature of their passenger as far as human care and foresight
business and for reasons of public policy, are can provide, using the utmost diligence of very
bound to observe extraordinary diligence on cautious persons, with a due regard for all
the vigilance over goods and for the safety of circumstances. (Art. 1755, NCC)
the passengers transported by them according
to all the circumstances of each case. (Art. 1733, Due diligence in the selection and
NCC)
supervision of employees:
Extraordinary diligence, defined:
In case of loss of effects of passengers or death
or injuries to passengers, the liability of the
Common carriers, from the nature of their
common carrier does NOT cease upon proof that
business and for reasons of public policy, are
they exercised all the diligence of a good father
bound to observe extraordinary diligence and
of the family in the selection and supervision of
vigilance with respect to the safety of the goods
their employees. (Art. 1759, NCC).
and the passengers they transport. Thus,
common carriers are required to render service
with the greatest skill and foresight and to use LIABILITIES OF COMMON CARRIERS:
all reasonable means to ascertain the nature
and characteristics of the goods tendered for 1. Culpa contractual – In the contract of
shipment, and to exercise due care in the carriage of passengers, it is the obligation of
handling and stowage, including such methods carrier to convey the passengers safely to
as their nature requires.‖ (Belgian Overseas the point of destination. In case the
49
Bar Operations C ommissions 49
Purple Notes
Mercantile Law
operation of a public utility. TNCs and TNVS are Basic Obligations of the Carrier:2018
considered as engaged in the business of
carrying or transporting passengers for 1. To accept passengers and goods without
compensation and offering their services to the discrimination;
public. As such, the operation of TNCs and TNVS 2. To seasonably deliver the goods or bring the
is imbued with public interest and must submit passenger to the destination;
to the full regulation by the State. (DOTr 3. To deliver the goods or bring the passenger
Department Order No. 2018-013). to the proper place or destination;
4. To deliver the goods to the proper person;
B. VIGILANCE OVER GOODS and
5. To exercise extraordinary diligence in the
Common carriers are responsible for the loss, performance of its duties. (Aquino &
destruction or deterioration of the goods. (Art. Hernando, Essential on Transportation and Public
1734, NCC) Utilities Law, 2016, p. 56)
51
Bar Operations C ommissions 51
Purple Notes
Mercantile Law
undertaking on the part of the carrier is to be CONTRIBUTORY NEGLIGENCE 2018
determined from the circumstances surrounding
the case and by application of the ordinary rules If the shipper or owner merely contributed to
for the interpretation of contracts. (Saludo, Jr. vs. the loss, destruction or deterioration of the
CA, G.R. No. 95536, March 23, 1992) goods, the proximate cause thereof being the
negligence of the common carrier, the latter
A common carrier undertaking to transport shall be liable in damages, which however, shall
property has the implicit duty to carry and be equitably reduced. (Art. 1741, NCC)
deliver it within reasonable time, absent any
particular stipulation regarding time of delivery, Contributory negligence is conduct on the part
and to guard against delay. In case of any of the injured party, contributing as a legal
unreasonable delay, the carrier shall be liable for cause to the harm he has suffered, which falls
damages immediately and proximately resulting below the standard which he is required to
from such neglect of duty. (Saludo, Jr. vs. CA, G.R. conform for his own protection. It is an act or
No. 95536, March 23, 1992) omission amounting to want of ordinary care on
the part of the person injured which, concurring
Consequences of a common carrier‘s delay in with the defendant‘s negligence, is the
the transportation of goods: proximate cause of the injury. (National Power
Corp. vs. Heirs of Casionan, G.R. No. 165969,
1. the carrier is still liable even if natural November 27, 2008)
disaster is caused the damage;
2. the stipulation limiting the liability of the However, the carrier may be allowed to prove
carrier is inoperative; that the only cause of the loss of the goods is
3. the carrier is liable for the damages caused any of the following acts of the shipper:
by the delay; and
4. the consignee may exercise his right to 1. failure of the shipper to disclose the nature
abandon under Article 371 of the Code of of the goods;
Commerce. (Aquino & Hernando, of 2. improper marking or direction as to
Transportation and Public Utilities Law, 2016, p. destination;
66) 3. improper loading when he assumed such
responsibility. (Aquino & Hernando, of
Due Diligence to Prevent or Lessen the Transportation and Public Utilities Law, 2016, p.
Loss 228)
In order that the common carrier may be Contributory negligence on the part of the
exempted from responsibility, the natural injured party is NOT a defense that will excuse
disaster must have been the proximate and only the carrier from liability. It will only mitigate
cause of the loss. However, the common carrier such liability. (Del Prado vs. Manila Electric Co., G.R.
must exercise due diligence to prevent or No. L-29462, March 7, 1929)
minimize loss before, during and after the
occurrence of flood, storm or other natural Doctrine of Last Clear Chance
disaster in order that the common carrier may
be exempted from liability for the loss, Under the doctrine of last clear chance, when
destruction, or deterioration of the goods. (Art. both parties involved in the accident were both
1739, NCC) negligent, the negligence of the party will not be
considered the proximate cause if the other
Even if the loss, destruction, or deterioration of party has the last clear chance of avoiding the
the goods should be caused by the character of injury. Thus, if the plaintiff has the last clear
the goods, or the faulty nature of the packing or chance of avoiding the injury, the defendant
of the containers, the common carrier must may no longer be held liable.
exercise due diligence to forestall or lessen the
loss. (Art. 1742, NCC)
The extraordinary responsibility of the common The common carrier's duty to observe
carrier lasts from the time the goods are extraordinary diligence over the goods remains
unconditionally placed in the possession of, and in full force and effect even when they are
received by the carrier for transportation. (Art. temporarily unloaded or stored in transit, unless
1736, NCC) the shipper or owner has made use of the right
of stoppage in transit. (Art. 1737, NCC)
There is delivery to the carrier when the goods
are ready for and have been placed in the The extraordinary liability of the common carrier
exclusive possession, custody and control of the continues to be operative even during the time
carrier for the purpose of their immediate the goods are stored in a warehouse of the
transportation and the carrier has accepted carrier at the place of destination, until the
them. Where such a delivery has thus been consignee has been advised of the arrival of the
accepted by the carrier, the liability of the goods and has had reasonable opportunity
common carrier commences eo instanti. (Saludo, thereafter to remove them or otherwise dispose
Jr. vs. CA, G.R. No. 95536, March 23, 1992) of them (Art. 1738, NCC).
53
Bar Operations C ommissions 53
Purple Notes
Mercantile Law
in a warehouse of the carrier at the place of 2. That the common carrier will not 2018be liable
destination. (Art. 1737 – 1738, NCC) for any loss, destruction, or deterioration of
the goods;
Exception: The common carrier is not bound to 3. That the common carriers need not observe
exercise such diligence when the shipper or any diligence in the custody of the goods;
owner has made use of the right of stoppage in 4. That the common carrier shall exercise a
transit. (Art. 1737, NCC) degree of diligence less than that of a good
father of a family, or of a man of ordinary
Right of stoppage in transit prudence in the vigilance over the movables
transported;
The right of stoppage in transit is the right of an 5. That the common carrier shall not be
unpaid seller to resume possession of the goods responsible for the acts or omission of his or
at any time while they are in transit, and he will its employees;
then become entitled to the same rights in 6. That the common carrier's liability for acts
regard to the goods as he would have had if he committed by thieves, or of robbers who do
had never parted with the possession. (Art. 1530, not act with grave or irresistible threat,
NCC) violence or force, is dispensed with or
diminished;
Note: Such extraordinary liability continues until 7. That the common carrier is not responsible
the consignee has been advised of the arrival of for the loss, destruction, or deterioration of
the goods and has had reasonable opportunity goods on account of the defective condition
thereafter to remove them or otherwise dispose of the car, vehicle, ship, airplane or other
of them. (Nedlloyd Lijnen B.V. Rotterdam vs. Glow equipment used in the contract of carriage.
Laks Enterprises, Ltd., G.R. No. 156330, November (Art. 1745, NCC)
19, 2014)
Limitation of Liability to Fixed Amount:
STIPULATION FOR LIMITATION OF
LIABILITY A contract fixing the sum that may be recovered
by the owner or shipper for the loss,
Requirements to be valid: destruction, or deterioration of the goods is
valid, if it is reasonable and just under the
A stipulation between the common carrier and circumstances, and has been fairly and freely
the shipper or owner limiting the liability of the agreed upon. (Art. 1750, NCC)
former for the loss, destruction, or deterioration
of the goods to a degree less than extraordinary Limitation of Liability in Absence of
diligence shall be valid, provided it be: Declaration of Greater Value:
1. In writing, signed by the shipper or owner; A stipulation that the common carrier's liability is
2. Supported by a valuable consideration other limited to the value of the goods appearing in
than the service rendered by the common the bill of lading, unless the shipper or owner
carrier; and declares a greater value, is binding. (Art. 1749,
3. Reasonable, just and not contrary to public NCC)
policy. (Art. 1744, NCC)
Note: If the common carrier, without just
Void Stipulations: cause, delays the transportation of goods or
changes the stipulated route, the contract
Any of the following or similar stipulations shall limiting the common carrier‘s liability cannot be
be considered unreasonable, unjust and availed of in case of the loss, destruction, or
contrary to public policy: deterioration of the goods. (Art. 1747, NCC)
Where the common carrier accepted its The deposit of effects made by travelers in
passenger's baggage for transportation and hotels or inns shall also be regarded as
even had it placed in the vehicle by its own necessary. The keepers of hotels or inns shall be
employee, its failure to collect the freight charge responsible for them as depositaries, provided
is the common carrier's own lookout. It is that notice was given to them, or to their
responsible for the consequent loss of the employees, of the
baggage. (Sarkies Tours Philippines vs. CA, G.R. No. effects brought by the guests and that, on the
108897 October 2, 1997) part of the latter, they take the precautions
which said hotel-keepers or their substitutes
Baggage in Possession of Passengers advised relative to the care and vigilance of their
Applicability of Articles 1733 to 1753 to effects. (Art. 1998, NCC)
passenger‟s baggage which is not in his The responsibility referred to in the two
personal custody or in that of the preceding articles shall include the loss of, or
employee: injury to the personal property of the guests
caused by the servants or employees of the
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Mercantile Law
keepers of hotels or inns as well as strangers; 2018 with
2. A carrier is obliged to carry passengers
but not that which may proceed from any force Utmost diligence of a very cautious
majeure. The fact that travellers are constrained person;
to rely on the vigilance of the keeper of the 3. A carrier is Presumed to be at fault or to
hotels or inns shall be considered in determining have acted negligently in case of death
the degree of care required of him. (Art. 2000, of, or injury to, passengers;
NCC) 4. A carrier is Not an insurer against all
risk of travel. (Isaac vs. A.L. Ammen
The act of a thief or robber, who has entered Transportation, G.R. No. L-9671, August 23,
the hotel is not deemed force majeure, unless it 1957)
is done with the use of arms or through an
irresistible force. (Art. 2001, NCC) The contract of air carriage is a peculiar one.
Being imbued with public interest, the law
The hotel-keeper is not liable for compensation requires common carriers to carry the
if the loss is due to the acts of the guest, his passengers safely as far as human care and
family, servants or visitors, or if the loss arises foresight can provide, using the utmost diligence
from the character of the things brought into the of a very cautious person, with due regard for
hotel. (Art. 2002, NCC) all circumstances. If the cause of non-fulfillment
of the contract is due to a fortuitous event, it
The hotel-keeper cannot free himself from has to be the sole and only cause. (PAL vs. CA,
responsibility by posting notices to the effect G.R. No. L-82619, September 15, 1993)
that he is not liable for the articles brought by
the guest. Any stipulation between the hotel- Valid Stipulations (Carriage of Passengers)
keeper and the guest whereby the responsibility
of the former as set forth in Articles 1998 to A stipulation limiting liability for negligence is
2001 is suppressed or diminished shall be void. valid, but not for willful acts or gross negligence,
(Art. 2003, NCC) when a passenger is carried gratuitously. (Art.
1758, NCC)
C. SAFETY OF PASSENGERS
VOID STIPULATIONS (Carriage of
Duty to observe utmost diligence Passengers)
A common carrier is bound to carry the 1. Absolutely exempting the common carrier
passengers safely as far as human care and from liability for the passenger's death or
foresight can provide, using the utmost diligence injuries;
of very cautious person with due regard for all 2. Lessening the extraordinary diligence
circumstances. (Art. 1755, NCC) required by law to the diligence of a good
father of a family;
The extraordinary diligence required of common 3. Dispensing or reducing the responsibility of
carriers is calculated to protect the passengers a common carrier for the safety of
from the tragic mishaps that frequently occur in passengers as required in Articles 1733 and
connection with rapid modern transportation. 1755, by the posting of notices, by
statements on tickets, or otherwise; (Art.
The high standard of care is imperatively 1757, NCC)
demanded by the precariousness of human life 4. Limiting the common carrier's liability for
and by the consideration that every person must willful acts or gross negligence, when a
in every way be safeguarded against all injuries. passenger is carried gratuitously.;
The principles governing the liability of a
common carrier are: Note: The reduction of fare does not justify any
limitation of the common carrier's liability. (Art.
1. The liability of a carrier is Contractual and 1758, NCC).
arises upon breach of its obligation;
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Mercantile Law
negligence of the passengers or of strangers, if unfinished/uncompleted voyages. It 2018
serves to
the common carrier‘s employees through the provide a clear outline of the rights of the
exercise of diligence of a good father of the passengers and the obligation of the operators
family could have prevented or stopped the act as well as the remedies available to the former
or omission. (Art. 1763, NCC) in case of violations and/or non-compliance
therewith by the latter. Hence, in case of
Although the employer was not inside the delayed voyages, the operator/carrier
vehicle at the time of the collision, he is still shall become liable to the passengers.
solidarily liable with the employee. (Sps.
Hernandez vs. Sps. Dolor, G.R. No. 160286, July 30, LIABILITY FOR DEFECTS IN EQUIPMENT
2004) AND FACILITIES
It is the carrier‘s strict obligation to select its A common carrier is bound to carry the
drivers and similar employees with due regard passengers safely as far as human care and
not only to their technical competence and foresight can provide, using utmost diligence of
physical ability, but also, no less important, to very cautious persons, with a due regard for all
their total personality, including their patterns of circumstances. It is clear that the carrier is not
behavior, moral fibers, and social attitude. an insurer of the passengers' safety. His liability
(Maranan vs. Perez, G.R. No. L-22272, June 26, 1967) rests upon negligence, his failure to exercise the
"utmost" degree of diligence that the law
The rule of ordinary care and prudence is not so requires, and in case of a passenger's death or
exacting as to require one charged with its injury the carrier bears the burden of satisfying
exercise to take doubtful or unreasonable the court that he has duly discharged the duty
precautions to guard against unlawful acts of of prudence required. The rule on the liability of
strangers. The carrier is not charged with the carriers for defects of equipment is thus
duty of providing or maintaining vehicles as to expressed: ―The preponderance of authority is in
absolutely prevent any and all injuries to favor of the doctrine that a passenger is entitled
passengers. Where the carrier uses cars of the to recover damages from a carrier for an injury
most approved type, in general use by others resulting from a defect in an appliance
engaged in the same occupation, and exercises purchased from a manufacturer, whenever it
a high degree of care in maintaining them in appears that the defect would have been
suitable condition, the carrier cannot be charged discovered by the carrier if it had exercised the
with negligence in this respect. (Pilapil vs. CA, degree of care which under the circumstances
G.R. No. 52159, December 22, 1989) was incumbent upon it, with regard to
inspection and application of the necessary
LIABILITY FOR DELAY IN tests. For the purposes of this doctrine, the
COMMENCEMENT OF VOYAGE manufacturer is considered as being in law the
agent or servant of the carrier, as far as regards
A delayed voyage refers to a voyage involving the work of constructing the appliance.
late departure of the ship from its port of origin According to this theory, the good repute of the
or late arrival thereof to its port of destination manufacturer will not relieve the carrier from
for a period of time not exceeding twenty-four liability.‖ (Necesito, et al., vs. Paras, et al., G.R. Nos.
(24) hours from the Certificate of Public L-10605 and L-10606, June 30, 1958)
Convenience (CPC) - authorized time of The rationale of the carrier's liability is the
departure or arrival of the ship. fact that the passenger has neither choice
nor control over the carrier in the selection
MARINA Circular No. 2018-07 dated and use of the equipment and appliances
September 20, 2018 – clearly orders to intensify in use by the carrier. Having no privity
and ensure that protection of the public against whatever with the manufacturer or vendor of
inefficient shipping and/or transport services and the defective equipment, the passenger has no
in order to clearly establish their rights against remedy against him, while the carrier usually
operators in cases of cancelled, delayed, or has. It is but logical, therefore, that the carrier,
There are two kinds of actual or compensatory Articles 2221 and 2222 of the Civil Code make it
damages: one is the loss of what a person clear that nominal damages are NOT intended
already possesses (daño emergente), and the for indemnification of loss suffered but for the
other is the failure to receive as a benefit that vindication or recognition of a right violated or
which would have pertained to him (lucro invaded. They are recoverable where some
cesante). (Marikina Auto Line Transport Corp vs. injury has been done but the amount of which
People, G.R. No. 152040, March 21, 2006) the evidence fails to show, the assessment of
damages being left to the discretion of the court
2. Moral Damages (See Arts. 2217 to 2220, according to the circumstances of the case.
NCC)
Under Article 2224 of the New Civil Code, when
General Rule: Moral damages are not pecuniary loss has been suffered but the
recoverable in culpa contractual. amount cannot, from the nature of the case, be
proven with certainty, temperate damages may
Exceptions: be recovered. Temperate damages maybe
allowed in cases where from the nature of the
a. In case of death of passenger as a result of case, definite proof of pecuniary loss cannot be
the contractual breach. adduced, although the court is convinced that
b. When there is fraud or bad faith in the the aggrieved party suffered some pecuniary
breach of contract even if no death occurs. loss. (Adriano vs. La Sala, G.R. No. 197842, October
9, 2013)
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The liability for liquidated damages is 2018 at the
defendant, had no earning capacity
governed by Articles 2226-2228 of the New Civil time of his death;
Code. They are those agreed upon by the c. If the deceased was obliged to give support
parties to a contract, to be paid in case of according to the provisions of Article 291,
breach thereof. The parties to a contract are the recipient who is not an heir called to the
allowed to stipulate on liquidated damages to be decedent's inheritance by the law of testate
paid in case of breach. It is attached to an or intestate succession, may demand
obligation in order to ensure performance and support from the person causing the death,
has a double function: (1) to provide for for a period not exceeding five years, the
liquidated damages, and (2) to strengthen the exact duration to be fixed by the court;
coercive force of the obligation by the threat of d. The spouse, legitimate and illegitimate
greater responsibility in the event of breach. descendants and ascendants of the
(Atlantic Erectors, Inc., vs. CA, G.R. No. 170732, deceased may demand moral damages for
October 11, 2012) mental anguish by reason of the death of
the deceased.
5. Attorney‟s Fees and Interests
D. BILL OF LADING
Article 2208 of the New Civil Code of the
Philippines states the policy that should guide Bill of lading is a written acknowledgement of
the courts when awarding attorney‘s fees to a receipt of goods and an agreement to transport
litigant. As a general rule, the parties may them to a specific place to a person named or to
stipulate the recovery of attorney‘s fees. In the his order. (Unsworth Transport International (Phils.),
absence on such stipulation, this article Inc. vs. CA, G.R. No. 166250, July 26, 2010)
restrictively enumerates the instances when
these fees may be recovered. (PNCC vs. APAC THREE-FOLD CHARACTER
Marketing Corporation, G.R. No. 190957, June 5,
2013) A bill of lading serves three (3) fold character:
Note: The attorney‘s fees which may be 1. It is a Receipt for the goods shipped;
awarded under Article 2208 is defined as being
in the extraordinary concept as indemnity. As a receipt, it recites the date and place of
(Philippine National Construction Corporation vs. shipment, describes the goods as to quantity,
APAC Marketing Corp., G.R. No. 190957, June 5,
weight, dimensions, identification marks and
2013)
condition, quality, and value. (Ace Navigation Co.,
Inc. vs. FGU Insurance Corp., G.R. No. 171591, June
Amount of damages for death by a crime or
25, 2012)
quasi-delict; additional liability of defendant (Art.
2206, NCC): A bill of lading usually becomes effective upon
its delivery to and acceptance by the shipper. It
The amount of damages for death caused by a is presumed that the stipulations of the bill
crime or quasi-delict shall be at least three were, in the absence of fraud, concealment or
thousand pesos, even though there may have improper conduct, known to the shipper, and he
been mitigating circumstances. In addition: is generally bound by his acceptance whether he
reads the bill or not. (Magellan Manufacturing
a. The defendant shall be liable for the loss of Marketing Corp. vs. CA, G.R. No. 95529, August 22,
the earning capacity of the deceased, and 1991)
the indemnity shall be paid to the heirs of
the 2. It is a Contract by which three (3)
b. latter; such indemnity shall in every case be parties (shipper, carrier, and consignee)
assessed and awarded by the court, unless undertake specific responsibilities and
the deceased on account of permanent assume stipulated obligations;
physical disability not caused by the
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If no indemnity has been stipulated and the d. Contrabands or illegal goods; 2018
delay exceeds the time fixed in the bill of lading, e. Goods are injurious to health;
the carrier shall be liable for the damages which f. Goods will be exposed to untoward danger
the delay may have caused. (Art. 370, CC) like flood, capture by enemies and the like;
g. Goods like livestock will be exposed to
Period stipulated and when not stipulated, disease;
compared: h. Strike;
i. Failure to tender goods on time. (Aquino &
Stipulated in Hernando, Essentials of Transportation and Public
Contract/Bill of No stipulation Utilities Law, 2016, p. 59)
Lading
PERIOD OF FILING CLAIMS
Carrier is bound to 1. Within a reasonable
fulfill the contract time. a. Patent damage (damage is apparent):
and is liable for 2. Carrier is bound to
Shipper must file a claim against the carrier
any delay; no forward them in the 1st
matter from what shipment of the same or
immediately upon delivery (it may be
cause it may have similar goods which he oral or written); or
arisen. may make to the point
of delivery. (Art. 358, b. Latent damage (damage cannot be
CC) ascertained merely from outside packaging):
Shipper should file a claim against the
Delivery Without Surrender of Bill of carrier within 24 hours from delivery.
lading (Art. 366, CC)
In case the consignee, upon receiving the Note: The requirement to give notice of loss or
goods, cannot return the bill of lading damage to the goods is not an empty formalism.
subscribed by the carrier, due to its loss or for The fundamental reason or purpose of such a
any other cause, he shall give said carrier a stipulation is not to relieve the carrier from just
receipt for the goods delivered, this receipt liability, but reasonably to inform it that the
producing the same effect as the return of the shipment has been damaged and that it is
bill of lading. charged with liability therefor, and to give it an
opportunity to examine the nature and extent of
The surrender of the original bill of lading is not the injury. This protects the carrier by affording
a condition precedent for a common carrier to it an opportunity to make an investigation of a
be discharged of its contractual obligation. If claim while the matter is still fresh and easily
surrender of the original bill of lading is not investigated so as to safeguard itself from false
possible, acknowledgment of the delivery by and fraudulent claims. (UCPB General Insurance
signing the delivery receipt suffices. (National Co., Inc. vs. Aboitiz Shipping Corp., GR No. 168433,
Trucking and Forwarding Corp. vs. Lorenzo Shipping February 10, 2009)
and Shipping Corp., G.R. No. 153563, February 7,
2005) PRESCRIPTIVE PERIOD FOR FILING
ACTIONS IN COURT:
Refusal of Consignee to Take Delivery
For coastwise or carriage within the
Carrier may validly refuse to accept the goods Philippines:
when:
1. If no bill of lading was issued: within 6 years
a. Goods sought to be transported are (Art. 1145, NCC)
dangerous objects, or substances including 2. If bill of lading was issued: within 10 years
dynamite and other explosives; (Art. 1144, NCC)
b. Goods are unfit for transportation;
c. Acceptance would result in overloading;
3. Limiting the liability of the carrier to an Charter parties are of two types:
agreed valuation unless the shipper declare
a higher value and pays a higher rate of 1. Bareboat/Demise Charter
freight. (valid) (Freixas and Company, vs. 2. Contract of Affreightment
Pacific Mail Steamship Co., G.R. No. L-16569,
October 3, 1921)
Bareboat/Demise Charter:
A stipulation in a bill of lading which either
exempts the carrier from liability for loss or Under a demise or bareboat charter, the
damage occasioned by its negligence or charterer mans the vessel with his own people
provides for an unqualified limitation of such and becomes, in effect, the owner for the
liability to an agreed valuation, is invalid as voyage or service stipulated, subject to liability
being contrary to public policy. (H. E. Heacock for damages caused by negligence. (Caltex,
[Phils.], Inc. vs. Sulpicio Lines, Inc., G.R. No. 131166,
Company vs. Macondray & Company, Inc., G.R. No.
September 30, 1999)
16598, October 3, 1921)
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Mercantile Law
Contract of Affreightment: 1. Civilly liable for the acts of the 2018
captain and
for the obligations contracted by the latter
A contract of affreightment is one by which the to repair, equip, and provision the vessel,
owner of a ship or other vessel lets the whole or provided the creditor proves that the
part of her to a merchant or other person for amount claimed was invested for the benefit
the conveyance of goods, on a particular of the same. (Art. 586, CC)
voyage, in consideration of the payment of 2. Damages suffered by a third person for tort
freight. (Caltex, [Phils.], Inc. vs. Sulpicio Lines, Inc., committed by the captain; and
G.R. No. 131166, September 30, 1999) 3. Damages in case of collision due to fault or
negligence or want of skill of the captain.
Two types of Contract of Affreightment: (Aquino & Hernando, Essentials of Transportation
and Public Utilities Law, 2016, p. 122)
1. Time Charter
2. Voyage or Trip Charter The ship agent shall also be civilly liable for the
indemnities in favor of third persons which may
Time Charter - wherein the leased vessel is arise from the conduct of the captain in the care
leased to the charterer for a fixed period of of the goods which he loaded on the vessel; but
time; he may exempt himself therefrom by
abandoning the vessel with all her equipment
Voyage or Trip Charter - wherein the ship is and the freight it may have earned during the
leased for a single voyage. voyage. Loss and damage to the goods loaded
on the vessel without prejudice to their right to
In both cases, the charter-party provides for the free themselves from liability by abandoning the
hire of the vessel only, either for a determinate vessel to the creditors. (Art. 587, CC)
period of time or for a single or consecutive
voyage, the ship owner to supply the ships Limited Liability Rule
store, pay for the wages of the master of the
crew, and defray the expenses for the The exclusively real and hypothecary nature of
maintenance of the ship and also for any loss or maritime law operates to limit the liability of the
injury during the voyage. The charterer is free shipowner to the value of the vessel, earned
from liability to third persons and the charter freightage, and proceeds of the insurance, if
party did not convert the common carrier into a any. It is also called the ―no vessel, no liability
private carrier. Here, the common carrier doctrine.‖
deemed to have warrant impliedly the
seaworthiness of the ship. Likewise, the The real and hypothecary nature of maritime
charterer has no obligation to ensure that the law simply means that the liability of the carrier
vessel complied with all legal requirements. The in connection with losses related to maritime
duty rests upon the common carrier simply for contracts is confined to the vessel, which is
being engaged in public service. It demands, hypothecated for such obligations or which
however, diligence which is required by the stands as the guaranty for their settlement.
nature of the obligation and that which Thus, the liability of the vessel owner and agent
corresponds with the circumstances of the arising from the operation of such vessel were
person, the time and the place. (Caltex, [Phils.], confined to the vessel itself, its equipment,
Inc. vs. Sulpicio Lines, Inc., G.R. No. 131166, freight, and insurance, if any, which limitation
September 30, 1999) served to induce capitalists into effectively
wagering their resources against the
LIABILITY OF SHIPOWNERS AND consideration of the large profits attainable in
SHIPPING AGENTS the trade. (Aboitiz Shipping Corp. vs. Gen. Accident
Fire and Life Assurance Corp. Ltd., G.R. No. 100446,
Liability for Acts of Captain January 21, 1993)
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Mercantile Law
e. Detailed minutes Second Zone: The time between 2018 moment
f. Delivery of the minutes to the maritime when risk of collision begins and moment it
judicial authority of the first port within 24 becomes a practical certainty. It is in this period
hours from arrival where conduct of the vessels must strictly
g. Ratification by captain under oath (Arts. observe nautical rules, unless a departure
813 to 814, CC) therefrom becomes necessary to avoid imminent
danger. (Ibid.)
5. Order of jettison – the captain shall direct
the jettison, and shall order the goods cast Third Zone: Covers the time of actual contact.
overboard in the following order: (Ibid.)
It includes all the expenses and damages Where fault is established but it cannot be
caused to the vessel or to her cargo which have determined which if the two vessels were at
not inured to the common benefit and profit of fault, both shall be deemed to have been at
all the persons interested in the vessel and her fault. (Sundiang & Aquino, Reviewer on Commercial
cargo. (Art. 809, CC) Law , 2017, p. 479)
The owner of the goods which gave rise to the CARRIAGE OF GOODS BY SEA ACT
expense or suffered the damage shall bear the (COGSA)
simple the simple or particular averages. (Art.
810, CC) Application of COGSA
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Purple Notes
Mercantile Law
2018 or his
act, or neglect of the shipper, his agents,
Neither the carrier nor the ship shall be servants. (Sec. 4, par. 3, COGSA)
responsible for loss or damage arising or
resulting from: Any deviation in saving or attempting to save
life or property at sea, or any reasonable
a. Act, neglect, or default of the master, deviation shall not be deemed to be an
mariner, pilot, or the servants of the carrier infringement or breach or this Act or of the
in the navigation or in the management of contract of carriage, and carrier shall not be
the ship; liable for any loss or damage resulting
b. Fire, unless caused by the actual fault or therefrom: Provided, however, that if the
privity of the carrier; deviation is for the purpose of loading or
c. Perils, dangers, and accidents of the sea or unloading cargo or passengers it shall, prima
other navigable water; facie, be regarded as unreasonable. (Sec. 4, par.
d. Act of God; 4, COGSA)
e. Act of war;
f. Act of public enemies; Neither the carrier nor the ship shall in any
g. Arrest or restraint of princes, rulers, or event be or become liable for any loss or
people, or seizure under legal process; damage to or in connection with the
h. Quarantine restrictions; transportation of goods in an amount
i. Act or omission of the shipper or owner of exceeding $500 per package of lawful
the goods, his agent or representative; money of the United States, or in case of
j. Strikes or lockouts or stoppage or restraint goods not shipped in packages, per customary
of labor from whatever cause, whether freight unit, or the equivalent of that sum in
partial or general: Provided, that nothing other currency, unless the nature and value of
herein contained shall be construed to such goods have been declared by the shipper
relieve a carrier from responsibility for the before shipment and inserted in the bill of
carrier‘s own acts; lading. This declaration, if embodied in the bill of
k. Riots and civil commotions; lading, shall be prima facie evidence, but shall
l. Saving or attempting to save life or property not be conclusive on the carrier.
at sea;
m. Wastage in bulk or weight or any other loss By agreement between the carrier, master or
or damage arising from inherent defect, agent of the carrier, and the shipper another
quality, or vice of the goods; maximum amount than that mentioned in
n. Insufficiency or packing; this paragraph may be fixed: Provided, that
o. Insufficiency or inadequacy of marks; such maximum shall not be less than the
p. Latent defects not discoverable by due figure above named. In no event shall the
diligence; and carrier be liable for more than the amount
q. Any other cause arising without the actual of damage actually sustained.
fault and privity of the carrier and without
the fault or neglect of the agents or servants Neither the carrier nor the ship shall be
of the carrier, but the burden of proof shall responsible in any event for loss damage to or in
be on the person claiming the benefit of this connection with the transportation of the goods
exception to show that neither the actual if the nature or value thereof has been
fault or privity of the carrier nor the fault or knowingly and fraudulently misstated by the
neglect of the agents or servants of the shipper in the bill of lading. (Sec. 4, par. 5,
carrier contributed to the loss or damage. COGSA)
(Sect. 4, par. 2, COGSA)
Goods of an inflammable, explosive, or
The shipper shall not be responsible for loss or dangerous nature to the shipment whereof, the
damage sustained by the carrier or the ship carrier, master or agent of the carrier, has not
arising or resulting from any cause without the consented with knowledge of their nature and
character, may at any time before discharge be
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Mercantile Law
purpose of such procedure, among other things, overlap with the entire route 2018 of the old
is to look out for, and protect, the interests of operator but only a short portion thereof as
both the public and the existing transport a convergence point (Mandbusco, Co., vs.
operators. (Kilusang Mayo Uno vs. Garcia, G.R. No. Francisco, G.R. No. L-23688 April 30, 1970) ;
115381, December 23, 1994) 4. If the application of the rule will be
conducive to monopoly of the service, and
3. Applicant must have sufficient financial
contrary to the orinciple that promotes
capability to undertake the service. (Vda. De
healthy competition (Villarey Transit, Inc., vs.
Lat vs. The Public Service Commission, G.R. No. L-
Pangasinan Transit Inc., G.R. L-17684-85, May
34978, February 26, 1988).
30, 1962);
5. If the old operator unjustifiably abandoned
Prior Operator Rule
his service for two or three years by not
Meaning
registering the necessary equipment forfeits
his right to said equioment and the service
The rule allowing an existing franchised operator
authorized to him (Farinas vs. Estate of
to invoke a preferential right within the
Florencio Buan, G.R. No. 12306-7, November 29,
authorized territory as long as he renders 1961);
satisfactory and economical service. 6. The service of the prior operator is
inefficient;
The policy is not to issue a certificate to a 7. The prior operation is operating less units
second operator when a prior operator is than he was authorized.
rendering sufficient, adequate and satisfactory
service. (Sundiang & Aquino, Reviewer on Ruinous Competition
Commercial Law, 2017, p. 507)
Purpose: To prevent ruinous and wasteful Ruinous competition means that because of
competition in order that the interests of the the competition, the income of the first licensee
public would be conserved and preserved. will be so reduced that it will not give him an
adequate return on his investment.
Note: While it is true that operators of public The mere possibility of reduction in the earnings
convenience and service deserve some of a business is not sufficient to prove ruinous
protection from unnecessary or unlawful competition. It must be shown that the business
competition, yet the rule is that nobody has any would not have sufficient gains to pay a fair rate
exclusive right to secure a franchise or a of interest on its capital investment. (Manila
certificate of public convenience. Above any or Electric Co. vs. Pasay Transportation Co. Inc., G.R.
all considerations, the grant of franchises and No. 45239, July 28, 1938)
certificates of public convenience and service
should be guided by public service and interest; FIXING OF RATE
the latter are the primordial considerations to be
taken into account. (Phil. Rabbit Bus Lines vs. The rate to be fixed must be just, founded upon
Gabatin, G.R. No. L-24472, July 31, 1968) conditions which are fair and reasonable to
both the owner and the public. (Sundiang &
Exceptions to Prior Operator Rule: Aquino, Reviewer on Commercial Law, 2017, p. 490)
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Mercantile Law
thereof, with those of any other public service. a break in the 2018
transportation or
(Sec. 20, par. [g], PSA) transshipment, or
2. Within the territory of a single High
The approval shall be given, after notice to the
Contracting Party, if there is an agreed
public and hearing the persons interested at a
stopping place within a territory subject to
public hearing, if it be shown that there are just
the sovereignty, mandate or authority of
and reasonable grounds for making the
another power, even though that power is
mortgaged or encumbrance, for liabilities of
not a party to the Convention. (Art. 1[2], WC)
more than one year maturity, or the sale,
alienation, lease, merger, or consolidation to be Transportation to be performed by several
approved, and that the same are not successive air carriers shall be deemed to be
detrimental to the public interest, and in case of one undivided transportation, if it has been
a sale, the date on which the same is to be regarded by the parties as a single operation,
consummated shall be fixed in the order of whether it has been agreed upon under the
approval: Provided, however, that nothing form of a single contract or of a series of
herein contained shall be construed to prevent contracts, and it shall not lose its international
the transaction from being negotiated or character merely because one contract or a
completed before its approval or to prevent the series of contracts is to be performed entirely
sale, alienation, or lease by any public service of within a territory subject to the sovereignty,
any of its property in the ordinary course of its suzerainty, mandate, or authority of the same
business. (Sec. 20, par. [g], PSA) High Contracting Party. (Art. 1[3], WC)
(The Convention for the Unification of Certain The Convention does not apply to transportation
Rules Relating to International Transportation by Air)
performed under the terms of any international
postal convention. (Article 2[2], WC).
APPLICABILITY
When the carrier is liable
The transportation must be:
1. Death or injury of a passenger if the
1. International transportation; accident causing it took place on board the
2. Air transportation; and aircraft or in the course of its operations of
3. Carriage of passengers, baggage or goods. embarking or disembarking (Art. 17, WC);
(Art. 1[1], WC) 2. Destruction, loss or damage to any baggage
or goods, if it took place during the
―transportation by air‖; (Art. 18, WC) and
Transportation by air – The period during
Other applications:
which the baggage or goods are in the
charge of the carrier, whether in an airport
The Warsaw Convention shall also apply to
or on board an aircraft, or, in case of a
fortuitous events affecting transportation by
landing outside an airport, in any place
aircraft performed by an air transportation
whatsoever.
enterprise.
3. Delay in the transportation by air of
International transportation - any passengers, baggage or goods. (Art. 19, WC)
transportation in which the place of departure Note: The list is not exclusive.
and the place of destination are situated either:
No Liability
1. Within the territories of two High Contracting
Parties regardless of whether or not there be
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Mercantile Law
It is both: Separate personality: 2018
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Mercantile Law
c. Rent to a landlord 2018
General Rule: Persons who are not partners as d. Annuity to a widow or representative of a
to each other are not partners as to third deceased partner
persons. (Art. 1769[1], NCC) e. Interest on a loan
f. Consideration for the sale of goodwill of a
Exception: When a person represents himself business or other property by installments or
or consents to another representing him to otherwise (Art. 1769[4], NCC).
anyone, as a partner in an existing partnership
or with one or more persons not actual partners, Classifications of partnership and Kinds of
he is liable to persons who, in good faith, has Partners
relied on such representation and given credit to
the actual or apparent partnership. (Partnership As to object:
by estoppel). (Art. 1825, NCC)
1. Universal partnership – may refer to all the
2. Co-ownership or Co-possession: present property or to all the profits. (Art.
1777, NCC).
a. Co-ownership or co-possession does not
in itself establish a partnership, whether a. Universal partnership of all present
such co-owners or co-possessors do or property – is that in which the partners
do not share any profits made by the contribute all the property, which
use of the property (Art. 1769[2], NCC). actually belongs to them to a common
b. There must be a clear intent to form a fund, with the intention of dividing the
partnership. same among themselves, as well as the
profits, which they may acquire
3. Sharing of Gross Returns: therewith. (Art. 1778, NCC).
b. Universal partnership of profits –
a. The sharing of gross returns does not of comprises all that the partner may
itself establish a partnership, whether acquire by their industry or work during
or not the persons sharing them have a the existence of the partnership. (Art.
joint or common right or interest in any 1780, NCC).
property from which the returns are
derived (Art. 1769[3], NCC). 2. Particular partnership – is one which has for
its object determinate things, their use and
b. There must be a clear intent to form a fruits, or a specific undertaking, or the
partnership, the existence of a juridical exercise of a profession or vocation. (Art.
personality different from the individual 1783, NCC).
partners, and the freedom of each party
to transfer or assign the whole property.
(Pascual vs. CIR, G.R. No. 78133, October As to liability of partners:
18, 1988.
1. General partnership – is one where all the
4. Sharing of Profits: partners are general partners (that is, they
are liable even with respect to their
General Rule: Receipt by a person of a share individual properties, after the assets of the
of the profits of a business is prima facie partnership have been exhausted). (Paras,
evidence that he is a partner in the business Civil Code of the Philippines Annotated, 2013,
(Art. 1769[4], NCC). p.612)
Exception: No such inference shall be drawn if 2. Limited partnership – is one where at least
profits were received in payment as: one partner is a general partner, and the
a. Debt by installments or otherwise rest are limited partners. (Paras, Civil Code of
b. Wages of an employee the Philippines Annotated, 2013, p.612). The
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Mercantile Law
2018
3. Profits and fruits, if expressly stipulated, of
Object: It may refer either to— property acquired by each partner after the
constitution of the partnership. (De Leon and
1. All present properties of partners; or De Leon, Jr., Comments and Cases on
2. All profits. (Art. 1777, NCC) Partnership, Agency and Trusts, 2014, p.78)
Name may appear in Name must not appear a. Ostensible partner – one who takes active
the firm name in the firm name part and is known to the public as a partner
Except: in the business (Art. 1834[2], NCC), whether
(1) If it is also the or not in reality he is such. If in fact he is
surname of a general not a partner, he is subject to liability by the
partner, or
doctrine of estoppel (Art. 1825, NCC).
b. Nominal partner – is held out to the world
(2) Prior to the time as a partner but he has no real interest in
when the limited
the firm. He then becomes a partner by
partner became such,
the business had been estoppel.
carried on under a c. Dormant partner – one who does not take
name in which his active part in the business and is not known
surname appeared. or held out as partner (Art. 1834[2]).
(Article 1846, NCC) d. Silent partner – one who does not take any
Prohibition against No prohibition against active part in the business although he may
engaging in a business engaging in a business be known to be a partner.
e. Secret partner – one who does not take
(Qualification: An active part in the business although he may
industrial partner cannot be known to be partner (Art. 1834, NCC).
engage in business for
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Partner by estoppel – although not an actual 2018
partner, he has made himself liable as such Exception: The
by holding himself out as a partner or allows industrial partner can
another to hold him out as a partner. (Art. engage in business
1825, NCC). for himself, unless
the partnership
5. As to Actual Membership: expressly permits him
to do so.
a. Actual or real partner – is really a partner by As to Profits
agreement among the parties. According to the The industrial partner
agreement among the receives a just and
b. Partner by estoppel – is not a real or actual
partners; if none, pro-rata equitable share. (Art.
partner but he becomes liable as a partner
to his contribution. (Art. 1797, NCC)
because he holds himself out as a partner or 1797, NCC)
allows another to hold him out as a partner. As to Losses
(Art. 1825, NCC) First, the stipulation as to Exempted as to
losses; losses as between
6. As to Timing of Membership: partners; but is liable
If none, the agreement against third person
a. Original partner – one who is a member of a as to profits; and if none, without prejudice to
partnership at the time of its organization. pro rata to his reimbursement from
b. Incoming partner – one who becomes a contribution. (Art. 1797, the capital partners.
member of an existing partnership. (De Leon NCC) (Art. 1797, NCC)
and De Leon, Jr., Comments and Cases on
Partnership, Agency and Trusts, 2014, p.75) Partnership by estoppel
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Purple Notes
Mercantile Law
4. Things contributed to be sold – the b. To remove him WITHOUT JUST 2018CAUSE,
partnership bears risk of loss for there unanimous vote is necessary, including his
cannot be any doubt that the partnership own vote. (5 Paras, Civil Code of the Philippines,
was intended to be the owner; otherwise, 2016, p. 645)
the partnership could not effect the sale.
Things brought and appraised in the 2. When a partner has been appointed
inventory – the partnership bears the risk of manager after the partnership has been
loss because the intention of the parties was constituted:
to contribute to the partnership the price of
the things contributed with an appraisal in Scope of authority: He/she may execute all
the inventory (De Leon & De Leon, Jr., acts of administration but in case of opposition
Comments and Cases on Partnership, Agency and by the other partners, the partners owning the
Trusts, 2014, p.108) controlling interest may resort to voting for his
removal as manager. (Tai Tong Chuache vs.
Management of Partnership Insurance Commission, G.R. No. L055397, February
29, 1988)
No Agreement as to Manner of
Management: Revocation of his/her appointment:
1. All the partners shall be considered agents He/she may be removed with or without just
and whatever any one of them may do cause by the vote of the partners owning the
alone shall bind the partnership (Art. 1803[1], controlling interest. (Art. 1800, NCC)
NCC).
2. But if any of them should oppose the acts of This is because such partner is only an agent
the others, the decision of the majority shall whose authority may be revoked at any time by
prevail, and in case of a tie, the matter shall his principal, which is the partnership. (Art. 1920,
be decided by the parties owning the NCC)
controlling interest (Art. 1803, in relation to
Art. 1801, NCC). 3. When two or more partners have been
3. In case of important alteration in the appointed as managers:
immovable property of the partnership,
unanimous consent is required even if the a. When there is specification of their
same is useful to partnership (Art. 1803 [2], respective duties
NCC). b. When there is no specification of their
respective duties or there is no
When Manner of Management Has Been stipulation that one shall not act without
Agreed Upon: the consent of the others.
1. When a managing partner has been i. Each one may separately execute all
appointed: The managing partner may acts of administration (Art. 1801, NCC)
execute all acts of administration despite the ii. If there any opposition:
opposition of his partners unless he acts in 1. The decision of the majority of
bad faith. (Art. 1800, NCC) the managing partners shall
prevail (per head)
General Rule: Power is irrevocable without just 2. In case of tie, the decision of the
or lawful cause (Art. 1800, NCC) managing partner/s owning the
controlling interest shall prevail.
Exceptions: (Art. 1801, NCC)
a. To remove him for JUST CAUSE, vote of 4. When the manner of management has not
partners having controlling interest is been agreed upon:
necessary (Art. 1800, NCC);
Unanimous consent of all the managing partners 2. Right to associate with another person in his
shall be necessary for the validity of the acts, share. (Art. 1804, NCC)
and the absence or disability of any one of 3. Right to reimbursement for amounts
them cannot be alleged, except when there is advanced to the partnership and to
imminent danger of grave or irreparable injury indemnification for risks in consequence of
to the partnership (Art. 1802, NCC). management. (Art. 1796, NCC)
4. Right of access and inspection partnership
Where there is opposition by a managing books. (Art. 1805, NCC)
partner, imminent danger of grave or irreparable 5. Right to demand a formal account of
injury to the partnership is not applicable when partnership affairs (Art. 1809, NCC).
one of the managers is not absent or disabled, 6. Right to have the partnership dissolved
and in the exercise of his right to oppose, under certain conditions (Arts. 1830-1831,
NCC).
objects to the proposed act. (De Leon and De
Leon, Jr., Comments and Cases on Partnership,
Distribution of Profits and Losses
Agency and Trusts, 2014, p.148)
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2. In the Absence of Agreement Right to Enter Into 2018
Sub-Partnership
Property
As to Profits:
A partner may associate another person with
The profits shall be divided in proportion to their him in his share without the consent of the
respective contribution, except that in the case other partners (Art. 1804, NCC). The contract
of the industrial partner he shall receive such between them is called a sub-partnership.
share as may be just and equitable under the
circumstances (Art. 1797[2], NCC). The sub-partners are partners inter se.
However, the sub-partner does not become a
As to Losses: member of the original partnership in the
absence of the mutual assent of all the other
The partners share in the losses according to partners, even if the partner having an associate
their agreement. should be a manager (Art. 1804, NCC).
If there is NO AGREEMENT as to the share of He does not acquire the rights of the partner nor
each partner in the losses, but there is an is he liable for its debts.
agreement as to the share in the profits, the
loss shall be borne in the same proportion as Property Rights of a Partner:
that in which they share in the profits. (Art.
1797[1], NCC) 1. His rights in specific partnership property;
2. His interest in the partnership; and
The purely industrial partner shall not be liable 3. His right to participate in the management
for the losses. (Art. 1797[2], NCC) (Art. 1810, NCC)
The partners may agree to entrust to a third Nature of Right – A partner is co-owner with
person the designation of the share of each one his partners of specific partnership property.
in the profits and losses.
1. Contemplates tangible property;
Such designation may be impugned only when it 2. The specific partnership property belongs to
is manifestly inequitable. the partnership. The partners have no
actual interest in it until after dissolution.
(De Leon & De Leon, Jr., Comments and Cases
on Partnership, Agency and Trusts, 2014, p.153)
A partner cannot impugn the decision of a third The right over a specific partnership property is
person if: not subject to attachment or execution except if
it is based on a claim against the partnership
a. He has begun to execute said decision; or itself.
b. He has not impugned the same within a The rules on ―co-ownership in partnership‖ are
period of three months from the time he detailed in the subsequent paragraphs.
had knowledge thereof (not from the time
of making). (Art. 1798 [1], NCC) Right to possess – Has an equal right to
possess specific partnership property for
4. Designation by One Partner, Prohibited partnership purposes. He has no right to
possess such property for any other purpose
The designation of losses and profits cannot without the express or implied consent of the
be entrusted to one of the partners (Art. other partners. (De Leon & De Leon, Jr., Comments
1798[2], NCC). and Cases on Partnership, Agency and Trusts, 2014,
p.152)
Reason: The property belongs to the 1. The ―interest charged‖ may be redeemed or
partnership and not to the partners. His interest bought at any time BEFORE foreclosure.
in the partnership, however, is subject to legal 2. AFTER the foreclosure, it may still be bought
support. with separate property (by any one or more
of the partners) OR with partnership
Partner‟s Interest in the Partnership: property (with consent of all the other
partners). (De Leon & De Leon, Jr., Comments
A partner‘s interest in the partnership is his and Cases on Partnership, Agency and Trusts,
share of the profits and surplus. (Art. 1812, NCC) 2014, p.162)
Profit – the excess of returns over expenditure
in a transaction or series of transactions. (De Preferred Rights of Partnership Creditors
Leon & De Leon, Jr., Comments and Cases on
Partnership, Agency and Trusts, 2014, p.159) The creditors of the partnership shall be
preferred to those of each partner as regards
Surplus – refers to the assets of the the partnership property (Art. 1827, NCC).
partnership after debts and liabilities are paid
and settled and the rights of the partners among Assignment of Partner‟s Whole Interest in
themselves are adjusted. (Ibid.) the Partnership (Art. 1813, NCC)
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1. Right to Convey – Since a partner‘s interest In the absence of contrary 2018 stipulation,
in the partnership is his personal property, partners shall contribute equal shares to the
he has the right to convey such property. capital of partnership (Art. 1790, NCC);
2. Such conveyance does not of itself dissolve
the partnership. However, the non-assigning An industrial partner cannot be required to
partners may dissolve the partnership if they contribute capital without stipulation to that
so desire. effect.
3. The purchaser of a partner‘s interest may
secure from the court a decree of Debtor of Partnership
dissolution in two instances:
Every partner is a debtor of the partnership
a. After the termination of the specified for whatever he may have promised to
term or particular undertaking; or contribute thereto (Art. 1786, [1], NCC).
b. In case of partnership at will, when the
interest was assigned or when the 1. Contribution of Property:
charging order was issued. (Art. 1830,
NCC) a. To deliver to the partnership at the
time it was constituted or on the date
4. The assignee does not become a partner stipulated the property he has
without the concurrence of all of the other promised to contribute.
partners. Hence, during the continuance of b. To take care of the property before
the partnership, he does not acquire the its delivery to the partnership with
right: the diligence of a good father of a
a. To interfere in the management or family as a rule. (Art. 1163, NCC)
administration of the partnership c. To be liable for damages in case of
business or affairs; default.
b. To require any information or account of d. The partner shall also be liable for
partnership transactions; or the fruits of the specific and
c. To inspect the partnership books. determinate things, which he may
have promised to contribute from the
5. Rights of Assignee time they should have been
a. To receive in accordance with his delivered, without the need of any
contract the profits to which the demand (Art. 1786[2], NCC).
assigning partner would otherwise be e. He shall also be bound for warranty
entitled. in case of eviction with regard to
b. In case of fraud in the management of specific and determinate things,
the partnership, the assignee may avail which he may have contributed to
himself of the usual remedies. the partnership (Art. 1786[2], NCC).
c. In case of dissolution of partnership, the
assignee is entitled to receive his 2. Contribution of Money
assignor‘s interest and may require an
account from the date only of the last A partner who has undertaken to
account agreed to by all the partners. contribute a sum of money and fails to
(Art. 1813, NCC) do so becomes a debtor for the interest
and damages from the time he should
Obligations of Partners have complied with his obligation (Art.
1788, NCC).
A. Obligation to Contribute to Capital
Note that no demand is necessary. The
Proportion of Capital Due from Partners interest and damages accrue ipso jure.
In case of imminent loss of the business 1. Exclude the industrial partner from the
of the partnership, the partners can be firm; or
compelled to contribute an additional 2. Avail themselves of the benefits, which
share to the capital to save the venture. he may have obtained in violation of the
prohibition, with a right to damages in
Exception: Industrial partners (Art. either case. (Art. 1789, NCC)
1791, NCC).
By a Capitalist Partner
Effect of Refusal to Contribute: The
partner who refuses to contribute shall Prohibition: Prohibited from engaging in
be obliged to sell his interest to the business of same nature as that of
other partners, except if there is an partnership, unless there is a stipulation to
agreement to the contrary (Art. 1791, the contrary (Art. 1808, [1], NCC).
NCC).
Effect of Violation: He is required to
B. Obligation to Observe Good Faith bring to the common funds any profits
accruing to him from his transactions, and
1. Private Use of Partnership Money - If a shall personally bear all the losses (Art.
partner uses partnership money for his 1808[2], NCC)
own use, he is liable to pay interest and
damages to the partnership from the Equal Knowledge of Partnership Affairs:
time he converted said amount to his 1. Right to Examine Partnership Books: Every
own use. (Art. 1788[2], NCC). partner shall at any reasonable hour have
access to and may inspect and copy the
2. Individual Transactions in Connection partnership books. (Art. 1805, NCC)
with Partnership Affairs or Involving Use
of Firm Property: 2. Matters Affecting Partnership: Partners shall
render ON DEMAND true and full
a. Partner must account to the information of all things affecting the
partnership for any benefit, and partnership to any partner or the legal
hold as trustee for it any profits representative of any deceased partner or of
derived by him without the consent any partner under legal disability. (Art. 1806,
of the other partners from any NCC)
transaction connected with the
formation, conduct, or liquidation of
the partnership or from any use by Obligations of Partners among Themselves
him of its property. (Art. 1807, NCC).
b. He is holding any such profit only 1. Obligation with Respect to Contribution of
as a trustee for the partnership (Art. Property
1807, NCC). a. To contribute what was promised;
b. To answer for eviction in case the
Engagement in Individual Business: partnership is deprived of determinate
By an Industrial Partner: property contributed;
c. To answer to the partnership for the
Prohibition: Prohibited from engaging in fruits of the specific property, , from the
any kind of business, unless expressly time they should have been contributed
permitted by all partners (Art. 1789, NCC). to the time of actual delivery (Art. 1786,
NCC);
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Mercantile Law
d. To preserve the property with the Capitalist partner – the 2018 prohibition
diligence of a good father of a family extends only to any operation which is
pending delivery to the partnership (Art. of the same kind of business in which
1163, NCC); and the partnership is engaged unless there
e. To indemnify the partners for any is stipulation to the contrary (Art. 1808,
damages caused to it by the retention of NCC).
the same or by delay in its contribution.
(Art. 1788, NCC) 4. Obligation to Contribute Additional Capital
(Art. 1791, NCC)
2. Obligation With Respect to Contribution of
Money and Money Converted to Personal General Rule: A capitalist partner is not bound
Use to contribute to the partnership more than what
he agreed to contribute.
a. To contribute on the date due the
amount he has undertaken to contribute Exception: In case of imminent loss of the
to the partnership; business, and there is no agreement to the
b. To reimburse any amount he may have contrary, he is under obligation to contribute an
taken from the partnership coffers and additional share to save the venture.
converted to his own personal use;
c. To pay interest if he fails to pay his If he refuses to contribute, he shall be obliged
contribution on time or in case he takes to sell his interest in the partnership to the other
any amount from the common fund and partners.
converts to his own personal use; and
d. To indemnify the partnership for the Requisites before capitalist partners may be
damages caused to it by the delay in the obliged to sell his interest to the others:
contribution or the conversion of any
sum for his personal benefit. (Art. 1788, 1. Imminent loss of the business of the
NCC) partnership;
2. Majority of the capitalist partners are of the
3. Obligation Not to Engage in Other Business opinion that an additional contribution to
for Himself the common fund would save the business;
3. Capitalist partner refuses deliberately to
Industrial partner – cannot engage in contribute (not due to financial inability to
any business for himself unless the do so);
partnership expressly permits him to do 4. There is no agreement to the contrary. (De
so; and if he should do so, the capitalist Leon & De Leon, Jr., Comments and Cases on
partners may either exclude him from Partnership, Agency, and Trusts, 2014, p.102)
the firm or avail themselves of the 5. Obligation of Managing Partners who
benefits which he may have obtained in Collect Debt (Art. 1792, NCC)
the firm or avail themselves of the
benefits which he may have obtained in Where a person is separately indebted to the
violation of this provision, with a right to partnership and to the managing partner at the
damages in either case. (Art. 1789, NCC) same time, any sum collected by the managing
partner shall be applied to the two credits in
The prohibition is absolute and applies whether proportion to their amount, even though receipt
the industrial partner is to engage in the same has been given for the latter‘s own account only,
business in which the partnership is engaged or except where he received it entirely for the
in any kind of business.(De Leon & De Leon, Jr. account of the partnership credit only.
Comments and Cases on Partnership, Agency and
Trusts, 2014, p.100, citing Evangelista & Co. vs. Abad
Santos, G.R. No. L-31684 June 28, 1973)
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Those who, not being members of the 2018 on of
1. Act is not apparently for the carrying
partnership, include their names in the firm business of the partnership in the usual
name shall be subject to the liability of a partner way, unless authorized by other partners.
(Art. 1815[2], NCC). (Art. 1818[2], NCC)
2. Although the act is for apparently carrying
Liability for contractual obligations: on in the usual way the business of the
partnership, the partner so acting has no
Nature and Extent of liability: authority to act in the particular matter and
the person with whom he dealt with had
a. Pro-rata – The Liability of the partnership knowledge of such fact. (Art. 1818[1], NCC)
shall be equally divided among the partners, 3. Act is in contravention of a restriction on
including industrial ones. authority and the person he dealt with had
b. Subsidiary – Each partner shall be liable with knowledge of the restriction. (Art. 1818, last
his separate property after all the assets of par., NCC)
the partnership have been extinguished.
(Art. 1816, NCC) Acts requiring unanimous consent of all
partners (if business has not been
Stipulation against liability abandoned):
Any stipulation against the foregoing liability is: 1. Assignment of partnership property in trust
for creditors or on the assignee‘s promise to
Void, in so far as third persons are pay the debts of the partnership;
concerned; 2. Disposition of goodwill of the business;
3. Doing of any other act which would make it
Valid, as among the partners (Art. 1817, impossible to carry on the ordinary business
NCC). of partnership;
4. Confession of judgment;
Separate obligation by a partner – If a 5. Entering into a compromise concerning
partner undertakes in his individual capacity and partnership claim or liability;
on his individual credit to perform a partnership 6. Submission of partnership claim or liability
contract, he becomes primarily (not secondarily) to arbitration; and
liable for the same (Art. 1816, NCC). 7. Renunciation of a partnership claim (Art.
1818[3], NCC).
Right of representation
Conveyance of Real Property
General Rule: Every partner is an agent of the
partnership and his act binds the partnership if it Where title is in partnership‟s name: Can
is for apparently carrying on in the usual way be conveyed only in the partnership name (Art.
the business of the partnership. 1774, NCC).
1. The partner so acting has in fact no authority 1. If conveyance is in the usual course of
to act for the partnership in the particular business, the same is within the scope of
matter; and the partner‘s apparent authority, therefore
2. The person with whom he is dealing has binding upon the principal.
knowledge of the fact he has no such 2. If conveyed in partnership name but not
authority (Art. 1818, NCC). authorized, the partnership may recover the
property unless the same has been
Partnership is NOT BOUND by act of a conveyed by the grantee to a holder for
partner if: value without knowledge that the partner
has exceed his authority. (Art. 1819[1], NCC)
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3. His own property shall not be liable, unless 2018 term
a. By the termination of the definite
there is a stipulation to the contrary. (Art. or particular undertaking specified in the
1826, NCC) agreement;
b. By the express will of any partner, who
Principle of Delectus Personae must act in good faith, when no definite
term or particular undertaking is
A rule inherent in every partnership wherein no specified;
one can become a member of the partnership c. By the express will of all the partners
without the consent of all of the partners. who have not assigned their interests or
suffered them to be charged for their
This does not hold true, however, to a limited separate debts, either before or after
partner who is referred to as mere contributor the termination of any specified term or
under Art. 1866 of the NCC. He is practically a particular undertaking;
stranger in the limited partnership whose liability d. By the expulsion of any partner from the
is limited to his interest in the firm without any business bona fide in accordance with
right and power to participate in the such a power conferred by the
management and control of the business. (De agreement between the partners.
Leon & De Leon, Jr., Comments and Cases on
Partnership, Agency, and Trusts, 2014, p. 319) 2. Extrajudicial Dissolution – by act of the
parties WITH violation of their agreement
DISSOLUTION AND WINDING UP
In contravention of the agreement between
Dissolution, defined: the partners, where the circumstances do
not permit, dissolution under any other
It is the change in the relation of the partners provision of this article by the express will of
caused by any partner ceasing to be associated any partner at any time.
in carrying on of the business (Art.1828, NCC).
3. Dissolution by Operation of Law
Winding Up, defined:
a. By any event which makes it unlawful
It is the process of settling the partnership for the business of the partnership to be
business or affairs after dissolution. carried on or for the members to carry it
on in partnership;
Termination: b. When a specific thing, which a partner
had promised to contribute to the
It is the point when all partnership affairs are partnership, perishes before the
wound up or completed and is the end of the delivery; in any case by the loss of the
partnership life. It takes place after both thing, when the partner who contributed
dissolution and winding up have occurred. it having reserved the ownership
thereof, has only transferred to the
Causes of Dissolution: partnership the use or enjoyment of the
same; but the partnership shall not be
The parties may agree to expand the grounds dissolved by the loss of the thing when
provided under Article 1830 but NOT to DELIMIT it occurs after the partnership has
them. The causes are enumerated as follows: acquired the ownership thereof;
c. By the death of any partner;
1. Extrajudicial Dissolution – by act of the d. By the insolvency of any partner or of
parties WITHOUT violation of their the partnership;
agreement e. By the civil interdiction of any partner.
4. Judicial Dissolution
2. Partnership continues for a limited purpose Dissolution terminates all authority of any
– for the purpose of making good all partner to act for the partnership, except with
outstanding engagements, of taking and respect to the following:
settling accounts, and collecting all the
property, means and assets of the 1. Acts to wind up partnership affairs.
partnership existing at the time of its 2. Acts to complete transactions begun before
dissolution for the benefit of all interested. dissolution (Art. 1832, NCC)
(De Leon & De Leon, Jr., Comments and Cases
on Partnership, Agency and Trusts, 2014, p.215) In the above cases, the act of the partner binds
the partnership. If the assets of the partnership
3. Transaction of new business prohibited – are not sufficient to pay the liabilities, the
the partnership remains viable only for the partners can be held liable to the extent of their
purpose of winding up its affairs. (De Leon & separate properties. (Art. 1839, NCC)
De Leon, Jr., Comments and Cases on
Partnership, Agency and Trusts, 2014, p.216) Right of Partners upon Dissolution
Grounds for Dissolution by Decree of Court 1. If dissolution is WITHOUT violation of
partnership agreement:
On application by or for a partner:
a. To have partnership property applied to
1. A partner declared insane in any judicial discharge the liabilities of the
proceeding or shown to be of unsound partnership;
mind; b. To have surplus applied to pay in cash
2. A partner becomes in any other way the net amount owing to respective
incapable of performing his part of the partners.
partnership contract;
3. A partner has been guilty of such conduct as 2. If dissolution is due to expulsion of a
tends to affect prejudicially the carrying on partner, rights of expelled partner:
of the business; a. To be discharged from all partnership
4. A partner willfully or persistently commits a liability;
breach of the partnership agreement, or b. To receive in cash only the net amount
otherwise conducts himself in matters due him from the partnership.
relating to the partnership business that it is
not reasonably practicable to carry on the 3. If dissolution is due to violation of
business in partnership with him; partnership agreement
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Partner who has not caused dissolution Rescission on the ground of2018 fraud or
wrongfully (Innocent partner): misrepresentation of one of the parties
thereto, renders the party entitled to
a. To have partnership property applied for rescind, without prejudice to any other
payment of its liabilities right, entitled to: (Art. 1838, NCC)
b. To receive in cash his share in the surplus
c. To demand damages from the guilty partner 1. Right of lien or retention
for breach of the agreement 2. Right of subrogation
d. To continue the business under the same 3. Right of indemnification
name
e. To possess the partnership property should Although the law uses ―rescind‖ the
they decide to continue the business proper technical term should be
―annulled‖
Rights of a partner who has wrongfully caused
the dissolution (Guilty Partner): Rules in settling accounts between
1. If the business is NOT continued – partners after dissolution (Art. 1839, NCC)
a. To have the value of his interest less Partnership property insufficient to pay all
damages and liabilities
b. To be released from all existing and
future liabilities of the partnership (NCC, 1. Contributions of the partners shall be in
Art. 1837) accordance with their:
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Essential Requirements for Formation of 2018 of the
6. There is a change in the character
Limited Partnership business of the partnership;
7. There is a false or erroneous statement in
1. A certificate or articles of limited partnership the certificate;
which states the matters enumerated in 8. There is a change in the time as stated in
Article 1844, which must be signed and the certificate for the dissolution of the
sworn; partnership or for the return of a
2. Such certificate must be filed for record in contribution;
the Office of the Securities and Exchange 9. A time is fixed for the dissolution of the
Commission. partnership, or the return of a contribution,
no time having been specified in the
It is only the property of the partnership certificate; or
that can be pursued by the creditors. 10. The members desire to make a change in
any other statement in the certificate in
Execution of the Prescribed Certificate order that it shall accurately represent the
agreement among them.
A prime requisite to the formation of a limited
partnership, under Article 1844, is the execution The certificate must be signed and
of the prescribed certificate. This document, as sworn to by all the members, and an
a rule, must contain the matters enumerated in amendment substituting a limited
said article. Thus, a limited partnership cannot partner or adding a limited or general
be constituted orally. partner shall be signed also by the
member to be substituted or added, and
The statements required in the certificate must when a limited partner is to be
be true at the time the certificate and other substituted, the assigning limited
required papers are filed with the SEC. partner shall also sign the amendment.
(Art. 1865, NCC)
A strict compliance with the legal requirements
is not necessary. It is sufficient that there is The cancellation or amendment must be
substantial compliance in good faith. recorded in the SEC.
The firm becomes a general partnership only as Specific Rights of Limited Partners:
to its relation to third persons. It is, in form, still
a limited partnership subject to all the rules 1. To have partnership books kept at principal
applicable to a limited partnership. (De Leon & De place of business;
Leon, Jr., Comments and Cases on Partnership, 2. To inspect and copy at a reasonable hour
Agency and Trusts, 2014, p.285) partnership books or any of them.
3. To demand true and full information of all
In the following cases, a certificate shall things affecting the partnership;
be amended (Art. 1864, NCC): 4. To demand formal account of partnership
affairs whenever circumstances render it
1. There is a change in the name of the just and reasonable;
partnership or in the amount or character of 5. To ask for dissolution and winding up by
the contribution of any limited partner; decree of court;
2. A person is substituted as a limited partner; 6. To receive a share of profits or other
3. An additional limited partner is admitted; compensation by way of income;
4. A person is admitted as a general partner; 7. To receive return of his contribution
5. A general partner retires, dies, becomes provided the partnership assets are in
insolvent or insane, or is sentenced to civil excess of all its liabilities. (Art. 1851, NCC)
interdiction and the business is continued
under Article 1860; Obligations of a Limited Partner
7. Not to receive from a general partner or the Exception: Those liabilities, which he was
partnership on account of such claims any ignorant at the time he became a limited partner
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and which could not be ascertained from the Doctrine of Limited Capacity: 2018
certificate (Art. 1859, NCC).
Only such powers as are expressly granted to it
Prohibited Transactions by law and by its articles of incorporation
including others which are incidental to such
The limited partner is prohibited from: conferred powers, those reasonably necessary
to accomplish its purpose and those which may
1. Receiving or holding as collateral security be incidental to its existence
any partnership property;
2. Receiving any payment, conveyance, or Note: Can do things as the law asks or allows
release from liability if it will prejudice the it to do. If it does anything beyond, it shall be
right of third persons. (Art. 1854, NCC) considered as ULTRA VIRES, except when
necessary or incidental to the exercise of the
Order of Payment of Partnership Liabilities powers expressly conferred. (Sec. 44, RCC)
1. Those owing to creditors other than Revised Corporation Code, the general law
partners; governing corporation:
2. Those owing to limited partners in respect
to their share of the profits and other The general law under which a private
compensation by way of income on their corporation may be formed or organized.
contributions;
3. Those owing to limited partners in respect Mere consent of parties, not sufficient to
to their capital contribution; form a corporation:
4. Those owing to general partners other than
for capital and profits; Mere consent of the parties to form a
5. Those owing to general partners in respect corporation is NOT sufficient; the State must
to profits; give its consent either through a special law (in
6. Those owing to general partners in respect the case of government corporation) or a
to capital. (Art. 1863, NCC) general law (for a private corporation). (Sundiang
& Aquino, Reviewer on Commercial Law, 2019, p.
B. CORPORATION 209)
A corporation is an artificial being created by A corporation comes into existence upon the
operation of law, having the right of succession issuance of the Certificate of Incorporation. Only
and the powers, attributes and properties then will it acquire a juridical personality to sue
expressly authorized by law or incident to its and be sued, enter into contracts, hold or
existence. (Sec. 2, Revised Corporation Code [RCC]) convey property or perform any legal act, in its
own name. As a legal entity, it is possessed with
Attributes of the corporation: a personality separate and distinct from the
individual stockholders or members. The
1. It is an artificial being; properties it possesses belong to it exclusively
2. It is created by operation of law; as a separate juridical entity. The corporation is
3. It has the right of succession; and not likewise liable for debt, obligation or
4. It has only the powers, attributes and liabilities of its stockholder. (Sec. 19, RCC)
properties expressly authorized by law or
incident to its existence. (Sec. 2, RRC) CLASSES OF CORPORATION
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omission to comply with the conditions 6. 2018
Lack of elected Board of Directors;
precedent by which corporations de jure are 7. Irregularities with respect to the number,
created; organized with a colorable compliance term, place of residence, and meeting of
with the requirements of a valid law. Its the Board of Directors;
existence cannot be inquired collaterally, such 8. Some of the persons elected as directors
inquiry may be made by the Solicitor General in are disqualified; and
a quo warranto proceeding. (Sec. 19, RCC) 9. In general, when there is defect in the
organization of the corporation and not on
Requisites of a De Facto Corporation: its creation. (Chung Ka Bio vs. IAC, G.R. No.
71837, July 26, 1988)
1. A valid law under which the corporation is
organized; c. Corporation by estoppel:
2. A bona fide attempt on good faith to
incorporate; Exists when a group of persons assumes to act
3. An assumption of corporate powers; and as a corporation knowing it to be without
4. Good faith in claiming to be and doing authority to do so, and enters into a transaction
business as a corporation. (Ladia, The with a third person on the strength of such
Corporation Code of the Philippines, 2007, p. 69) appearance. It cannot be permitted to deny its
existence in an action under said transaction.
The filing of Articles of Incorporation and the (Sec. 20, RCC)
issuance of the certificate of incorporation are
essential for the existence of a de facto General Rule:
corporation. An organization not registered with
the Securities and Exchange Commission (SEC) All persons, not stockholders and members, who
cannot be considered a corporation in any assume to act as a corporation knowing it to be
concept, not even as a corporation de facto. without authority to do so shall be liable as
(Seventh Day Adventist Conference Church of general partners for all debts, liabilities, and
Southern Philippines, Inc. vs. Northeastern Mindanao damages incurred or arising as a result thereof.
Mission of Seventh Day Adventist, Inc., G.R. No. (Sec. 20, RCC)
150416, July 21, 2006)
Exceptions:
The officers and directors of a de facto
corporation are subject to all the liabilities and 1. When such persons are not trying to
penalties attending to officers and directors duly escape liability from the contract from
chosen by a corporation de jure, including the which they have benefited but rather are
liability under the criminal law, and their acts are the ones claiming from the contract.
binding when such acts would be within the (International Express vs. CA, G.R. No. 119002,
power of such officers of the corporation were October 19, 2000)
one de jure. (De Leon, Corporation Code) 2. While as a general rule, as person who has
contracted or dealt with an association in
Instances when there is a de facto such a way as to recognize its existence as
corporation: a corporate body is estopped from denying
the same in an action arising out of such
1. Failure to give the notice required by the transaction or dealing, yet this doctrine
statue for the meeting for its organization; may not be held to be applicable where
2. Failure to fix and limit the amount of capital fraud takes part in the said transaction.
stock of the company at the first meeting; (Salvatierra vs. Garlitos, G.R. No. L-11442, May
3. Failure to issue stocks; 23, 1958)
4. Informalities in the proceedings of An unincorporated association, which
corporate meetings; represented itself to be a corporation, will be
5. Lack of certificate of organization filed or estopped from denying its corporate capacity in
executed; a suit against it by a third person who relied in
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Requisites of a Non-stock corporation: b. Foreign corporations: 2018
1. It does not have a capital stock divided into Formed or organized or existing under any laws
shares; other than the Philippines and whose laws allow
2. No part of its income is distributable as Filipino citizens and corporations to do business
dividends to its members; and. in its own country. (Sec. 140, RCC)
3. It may be formed or organized for
charitable, religious, educational, 7. AS TO WHETHER THEY ARE FOR
professional, cultural, civic service, RELIGIOUS PURPOSE OR NOT
fraternal, literary, or similar purposes like
trade, industry, agricultural and like a. Ecclesiastical or religious corporations:
chambers or any combination thereof. (Sec.
86 and 87, RCC) Composed exclusively of ecclesiastics organized
for spiritual purposes or for administering
Purposes of non-stock corporations properties held for religious ones.
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management of the corporation is held liable. 2018 is a
5. The question of whether a corporation
(Guillermo vs. Uson, G.R. No. 198967, March 7, 2016) mere alter ego is purely one of fact. (Heirs of
Ramon Durano, Sr. vs. Uy, G.R. No. 136456,
Directors or trustees who willfully and knowingly October 24, 2000)
vote for or assent to patently unlawful acts of
the corporation or who are guilty of gross 6. The doctrine has res judicata effect. (Cesar
negligence or bad faith in directing the affairs of Villanueva, Philippine Corporate Law, 2001)
the corporation or acquire any personal or
pecuniary interest in conflict with their duty as 7. The doctrine could not be employed by a
such directors, or trustees, shall be liable jointly corporation to complete its claims against
and severally for all damages resulting another corporation and cannot therefore be
therefrom suffered by the corporation, its employed by the claimant who does not
stockholders or members and other persons. appear to be the victim of any wrong or
(Section 30, Revised Corporation Code; People‘s fraud. The court must be sure that the
Security, Inc. vs. Flores, G.R. No. 211312, December corporate fiction was misused, to such an
5, 2016) extent that injustice, fraud, or crime was
committed upon another, disregarding, thus,
Nature of the doctrine of piercing the veil his, her, or its rights. (Traders Royal Bank vs.
of corporate fiction: CA, G.R. No. 93397, March 3, 1997)
1. A corporation will not look upon as a 8. When the piercing doctrine is applied
separate legal entity, unless and until against a corporation in a particular case,
sufficient reason to the contrary appears. such corporation still possessed such
(Secosa vs. Heirs of Erwin Suarez Francisco, G.R. separate personality in any other case, or
No. 160039, June 29, 2004) with respect to other issues. (Tantoco vs.
Kaisahan ng mga Manggagawa sa La Campana
2. The doctrine of piercing the corporate veil is and CIR, G.R. No. L-13119, September 22, 1959)
an equitable doctrine developed to address
situations where the separate corporate 9. Must be shown to be necessary and with
personality is abused or used for wrongful factual basis. To disregard the separate
purposes. (PNB vs. Ritratto Group, Inc., G.R. juridical personality of a corporation, the
142616, July 31, 2001) wrongdoing must be clearly and
convincingly established. It cannot be
3. Piercing can be applied only if it can be presumed. (Symex Security Services, Inc. vs.
shown that the corporate fiction was the Rivera, Jr., G.R. No. 202613, November 8, 2017).
very tool used to commit fraud or to do
wrong, or the very means to avoid the Guidelines in piercing the corporate veil
consequences of one‘s wrongdoing, or to
evade one‘s liabilities. (PNB vs. Andrada 1. Mere ownership by a single stockholder or
Electric and Engineering Co., G.R. No. 142936, by another corporation of all or nearly all of
April 17, 2002) the capital stock of a corporation is not of
itself sufficient ground for disregarding the
4. It is essentially a judicial prerogative only to separate corporate personality. (PNB vs.
pierce the veil of corporate fiction being a Hydro Resources Contractors Corporation, G.R.
power belonging to the courts. A sheriff who No. 167530, March 13, 2013)
has ministerial duty to enforce a final and
executory decision cannot pierce the veil of 2. While ownership by one corporation of all or
corporate fiction by enforcing the decision a great majority of stocks of another
against the stockholders who are not parties corporation and their interlocking
to the action. (Cruz vs. Dalisay, Adm. Matter directorates may serve as indicia of control,
No. R-181-P, July 31,1987) by themselves, these circumstances are
insufficient to establish an alter ego
relationship that will justify the puncturing
Basic areas where piercing the corporate Grounds for application of the doctrine of
veil is applicable: piercing the veil of corporate fiction:
Reverse-piercing flows in the opposite direction The circumstance that a single stockholder
(of traditional corporate veil-piercing) and makes owns 40% of the outstanding capital stock
the corporation liable for the debt of the of two corporations, standing alone, is
shareholders. insufficient to establish identity. There must
be at least a substantial identity of
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stockholders for both corporations in order alone is not sufficient to justify2018
their being
to consider this factor to be constitutive of treated as one entity. If used to perform
corporate identity. (Kukan International Corp. legitimate functions, a subsidiary‘s separate
vs. Reyes, G.R. No. 182729, September 29, existence may be respected, and the liability
2010) of the parent corporation as well as the
subsidiary will be confined to those arising
Two identities not separate when is mere in their respective business.
continuation of the other: 3. Fiction of separate and distinct entities
cannot be disregarded there being no
The two entities cannot be deemed as indication that the second corporation is a
separate and distinct, where there is a dummy or serves as a client of the first
showing that one is merely the continuation corporate entity.
of the other. In fact, even a change in the 4. Piercing the veil cannot be availed of by one
corporate name does not make a new who is not a victim of a fraud or wrong.
corporation, whether effected by a special 5. Where real properties included in the
act or under a general law. It has no effect inventory of the estate of a decedent are in
on the identity of the corporation or on its the possession of and are registered in the
property, rights or liabilities. (Avon Dale name of the corporations, in the absence of
Garments, Inc. vs. NLRC, G.R. No. 117932, July
any cogency to shred the veil of corporate
20, 1995)
fiction, the presumption of the
Tests in determining the applicability of conclusiveness of said titles in favor of the
the doctrine: said corporations should stand undisturbed.
(Aranas vs. Mercado, G.R. No. 156407, January
15, 2014)
1. Control, not mere majority or complete
stock control, but complete domination, not
Effects of piercing the corporate veil:
only of finances but of policy and business
practice in respect to the transaction
1. If only one corporation is involved, to regard
attacked so that the corporate entity as to
its existence as an association of persons;
this transaction had at the time no separate
and
mind, will or existence of its own;
2. If two corporations participate, to merge
2. Such control must have been used by the
them, and consider them only as one entity.
defendant to commit fraud or wrong, to
(Remo vs. IAC, G.R. No. L-67626, April 1989);
perpetuate the violation of a statutory or
3. The corporation continues for other
other positive legal duty or dishonest and
legitimate objectives, the corporate
unjust act in contravention of plaintiff's legal
character not necessarily abrogated.
rights; and
(Reynoso IV vs. CA, G.R. Nos. 116124-25,
3. The aforesaid control and breach of duty November 22, 2010)
must proximately cause the injury or unjust
loss complained of. (Concept Builders Inc., vs. CAPITAL STRUCTURE
National Labor Relations Commission, G.R. No.
108734, May 29, 1996)
Stock corporations shall not be required to have
a minimum capital stock, except as otherwise
When not applied (when the veil cannot
provided specifically provided by special law.
be pierced):
(Sec. 12, RCC)
1. When the director has no participation to a NUMBER AND QUALIFICATIONS OF
representation made by the President, and INCORPORATORS
the execution of a promissory note with
―we‖ as maker has a reference to the Required Number of Incorporators
corporation and not to the directors.
2. The mere fact that a corporation owns all of
the stocks of another corporation, taken
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Scope of Voting Rights Subject to Founders‟ shares: 2018
Classification
Issued to the founders of the corporation and
The classification of shares, their corresponding may be given certain rights and privileges not
rights, privileges, or restrictions, and their stated enjoyed by the owners of other stocks. Where,
par value, if any, must be indicated in the however, the exclusive right to vote and be
articles of incorporation. Each share shall be voted for in the election of directors is granted,
equal in all respects to every other share, said right cannot exceed five (5) years from the
except as otherwise provided in the articles of date of incorporation: Provided, That such
incorporation and in the certificate of stock. (Sec. exclusive right shall not be allowed if its exercise
6, RCC) will violate the Anti Dummy Law, Foreign
Investment Act of 1991, and other pertinent
Preferred and redeemable shares may be laws. (Sec. 7, RCC)
deprived of voting rights
Redeemable shares
No share may be deprived of voting rights
except those classified and issued as ―preferred‖ Those which may be issued by the corporation
or ―redeemable‖ shares, unless otherwise when expressly so provided in the articles of
provided in this Code: Provided, That there shall incorporation and certificate of stock
always be a class or series of shares with representing said shares, and which may be
complete voting rights. (Sec. 6, RCC) purchased or taken up by the corporation upon
the expiration of a fixed period, regardless of
Note: The following shares may also be the existence of unrestricted retained earnings.
deprived of voting rights: (Sec. 8, RCC)
A promoter, although he may assume to act for A subscription of shares in a corporation still to
and on behalf of a projected corporation and not be formed shall be irrevocable for a period of at
for himself, will be held personally liable on least six (6) months from the date of
contracts made by him for the benefit of a subscription, unless all of the other subscribers
corporation he intends to organize. The personal consent to the revocation, or the corporation
liability continues even after the formation of the fails to incorporate within the same period or
corporation unless there is novation or other within a longer period stipulated in the contract
agreement to release him from liability. As such, of subscription.
the promoter may do either of the following
options: No pre-incorporation subscription may be
revoked after the articles of incorporation is
1. He may make a continuing offer on behalf of submitted to the Commission. (Sec. 60, RCC)
the corporation, which, if accepted after
incorporation, will become a contract. In this Post-incorporation subscription:
case, the promoter does not assume any
personal liability, whether or not the Subscription entered into after incorporation.
corporation will accept the offer;
2. He may make a contract at the time binding CONSIDERATION FOR STOCKS
himself, with the understanding that if the
corporation, once formed, accepts or adopts Consideration for the issuance of stock may be
the contract, he will be relieved of (OIL CUPSO):
responsibility; or
3. He may bind himself personally and assume 1. Outstanding shares exchanged for stocks in
responsibility of looking to the proposed the event of reclassification or conversion;
corporation, when formed, for
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2. Previously incurred indebtedness of the corporation and its stockholders. 2018 (Lanuza vs.
corporation; Court of Appeals, G.R. No. 131394, March 28, 2005)
3. Labor performed for or services actually
rendered to the corporation; Contents of Articles of Incorporation:
4. Actual cash paid to the corporation;
5. Amounts transferred from unrestricted 1. Name of corporation;
retained earnings to stated capital; 2. Purpose/s, indicating the primary and
6. Property, tangible or intangible, actually secondary purposes;
received by the corporation and necessary 3. Place of principal office (must be within the
or convenient for its use and lawful Philippines);
purposes at a fair valuation equal to the par 4. Term for which the corporation is to exist (if
or issued value of the stock issued; it did not elect perpetual existence);
7. Shares of stock in another corporation; 5. Names, nationalities and residences of
and/or incorporators;
8. Other generally accepted form of 6. Number of directors (number of directors
consideration. (Sec. 61, RCC) shall not be more than 15, number of
trustees may be more than 15);
Limitations concerning the consideration 7. Names, nationalities, and residences of the
for stocks: persons who shall act as directors of
trustees until the first regular ones are duly
1. Stocks shall not be issued for a elected and qualified;
consideration less than the par or issued 8. If it be a stock corporation, amount of
price thereof. authorized capital stock, number of shares
2. Where the consideration is other than and in case of par value stock corporations,
actual cash, or consists of intangible the par value of each shares, names,
property such as patents or copyrights, the nationalities, residences, and the amount
valuation thereof shall initially be subscribed and paid by each on his
determined by the stockholders or the subscription, and if some or all of the shares
board of directors, subject to the approval are without par value, such fact must be
of the SEC. stated;
3. Shares of stock shall not be issued in 9. If it be a non-stock corporation, the amount
exchange for promissory notes or future of its capital, the names, nationalities and
service. (Sec. 61, RCC) residences of the contributors and the
amount contributed by each.
NOTE: The issued price of no-par value shares 10. Such other matters consistent with law and
may be fixed in the articles of incorporation or which the incorporators may deem
by the board of directors pursuant to authority necessary and convenient.
conferred by the articles of incorporation or the 11. An arbitration agreement may be provided
bylaws, or if not so fixed, by the stockholders in the articles of incorporation pursuant to
representing at least a majority of the Section 181 of the Code. (Sec. 13, RCC)
outstanding capital stock at a meeting duly
called for the purpose. (Sec. 61, RCC) Non-amenable items of Articles of
ARTICLES OF INCORPORATION Incorporation:
Nature and Function of Articles of 1. The names and address of incorporators and
Incorporation: incorporating directors or trustees.
2. The name of treasurer originally or first
It is one that defines the charter of the elected by the subscribers or members to
corporation and the contractual relationships act as such until his successor has been duly
between the State and the corporation, the elected and qualified.
stockholders and the State, and between the
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Mercantile Law
reference to an article in the market, because of 2018 which
Guarantee Corporation (two agencies
geographically or otherwise descriptive, might can grant juridical personality).
nevertheless have been used so long and so
exclusively by one producer with reference to ELECTION OF DIRECTORS OR TRUSTEES
his article that, in that trade and to that branch
of the purchasing public, the word or phrase has Except when the exclusive right is reserved for
become to mean that the article was his holders of founders‘ shares, each stockholder or
product. (Lyceum of the Philippines vs. CA, G.R. No. member shall have the right to nominate any
101897. March 5, 1993) director or trustee who possesses all of the
qualifications and none of the disqualifications
Note: Parties organizing a corporation must set forth in the Code. (Sec. 23, RCC)
choose a name at their peril; and the use of a
name similar to one adopted by another Quorum
corporation, whether a business or a nonprofit
organization, if misleading or likely to injure in At all elections of directors and trustees, there
the exercise of its corporate functions, must be present the owners of majority of the
regardless of intent, may be prevented by the outstanding capital stock, or if there be no
corporation having a prior right, by a suit for capital stock, a majority of the members entitled
injunction against the new corporation to to vote. Presence for purposes of quorum may
prevent the use of the name. (Ang Mga Kaanib sa either be:
Iglesia ng Diyos kay Kristo Hesus, H.S.K. sa Bansang
Pilipinas, Inc. vs. Iglesia ng Diyos kay Kristo Hesus, 1. In person;
Haligi at Suhay ng Katotohanan, G.R. No. 137592, 2. Through a representative by written proxy;
December 21, 2001)
3. When authorized in the by-laws or by a
REGISTRATION, INCORPORATION AND
Majority of the Board:
COMMENCEMENT OF CORPORATE
a. Through remote communication; or
EXISTENCE
b. In absentia (Sec. 23, RCC).
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EFFECTS OF THE NON-USE OF CORPORATE powers are not enumerated 2018therein.
CHARTER AND CONTINUOUS IN (Corporation Code of the Philippines, Aquino,
OPERATION 2011, p. 318)
1. Express powers – powers expressly 1. To sue and be sued in its corporate name
provided by the Corporation Code, (Sec. 35, RCC);
applicable special laws, administrative
regulations, and the Articles of Incorporation This power is exercised by the corporation
of the corporation. through the Board. Hence, the Supreme
Court now requires corporations to attach a
Note: The powers expressly provided for in copy of the Board Resolution authorizing
the Corporation Code are deemed part of the filing of the complaint or petition.
the Articles of Incorporation even if such (Aquino, 2011, p. 322)
A document may be considered valid and 8. To enter into a partnership, joint venture,
binding even in the absence of a seal. merger, consolidation, or any other
(Ibid.) commercial agreement with natural and
juridical persons;
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The power to enter into a partnership is 5. Power to sell or dispose 2018 of all or
an additional power granted by the substantially all corporate assets (Sec. 39)
Revised Corporation Code. 6. Power to acquire own shares (Sec. 40)
7. Power to invest corporate funds in another
9. To make reasonable donations, including corporation or business (Sec. 41)
those for the public welfare or for hospital, 8. Power to declare dividends (Sec. 42)
charitable, cultural, scientific, civic, or similar 9. Power to enter into management contracts
purposes: Provided, that no foreign (Sec. 43)
corporation shall give donations in aid of
any political party or candidate or for POWER TO EXTEND OR SHORTEN
purposes of partisan political activity; CORPORATE TERM
Under the Old Corporation Code, both Requirement and procedure in the
domestic and foreign corporations are exercise of power to extend or shorten
prohibited from giving donations in aid corporate term (Sec. 36, RCC)
of any political party or candidate or for
purposes of partisan political activity. 1. Approval by the majority vote of the board
The Revised Corporation Code expressly of directors or trustees.
limited the prohibition to foreign 2. Ratification by the stockholders
corporations. representing at least 2/3 of the outstanding
capital stock or 2/3 of the members in case
10. To establish pension, retirement, and other of non-stock corporation.
plans for the benefit of its directors, 3. Written notice of the proposed action and
trustees, officers and employees; and of the time and place of the meeting shall
11. To exercise such other powers as may be be addressed to each stockholder or
essential or necessary to carry out its member at his place of residence as shown
purpose or purposes as stated in the articles on the books of the corporation and be
of incorporation. given by mail, through personal service or
electronically, if allowed in the by-laws or
SPECIFIC POWERS, THEORY OF SPECIFIC done with the consent of the stockholder.
CAPACITY 4. Any dissenting stockholder may exercise his
appraisal right;
Theory of specific capacity: 5. A copy of the of the amended articles of
incorporation shall be submitted to the SEC
No corporation under the Corporation Code shall for its approval;
possess or exercise any corporate powers,
except those conferred by law, its articles of Note: In case of extension, the same cannot be
incorporation, those implied from express made earlier than 3 years prior to the original or
powers, and those as are necessary or incidental subsequent expiry date unless there are
to the exercise of the powers so conferred. (Sec. justifiable reasons for an earlier extension.
44, RCC) Moreover, the same must be made during the
lifetime of the corporation. (Sec. 11, RCC)
Specific powers: The shortening of the corporate term may be
designed to have the effect of dissolving the
1. Power to extend or shorten corporate term corporation
(Sec. 36)
The dissolution takes effect on the date of
2. Power to amend the Articles of
the approval of the Amended Articles of
Incorporation (Sec. 35[d])
Corporation by the SEC
3. Power to increase or decrease capital stock
The three-year liquidation period shall
or incur, create, increase bonded
likewise be reckoned from the date of the
indebtedness (Sec. 37)
SEC approval of the Amended Articles of
4. Power to deny pre-emptive rights (Sec. 38)
Incorporation (Aquino, 2011, p. 335)
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(SEC Interim Guidelines for Registration of Bonds, 2018
3. In case the right is denied in the articles of
SRC Rule 8 and 12) incorporation or an amendment thereto.
(Sec. 38, RCC)
Bonded indebtedness, defined:
Note: Exceptions nos. 1 and 2 will not apply to
A long term indebtedness secured by real or close corporations:
personal property (corporate assets).
1. The corporation shall not list in any stock
Note: Not all borrowings made by a corporation exchange or make any public offering of
need the approval of the stockholders. Only any of its stock of any class (Sec. 95, RCC);
bonded indebtedness requires such approval. 2. The pre-emptive right of stockholders in
(Sec. 37, RCC) close corporations shall extend to all stock
to be issued, including reissuance of
Requirements before the exercise of the treasury shares, whether for money,
power to incur, create, or increase bonded property or personal services, or in
indebtedness: payment of corporate debts, unless the
articles of incorporation provide otherwise.
Same with the power to increase or decrease (Sec. 101, RCC).
capital stock.
POWER TO SELL OR DISPOSE OF
POWER TO DENY PRE-EMPTIVE RIGHTS CORPORATE ASSETS
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right to compel the corporation to purchase their 2018
POWER TO DECLARE DIVIDENDS
share at their fair value which shall not be less
than par or issued value when the corporation Dividends, defined, condition for
has sufficient assets in its books to cover its declaration:
debts and liabilities exclusive of capital stock.
(Sec. 104, RCC) Part or portion of the profits of the enterprise
which the corporation sets apart for ratable
The requirement of unrestricted retained distribution among the holders of the capital
earnings to cover the shares is based on the stock.
trust fund doctrine which means that the
capital stock, property and other assets of a Dividends are corporate profits allocated,
corporation are regarded as equity in trust for lawfully declared and ordered by the directors to
the payment of corporate creditors. The reason be paid to the stockholders on demand or at a
is that creditors of the corporation are preferred fixed time. (Aquino, 2011, p. 376, citing SEC
over the stockholders in the distribution of Memorandum Circular No. 11, Series of 2009)
corporate assets. There can be no distribution of
assets among stockholders without first paying Requirements for dividend declaration:
corporate creditors. Hence, any disposition of
corporate funds to the prejudice of creditors is 1. Unrestricted retained earnings;
null and void. (Boman Environmental Development 2. Resolution of the board; and,
Corporation vs. CA, G.R. No. 77860, November 22, 3. If stock dividends are declared, there must
1988) be resolution of the board with the
concurrence of the 2/3 of the outstanding
POWER TO INVEST CORPORATE FUNDS IN capital. (Aquino, Philippine Corporate Law
ANOTHER CORPORATION OR BUSINESS Compendium, 2011, p. 372)
Any dissenting stockholder shall have the General Rule: The presence of unrestricted
option to exercise his appraisal right. retained earnings can be determined only at the
Only approval by majority of the Board of end of the fiscal year, thus, there can be no
Directors or Trustees is required if dividend declaration for profits in a fiscal year
investment is in line with the corporation‘s that has not yet expired.
primary purpose. (Ibid.)
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members of the Board of Directors of the which are merely ultra vires. 2018 The former
managed corporation. Ibid.) contemplates the doing of an act which is
contrary to law, morals, or public order, or
In cases (a) or (b), the management contract contravene some rules of public policy or public
must be approved by the stockholders of the duty, and are, like similar transactions between
managed corporation owning at least two-thirds individuals, void. They cannot serve as basis of a
(2/3) of the total outstanding capital stock court action, nor acquire validity by
entitled to vote or the members in case of a performance, ratification, or estoppel. Mere ultra
non-stock corporation. Ibid.) vires acts, on the other hand, or those which are
not illegal and void ab initio, but are not merely
within the scope of the articles of incorporation,
General Rule: No management contract shall
are merely
be entered into for a period longer than five (5)
years for any one (1) term.
voidable and may become binding and
Exception: Service contracts or operating enforceable when ratified by the stockholders.
(Pirovano vs. De La Rama Steamship, G.R. No. L-
agreements which relate to the exploration,
5377, December 29, 1954)
development, exploitation, or utilization of
natural resources that may be entered into for
such periods as may be provided by pertinent Thus, even though a person did not give
laws or regulations. Ibid.) another person authority to act on his or her
behalf, the action may be enforced against him
Maximum term or her if it is shown that he or she ratified it or
allowed the other person to act as if he or she
The maximum term prescribed under Sec. 43 is had full authority to do so. (University of Mindanao
vs BSP G.R. No. 194964-65, January 11, 2016)
five (5) years. However, it was intended that
this period may be subject to renewal.
Applicability of ultra vires doctrine:
A period is provided for to give the stockholders
1. Acts done beyond the powers of the
the opportunity to review the management
corporation as provided in the law or its
contract and to decide if the contract will be
articles of incorporation;
continued. (Aquino, 2011, p. 393)
2. Acts or contracts entered into in behalf of a
LIMITATIONS ON CORPORATE POWERS
corporation by persons who have no
corporate authority
Ultra vires act, defined:
Note: This is technically ultra vires acts of
It refers to one which is not within the corporate
officers and not of the corporation.
powers conferred by the Corporation Code or
articles of incorporation or not necessary or
3. Acts or contracts, which are per se illegal as
incidental in the exercise of the powers so
being contrary to law. (Villanueva, 2013, p.
conferred. (Lopez Realty, Inc. vs. Florentina
176)
Fontecha, G.R. No. 76801, August 11, 1995)
Consequences of ultra vires acts:
Unauthorized acts that are merely beyond the
powers of the corporation under its articles of 1. On the corporation: The franchise or
incorporation are not void ab initio. certificate of incorporation may be
suspended or revoked, after proper notice
Ultra vires acts merely voidable; subject to and hearing, for serious misrepresentation
ratification as to what the corporation can do or is
doing to the great damage or prejudice of
A distinction should be made between corporate the general public.
acts or contracts which are illegal and those
a. If the contract is fully executed on both All stocks issued by the corporation are
sides, the contract is effective and the presumed equal with the same privileges and
courts will not interfere to deprive either liabilities, provided that the Articles of
party of what has been acquired under it. Incorporation is silent on such differences.
b. If the contract is executory to both sides, (Commissioner of Internal Revenue vs. CA, et al.,
as a rule, neither party can maintain an G.R. No. 108576, January 20, 1999)
action for its non-performance
(unenforceable). TRUST FUND DOCTRINE
c. If the contract is executory on one side
and has been fully performed on the The capital stock, property and other assets of
other, the party who has received benefits the corporation are regarded as equity in trust
from the performance is estopped in for the payment of the corporate creditors. The
claiming that the contract is ultra vires subscribed capital stock of the corporation is a
(Aquino, 2011, p. 397) trust fund for the payment of debts of the
4. A corporation that is engaged in ultra vires corporation which the creditors have the right to
business is liable for torts committed by its look up to satisfy their credits. Corporation may
agents within their authority in the course not dissipate this and the creditors may sue
of that business. (Aquino, 2011, p. 397) stockholders directly for the unpaid subscription.
5. If a corporation acted outside its authority (CIR vs. Court of Appeals, G.R. No. 108576, January
in taking or holding title to property, the 20, 1999)
validity of the Torrens Certificate of Title
cannot be questioned on the ground that The requirement of unrestricted retained
the corporation was without authority or earnings to cover the shares is based on the
exceeded its authority in taking or holding trust fund doctrine which means that the capital
the property. (Aquino, 2011, p. 397) stock, property and other assets of a corporation
are regarded as equity in trust for the payment
Party who received benefits estopped to of corporate creditors. The reason is that
set up the defense that the contract is creditors of a corporation are preferred over the
ultra vires stockholders in the distribution of corporate
assets. There can be no distribution of assets
Where the contract is executed on one side among the stockholders without first paying
only, and has been fully performed on the other, corporate creditors. Hence, any disposition of
the courts differ as to whether an action will lie corporate funds to the prejudice of creditors is
on the contract against the party who has null and void. Creditors of a corporation have
received benefits of performance under it. The the right to assume that so long as there are
party who has received benefits from the outstanding debts and liabilities, the board of
performance is estopped to set up that the directors will not use the assets of the
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Mercantile Law
corporation to purchase its own stock. (Turner vs. In some cases, corporate officers 2018
like the
Lorenzo Shipping Corporation, G.R. No. 157479, President can also bind the corporation. The
November 24, 2010) authority of such individuals to bind the
corporation is generally derived from:
Corporate Powers, How Exercised
1. Law,
Who exercise corporate powers? 2. Corporate by-laws,
3. Authorization from the board, either
1. The shareholders expressly or impliedly by habit, custom or
2. The Board of Directors acquiescence in the general course of
3. The officers business. (Sundiang & Aquino, Reviewer on
Commercial Law, 2019, p. 241)
Corporate powers, how exercised by the
shareholders Corporate officer or agent may bind the
corporation; powers which he can
By exercising their right to vote in the following: exercise:
a. Election or removal of directors/trustees;
b. Management contract; A corporate officer or agent may represent and
c. Adoption, amendment or repeal of by-laws; bind the corporation in transactions with third
d. Fixing the issued price of no-par value persons to the extent that the authority to do so
shares, if Board of Directors (BOD) is not has been conferred upon him, and these
authorized by the articles of incorporation; include:
e. Amendment of articles of incorporation;
f. Ratification of certain acts of directors; 1. Powers that, in the usual course of the
g. Extension or shortening of corporate term; particular business, are incidental to those
h. Increase or decrease of capital stock; expressly provided,
i. Incur, create or increase in bonded 2. Powers that may be implied from the
indebtedness; powers intentionally conferred,
j. Denial of pre-emptive right; 3. Powers added by custom and usage, as
k. Sale, lease, exchange, mortgage, pledge or usually pertaining to the particular officer or
disposal of all or substantially all of agent,
corporate assets; 4. Such apparent powers as the corporation
l. Investment of corporate funds in another has caused person dealing with the officer
corporation or business or for any other or agent to believe that it has conferred.
purpose other than the primary purpose (University Of Mindanao, Inc., vs. Bangko Sentral
m. Issuance of stock dividends; Ng Pilipinas, et al., G.R. No. 194964-65, January
n. Merger or consolidation. (Sundiang & Aquino, 11, 2016)
Reviewer on Commercial Law, 2019, p. 243)
Officials who can sign the verification and
certification even without a board
Corporate powers, how exercised by the resolution:
Board of Directors:
1. The Chairperson of the Board of Directors,
The Board of Directors exercises the powers of 2. the President of the corporation,
the corporation. Generally, the Board alone, 3. the General Manager or Acting General
without the concurrence of the stockholders, Manager,
cannot overrule the directors in its exercise of 4. Personnel Officer, and
the corporate powers. (Sec. 22, RCC) 5. Employment Specialist in a labor case.
(Cagayan Valley Drug Corporation vs. CIR, G.R.
Corporate powers, how exercised by the No. 151413, February 13, 2008)
officers:
Three (3) ways by which a person may be Note: A stockholder may compel the
a stockholder: corporation to declare dividends when the
unrestricted retained earnings exceed 100% of
1. Contract of subscription with the its paid up capital, subject to certain exceptions
corporation; provided by law. (Sec. 42, RCC)
2. Purchase of treasury shares from the
corporation; and PARTICIPATION IN MANAGEMENT
3. Purchase or acquisition of shares from
existing stockholders. (Ladia, The Corporation Right to vote
Code of the Philippines, Annotated, 2015, p. 339
citing Ballantine)
Stockholders and members may vote in person
or by proxy in all meetings of stockholders or
FUNDAMENTAL RIGHTS OF A
members. (Sec. 57, RCC)
STOCKHOLDER AND MEMBER
1. Participation in the management of the The right to vote is a right that is inherent in
corporate affairs by exercising their right to and incidental to the ownership of corporate
vote and be voted upon either personally or stock, and as such, it is a property right.
by proxy
2. Right to enter into a voting trust agreement This right is generally vested with the legal
3. Right to receive dividends and to compel owner of the shares. Whoever owns the shares
their declaration if warranted as appearing in the books of the corporation
4. Right to transfer shares of stock subject only exercises, therefore, the right to vote. (Ladia, The
Corporation Code of the Philippines, Annotated, 2007,
to reasonable restrictions such as options
p. 326)
and preferences as may be allowed by law
inclusive of the right of the transferee to
Limitations on the right to vote:
compel the registration of the transfer in the
books of the corporation
1. Where the Articles of Incorporation
5. Right to be issued a certificate of stock for
provides for classification of shares
fully paid-up shares
pursuant to Sec. 6, non-voting shares are
6. Pre-emptive rights
not entitled to vote except as provided
7. Appraisal right
under the same section.
8. Right to institute derivative suit
2. Preferred or redeemable shares may be
9. Right to recover shares of stock unlawfully
deprived of the right to vote unless
sold for delinquency as may be allowed
otherwise provided in the RCC.
10. Right to inspect the books of the
3. Fractional shares of stock cannot be voted
corporation, subject to limitations
unless they constitute at least one full
11. Right to be furnished by the most recent
share.
financial statements
4. Treasury shares have no voting rights as
12. Right to be issued a new stock certificate in
long as they remain in the treasury;
lieu of the lost or destroyed one
5. Holders of stock declared delinquent by the
13. Right to have the corporation dissolved
board of directors for unpaid subscription
14. Right to participate in the distribution of the
are not entitled to vote or a representation
assets of the corporation upon dissolution
at any stockholder‘s meeting;
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6. A transferee of stock cannot vote if his Voting trust, defined 2018
transfer is not registered in the stock and
transfer book of the corporation; and, An agreement whereby one or more
7. A stockholder is still entitled to vote even if stockholders of a stock corporation may create a
the shares are mortgaged or pledged voting trust for the purpose of conferring upon a
unless he authorizes the creditor in writing trustee or trustees the right to vote and other
to vote. (Sundiang & Aquino, Reviewer on rights pertaining to the shares for a period not
Commercial Law, 2017, p. 249) exceeding 5 years at any one time. (Sec. 58,
RCC)
Representative Voting:
Limitations on the voting trust:
1. Proxy
2. Trust agreement 1. Cannot be entered into for a period
exceeding 5 years at any 1 time except
Proxy, defined when it is a condition in a loan agreement
but said contract shall automatically expire
A proxy is properly the authority given by upon full payment of the loan.
the stockholder or member to another to 2. The agreement must not be used for the
vote for him at a stockholders‘ or members‘ purpose of fraud.
meeting. 3. It must be in writing and notarized and
specify the terms and conditions thereof.
The term is also used to refer to the 4. A certified copy of the agreement must be
instrument or paper which is evidence of the filed with the corporation and with the SEC.
authority of an agent or the holder thereof 5. The agreement shall be subject to
to vote for and in behalf of the stockholder examination by any stockholder of the
or member. (Ladia, The Corporation Code of the corporation.
Philippines, Annotated, 2007, p. 328) 6. Unless expressly renewed, all rights granted
in the agreement shall automatically expire
Proxy, allowed in the exercise of voting at the end of the agreed period.
rights by the stockholder/member
Note: A corporation cannot enforce the voting
Stockholders and members may vote in person trust agreement executed by the stockholder
or by proxy in all meetings of stockholders or and trustees. Voting is personal in nature for
members. (Sec. 57, RCC) those who are qualified and willing to vote. The
voting trust is personal to the stockholder and
Characteristics of a proxy: trustees. (NIDC vs. Aquino, G.R. No. L-34192 and
G.R. No. L-34213, June 30, 1988)
1. It shall be in writing
2. It shall be signed and filed by the Powers or rights of voting trustees:
stockholder or member in any form
authorized in the by-laws. 1. Shall possess the right to vote and other
3. It shall be received by the corporate rights pertaining to the shares so transferred
secretary within. Reasonable tome before and registered in his or their names subject
the schedule meeting; to the terms and conditions of and for the
4. It shall be valid only for the meeting for period specified in the agreement.
which it is intended, unless otherwise 2. May vote in person or by proxy unless the
provided in the proxy; and agreement provides otherwise.
5. No proxy shall be valid and effective for a 3. The trustee may exercise the rights of
period longer than five (5) years at any one inspection of all corporate books and
time. (Sec. 57, RCC) records.
4. The trustee is the legal title holder or owner
of the shares so transferred under the
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b. where a majority of the members of the 1. Right to dividends 2018
board of directors of the managing 2. Right of appraisal
corporation also constitute a majority of 3. Right to inspect
the members of the board of directors of 4. Pre-emptive right
the managed corporation (Sec. 43, RCC) 5. Right to vote
6. Right of first refusal
13. Delegation of the power to amend, repeal or
adopt new by-laws to the Board of Directors Right to dividends, defined
(Sec. 47, RCC)
14. Merger or consolidation (Sec. 76, RCC) The right of the stockholder to demand payment
15. Amendment to the plan of merger or of dividends after board declaration.
consolidation (Sec. 76, RCC)
16. Adoption of plan or distribution of assets of Right to dividends
non-stock corporation (Section 94, RCC)
17. Voluntary dissolution where creditors are Stockholders are entitled to dividends pro
affected (Sec. 135, RCC) rata based on the total number of shares
that they own and not on the amount paid
Cases when stockholders‟ action is for the shares.
required by cumulative voting: The right of the stockholders to be paid
dividends vest as soon as they have been
In the election of Directors, a stockholder may lawfully and finally declared by the board of
cast as many votes as there are number of Directors. From that time, the corporation
directors to be elected multiplied by the number becomes indebted to each stockholder who
of the shares owned and either: may recover the debt, as an ordinary
unsecured creditor may do, against the
1. Give all the votes to one (1) candidate; or corporation.
2. Distribute them among as many candidates
as he may see fit. (Sec. 23, RCC) In case of transfer of shares, dividends
declared before the transfer shall belong to
Manner of Voting; Voting Trust
the transferor while those declared after the
transfer shall belong to the transferee.
Stockholders or members may vote in all
(Ladia, The Corporation Code of the Philippines,
meetings of stockholders or members: Annotated, 2007, p. 282)
1. In person
2. By proxy Right of appraisal, defined:
3. Through remote communication
4. In absentia (Sec. 57, RCC) It is the right of a stockholder who dissents from
certain corporate actions to demand payment of
Note: Voting through remote communication or
the fair value of his or her shares. (Turner vs.
in absentia shall be allowed only when so
Lorenzo Shipping Corporation, G.R. No. 157478,
authorized in the by-laws or by majority of the November 24, 2010)
Board of Director or Trustees, except in
corporations vested with public interest where Instances when the right of appraisal may
voting through remote communication or in be exercised:
absentia is available despite absence of
provision in the by-laws allowing the same. (Sec. 1. In case an amendment to the articles of
58, in relation to Sec. 49, RCC)
incorporation has the effect of changing or
restricting the rights of any stockholder or
PROPRIETARY RIGHTS
class of shares, or of authorizing preferences
in any respect superior to those of
Proprietary rights of stockholders and
outstanding shares of any class, or of
members:
In case the fair value cannot be agreed upon by Distinction of the right of inspection of a
the withdrawing stockholder and the stockholder and that of a director as to
corporation, it shall be determined and access to highly qualified sensitive and
appraised by three (3) disinterested persons, qualified information:
one of whom shall be named by the stockholder,
another by the corporation, and the third by the STOCKHOLDER/MEMBER DIRECTOR
two (2) thus chosen. The finding of the majority May inspect and examine the Absolute and
of the appraisers shall be final. books and records as provided in unqualified
Sections 73 and 74 but may not and without
No payment shall be made to any dissenting gain access to highly sensitive and regard to
stockholder unless the corporation has confidential information. motive
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Mercantile Law
with another but also on terms, including2018 the
Pre-Emptive right, defined: price, that are yet to be firmed up. (Polytechnic
University of the Philippines vs. Golden Horizon Realty
It is the preferential right granted to all Corporation, G.R. No. 183612, March 15, 2010)
stockholders of a corporation to subscribe to all
issues or disposition of shares of any class, in REMEDIAL RIGHTS AVAILABLE TO
proportion to their respective shareholdings. STOCKHOLDERS AND MEMBERS
(Sec. 38, RCC)
Remedial rights available:
The right may be restricted or denied by the
articles of incorporation, and subject to certain 1. Individual suit – a suit instituted by a
exceptions and limitations. The stockholder must shareholder individually for his own behalf
be given a reasonable time within which to against the corporation for injury to his or
exercise their preemptive rights. Upon the her interest as a shareholder.
expiration of said period, any stockholder who
has not exercised such right will be deemed to Here, the right of action and recovery belongs to
have waived it. the shareholders (direct action). (Cua, Jr. vs. Tan,
G.R. No. 181455-56, December 4, 2009)
The validity of issuance of additional shares may 2. Representative suit – a suit filed by a
be questioned if done in breach of trust by the shareholder in his behalf and in behalf
controlling stockholders. Thus, even if the pre- likewise of other stockholders similarly
emptive right does not exist, either because the situated and with a common cause against
issue comes within the exceptions in Section 38 the corporation; (Republic Bank vs. Cuaderno,
or because it is denied or limited in the articles G.R. No. L-22399, March 30, 1967)
of incorporation, an issue of shares may still be
objectionable if the directors acted in breach of 3. Derivative suit – an action brought by one
trust and their primary purpose is to perpetuate or more stockholders or members in the
or shift control of the corporation, or to "freeze name and on behalf of the corporation to
out" the minority interest. (Majority Stockholders redress wrongs committed against it or to
vs. Lim G.R. No. 165887, June 6, 2011) protect or vindicate corporate rights,
whenever the officials of the corporation
Note: Right to vote was discussed in the topic refuse to sue or are the ones to be sued or
―Participation in Management‖ hold control of the corporation. (Ching vs.
Subic Bay Golf & Country Club, Inc., GR No.
174353, September 10, 2014)
Right of first refusal; defined: A derivative action is a suit by a shareholder
It is the right granted to stockholders of existing to enforce a corporate cause of action. The
corporations to buy the shares of stock of corporation is a necessary party to the suit.
another stockholder at a fixed price and only And the relief which is granted is a
valid if made on reasonable terms and judgment against a third person in favor of
consideration. (Fletcher, Vol. 5, p.6266) the corporation. Similarly, if a corporation
has a defense to an action against it and is
Note: A right of first refusal is a contractual not asserting it, a stockholder may intervene
grant, not of the sale of a property, but of the and defend on behalf of the corporation.
first priority to buy the property in the event the (Chua vs. Court of Appeals, Hao, G.R. No.
owner sells the same. As distinguished from an 150793, November 19, 2004)
option contract, in a right of first refusal, while
the object might be made determinate, the It [derivative suit] has been proven to be
exercise of the right of first refusal would be aneffective remedy of the minority against
dependent not only on the owner‘s eventual the abuses of management. Thus, an
intention to enter into a binding juridical relation individual stockholder is permitted to
institute a derivative suit on behalf of the
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Requisites of a valid meeting Stockholders' or members' meetings, 2018
whether
regular or special, shall be held in the:
1. The meeting must be held on the date fixed
in the by-laws or in accordance with law; 1. Principal office of the corporation as set
2. Prior notice must be given to the forth in the Articles of Incorporation; or,
stockholders or members; 2. If not practicable, in the city or municipality
3. It must be held at the proper place; and where the principal office of the corporation
4. It must be called by the proper person. is located.
(Ladia, The Corporation Code of the Philippines,
Annotated, 2007, p. 317) Note:
Note: All proceedings and any business Metro Manila, Metro Cebu, Metro Davao,
transacted at a meeting of the stockholders or and other Metropolitan areas shall be
members, if within the powers or authority of considered a city or municipality. (Sec. 50,
the corporation, shall be valid even if the RCC)
meeting is improperly held or called: Provided,
that all the stockholders or members of the A non-stock corporation may provide in its
corporation are present or duly represented at by-laws for any place within the Philippines
the meeting and not one of them expressly provided the requisite proper notice is sent
states at the beginning of the meeting that the to all members. (Sec. 92, RCC)
purpose of their attendance is to object to the
transaction of any business because the meeting When meetings are held:
is not lawfully called or convened. (Sec. 50, RCC)
Regular meetings of stockholders or members
Notice requirement of stockholders‟ or shall be held annually:
members‟ meeting
1. On the date fixed in the by-laws; or
Written notice must be sent to stockholders or 2. If not so fixed, on any date after April 15 of
members: every year as determined by the board of
directors or trustees. (Sec. 49, RCC)
In case of Regular Meeting:
Special meetings of stockholders or members
1. Within the period required in the by-laws, shall be held:
law, or regulation; or
2. In the absence of such period, at least 21 1. At any time deemed necessary; or
days prior to the meeting. (Sec. 49, RCC) 2. As provided in the bylaws. (Sec. 49, RCC)
1. Within the period provided in the bylaws, Proper party to call the meetings:
law, or regulation; or
2. In the absence of such period, at least 1 The following persons who may call the
week written notice. (Sec. 49, RCC) meeting:
Note: Notice of any meeting may be waived, 1. The person designated in the bylaws; (Sec.
expressly or impliedly, by any stockholder or 49, RCC)
member. 2. In the absence of such designation, the
President of the corporation; (Ibid)
Place and Time of Meetings 3. The petitioning stockholder or member, on
Where meetings are held: order of the SEC directing him to call a
meeting of the corporation, in cases where
there is no person authorized or the person
authorized refuses to call a meeting; (Ibid)
General rule: Quorum consists of the Unless otherwise provided in the Code, the
stockholders representing a majority of the board of directors or trustees shall exercise the
outstanding capital stock or a majority of the corporate powers, conduct all business, and
members in the case of non-stock corporations. control all properties of the corporation. (Sec. 22,
(Sec. 51, RCC) RCC)
Upon demand of any director, trustee, Difference between Term and Tenure:
stockholder or member, the following must be Term refers to the time during which the officer
noted in the minutes: may claim to hold the office as a matter of right
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Mercantile Law
and fixes the interval after which the several corporation. (Sundiang & Aquino,2018
Reviewer on
incumbents shall succeed one another. The term Commercial Law, 2017, p. 219)
of office is not affected by the holdover. Tenure,
on the other hand, represents the term during Grounds for disqualification of a director:
which the incumbent actually holds office. (Valle
Verde Country Club vs. Africa, G.R. No. 151969, 1. When a director ceases to own at least 1
September 4, 2009) share of stock or when a trustee ceases to
be a member;
Hold-over period; defined:
2. If within 5 years prior to the election or
It refers to the time from the lapse of one year appointment, the person was:
from a member‘s election to the Board and until
his successor‘s election and qualification. It is a. Convicted by final judgment of an
not part of the director‘s original term of office, offense punishable by imprisonment for
nor is it a new term; the holdover period, a period exceeding 6 years, or for
however, constitutes part of his tenure. (Valle violation the RCC, or for violating the RA
Verde Country Club vs. Africa, G.R. No. 151969, No. 8799, otherwise known as ―The
September 4, 2009) Securities Regulation Code‖;
b. Found administratively liable for any
Qualifications of a director: offense involving fraudulent acts; and
c. By a foreign court or equivalent foreign
1. Must own at least 1 share of the capital regulatory authority for acts, violations
stock in his own name, or if the corporation or misconduct similar to (a) and (b); or
is a non-stock corporation, he must be a
member thereof; (Sec. 23, RCC) 3. Such other disqualifications which the SEC
or Philippine Competition Commission may
Note: impose. (Sec. 26, RCC)
For example, in an election of the Board of Note: No one shall act as president and
Directors where 5 members of the board are to secretary or as president and treasurer at the
be elected, a stockholder who owns 100,000 same time, unless otherwise allowed in the RCC.
shares of stock may cast all of his 500,000 votes (Ibid.)
to a particular nominee. The number of votes he
is entitled to cast was derived by multiplying his In case of a One Person Corporation (OPC), the
single stockholder may be self-appointed as
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Mercantile Law
treasurer but not as corporate secretary. (Sec. 2018 was
Exception: If the director to be removed
122, RCC) elected by the minority, there must be cause for
removal because the minority may not be
Instances when the BOD/BOT does not deprived of the right to representation to which
elect the officers: they may be entitled under Sec. 23 of the Code.
(Sec. 27, RCC)
1. In case of a non-stock corporation, the
members may directly elect officers, unless FILLING OF VACANCIES
otherwise provided in the articles of
incorporation or in the bylaws. (Sec. 91, Stockholders or members may fill the
RCC) vacancy, if it is due to:
2. In case of a close corporation, its articles of
incorporation may provide that all officers 1. If the vacancy may be filled by the
or employees or that specified officers or remaining directors or trustees but the
employees shall be elected or appointed by board refers the matter to stockholders or
the stockholders, instead of by the board members;
of directors. (Sec. 96, RCC) 2. Expiration of term
3. In case of an OPC, the single stockholder 3. Removal
shall appoint the corporate officers as it 4. Increase in the number of directors
may deem necessary. (Sec. 122, RCC) 5. Grounds other than removal or expiration
of term, e.g. death, resignation,
REMOVAL OF DIRECTORS OR TRUSTEES abandonment, or disqualification where the
remaining directors do not constitute a
Power to remove quorum for the purpose of filling the
vacancy. (Sec. 28, RCC)
The power to remove directors or trustees is
lodge to the following: Effect of vacancy
NOTE: The phrase ―as such directors‖ in Sec. 29 Section 33 is consistent with the duty of the
of the Corporation Code delimits the scope of loyalty of a director. The duty of loyalty
the prohibition to compensation given to them mandates that directors should not give
for services performed purely in their capacity as preference to their own personal
directors or trustees. The unambiguous amelioration by taking the opportunity
implication is that members of the board may belonging to the corporation. (Aquino, 2011,
receive compensation, in addition to reasonable p. 308)
per diems, when they render services to the
corporation in a capacity other than as Note: The prohibition no longer applies if
directors/trustees. (Western Institute of
the action was made after the resignation of
Technology, Inc., vs. Salas, G.R. No. 113032, August the director. (Aquino, 2011, p. 309)
21, 1997)
Burden of Proof
Fiduciary duties and liability rules
The burden of proof on the questions of good
Directors are bearing fiduciary relation to faith, fair dealing, and loyalty of the officer to
the corporation and stockholder: the corporation should rest upon the officer who
appropriated the business opportunity for his
own advantage. (Aquino, 2011, p. 309)
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Ratification whether or not it will cause2018 losses or
decrease in profits, the court has no
The corporation may choose to ratify the acts of authority to review them. (Montelibano vs.
the director. However, this requires a vote of Bacolod-Murcia Milling Co., G.R. No. L-15092,
two-thirds (2/3) of the outstanding capital stock. May 18, 1962)
Otherwise, he must account all the profits by
refunding the same to the corporation. (Aquino, The members of the Board of Directors hold
2011, p. 310) such office charged with the duty to act for
the corporation according to their best
DISLOYALTY OF A DIRECTOR judgment, and in so doing, they cannot be
controlled in the reasonable exercise and
There is disloyalty on the part of director performance of such duty. (SEC Opinion No.
when: 15-05, November 2005)
1. A director or trustee acquires any personal The will of the majority controls in corporate
or pecuniary interest in conflict with (his) affairs, and contracts intra vires entered into
duty as such director or trustee; by the board of the directors are binding on
2. He attempts to acquire or acquires, in the corporation and courts will not interfere
violation of his duty, any interest adverse to unless such contracts are so unconscionable
the corporation in respect to any matter and oppressive as to amount to a wanton
which has been reposed in him in destruction of rights of the minority.
(Ingersoll vs. Malabon Sugar Co., G.R. No. L-
confidence;
27770, Dec. 31, 1927)
3. He, by virtue of his office, acquires for
himself a business opportunity which should Exceptions to business judgment rule:
belong to the corporation, thereby obtaining
profit to the prejudice of such corporation. 1. When the contracts are so unconscionable
(Ladia, The Corporation Code of the Philippines, and oppressive as to amount to a wanton
Annotated, 2007, p. 195)
destruction of rights of the minority.
(Ingersoll vs. Malabon Sugar Co., G.R. No.
Note: The above enumerations are the grounds
L‐16977, April 21, 1922)
by which a director may be held liable for
damages and thus, the veil of corporate fiction 2. When there is bad faith or gross negligence
may be pierced. (De Leon, 2010, p. 305) by the directors. (Republic Communications
Inc. vs. CA, GR No. 135074, January 29, 1999)
BUSINESS JUDGMENT RULE
Consequences of business judgment rule
Business judgment rule; defined:
1. Resolutions approved, contracts and
It provides that questions of policy or transactions entered into by the Board
management are left solely to the honest within the powers of the corporation cannot
decision of officers and directors of a be reversed by the courts not even on the
corporation and the courts are without authority behest of the stockholders; and
to substitute their judgment for the judgment of 2. Directors and officers acting within such
the board of directors; the board is the business business judgment cannot be he held
manager of the corporation and so long as it personally liable for such acts. (Villanueva,
acts in good faith, its orders are not reviewable Philippine Corporate Law, 2013, p. 316)
by the courts or SEC. (Montelibano vs. Bacolod-
Murcia Milling Co. Inc., G.R. No. L-15092, May 18, Note: A board resolution authorizing a
1962) corporate officer to obtain a loan includes the
authority to assign the receivables to secure the
When a resolution is passed in good faith by loan if the resolution also empowers the officer
the BOD, it is valid and binding, and to agree to the terms and conditions of the loan
Director or officer, when criminally liable: Information not known to the public that one
has obtained by virtue of being an insider
A director or officer may be held criminally liable like a director. (Miriam Webster Dictionary, 2006)
when he was directly required by law to do an
act in a given manner, and the same law makes CONTRACTS
the person who fails to perform the act in the
prescribed manner expressly liable criminally. Self-dealing directors, trustees, or officers
Where a law requires a corporation to do a Those who personally contract with the
particular act, failure of which on the part of the corporation in which they are directors, trustees
responsible officer to do so constitutes the or officers.
offense, the responsible officer is criminally
liable therefore. (People vs. Tan Boon Kong, GR No. Discouraged because they have fiduciary
L-35262, March 15, 1930) relationship with the corporation and there
can be no real bargaining where the same is
acting on both sides of the trade. (Aquino,
2011, p. 302)
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Mercantile Law
Status of contracts by self-dealing When one (or some or all) of the 2018 directors in
directors with the corporation one corporation is (or are) a director(s) in
another corporation. (Aquino, 2011, p. 305)
A contract of the corporation with one or more
of its directors or trustees or officers or their Effect of Interlocking directorship
spouses and relatives within the fourth civil
degree of consanguinity or affinity is voidable, at A contract between two (2) or more
the option of such corporation, unless all of the corporations having interlocking directors shall
following conditions are present: not be invalidated on that ground alone,
provided that the following conditions are
1. The presence of such director or trustee in present:
the board meeting in which the contract was
approved was not necessary to constitute a 1. Fraud is not attendant to the contract;
quorum for such meeting; 2. The contract is fair and reasonable under
2. The vote of such director or trustee was not the circumstances; and
necessary for the approval of the contract; 3. The interest of the interlocking director in
3. The contract is fair and reasonable under both corporations must either be
the circumstances; substantial or nominal. (Sec. 32, RCC)
4. In case of corporations vested with public
interest, material contracts are approved by Substantial interest, how determined:
at least two-thirds (2/3) of the entire
membership of the board, with at least a Stockholdings exceeding twenty (20%)
majority of the independent directors voting percent of the outstanding capital stock shall
to approve the material contract; and be considered substantial for purposes of
5. In case of an officer, the contract has been interlocking directors. (Sec. 32, RCC)
previously authorized by the board of
directors. (Sec, 31. RCC) EXECUTIVE AND OTHER SPECIAL
COMMITTEES
In the absence of the first three requisites,
contracts by self-dealing directors may be Creation of executive committee
ratified; requirements:
If the by-laws so provide, the board of a
Where any of the first three conditions set forth corporation may create an executive committee,
in the preceding paragraph is absent, in the composed of at least three (3) members of the
case of a contract with a director or trustee, board. (Sec. 34, RCC)
such contract may be ratified, provided:
Limitations on the powers of the executive
1. The contract is ratified by the vote of the committee
stockholders representing at least two-thirds
(2/3) of the outstanding capital stock or of The committee may act, by majority vote of all
at least two-thirds (2/3) of the members; its members, on such specific matters within the
2. Such ratification is made at a meeting called competence of the board, as may be delegated
for that purpose; to it in the by-laws or on a majority vote of the
3. Full disclosure of the adverse interest of the board except with respect to the:
directors or trustees involved is made at
such meeting; and 1. Approval of any action for which
4. The contract is fair and reasonable under shareholders' approval is also required;
the circumstances. (Ibid.) 2. Filling of vacancies in the board;
3. Amendment or repeal of by-laws or the
Interlocking directorship, meaning: adoption of new by-laws;
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Mercantile Law
Audio Conferencing is a conference in which Exceptions: 2018
people at different locations speak to each other
via telephone or internet connections. (Sec. 3[e], 1. Unless the articles of incorporation or the
SEC MC 06-2020) by-laws provides for a greater majority.
2. Election of officers which shall require the
Roll Call: At the start of the meeting, the vote of majority of all the members of the
Presiding Officer shall instruct the Corporate board. (Sec. 52, RCC)
Secretary to make a roll call. Thereafter, the
Corporate Secretary shall confirm and note the An independent director should always be in
participants and certify the existence of quorum. attendance. However, the absence of an
(Sec. 9, SEC MC 06-2020) independent director may not affect the
quorum requirements if he is duly notified of
Voting: In case of a need to vote in any item or the meeting but deliberately and without
matter in the agenda, the Presiding Officer shall justifiable cause fails to attend the meeting.
direct the Corporate Secretary to note the vote Justifiable cause may only include grave
of each director or trustee. illness or death of immediate family and
serious accidents. (SEC Memorandum Circular
The director or trustee participating in the No. 02-02, April 2002)
meeting via remote communication may cast his
vote through electronic mail, messaging service Rule on abstention
or such other manner as may be provided in the
internal procedures. The vote shall be sent to A director with a material interest in any
the Presiding Officer and the Corporate transaction affecting the corporation should
Secretary for notation. (Sec. 8, SEC MC 06-2020) abstain from taking part in the deliberations for
the same. The abstention of a director from
Who presides board meeting participating in a meeting when related party
transactions, self-dealings or any transactions or
1. The person designated in the bylaws; matters on which he/she has a material interest
2. In no person is designated in the bylaws, are taken up ensures that he has no influence
the chairman of the board; over the outcome of the deliberations. The
3. In the absence of the chairman, the fundamental principle to be observed is that a
president. director does not use his position to profit or
4. The Petitioning stockholder or member - gain some benefit or advantage for his himself
upon issue of order of the SEC directing and/or his/her related interests. (SEC
him to call a meeting of the corporation by Memorandum Circular No. 19-16, November 2016)
giving proper notice required by the Code
or by its by-laws, until at least majority of CAPITAL AFFAIRS
the stockholders or members present have
chosen one of their member as presiding Subscription contract, defined:
officer. (Ladia, The Corporation Code of the
Philippines, Annotated, 2007, p. 272) It is any contract for the acquisition of unissued
stock in an existing corporation or a corporation
Quorum: still to be formed. (Sec. 59, RCC)
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Mercantile Law
represented, and the date of issuance. 2018
(Ibid.)
A transaction by which a person becomes the While directors and stockholders are given
owner of shares and by which new share the right to have access to the STB, there is
contracts are created. (Ladia, The Corporation no express provision in the law making it a
Code of the Philippines, Annotated) duty of a corporation to supply any
stockholder, upon his request, with a list of
Subscription to shares of stock are deemed its stockholders showing their respective
indivisible and no certificate of stock shall be subscriptions. To do so would result to a
issued to a subscriber until the full amount of great inconvenience on the part of the
the subscription together with interest and corporation, especially when there are
expenses (in case of delinquent shares), if any is thousands of stockholders. It seems,
due, has been paid. (Sec. 63, RCC) therefore, unnecessary for a stockholder to
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Mercantile Law
3. The delinquent stockholder shall not be The stock so purchased shall be2018
transferred
entitled to any of the rights of a stockholder to such purchaser in the books of the
except the right to dividends. (Sec. 70, RCC) corporation and a certificate for such stock
shall be issued in purchaser‘s favor.
Call by resolution of the board of directors
for the sale of delinquent stock The remaining shares, if any, shall be
credited in favor of the delinquent
The Board of Directors may, by resolution, order stockholder who shall likewise be entitled to
the sale of delinquent stock and shall specifically the issuance of a certificate of stock
state the amount due on each subscription plus covering such shares. (Sec. 67, RCC)
all accrued interest, and the date, time and
place of the sale which shall not be less than Corporation may bid in the absence of
thirty (30) days nor more than sixty (60) days bidder at the public auction
from the date the stocks become delinquent.
(Sec. 67, RCC) Should there be no bidder at the public auction,
the corporation may, subject to the
Notice of sale of delinquent stock to be availability of Unrestricted Retained
sent to delinquent stockholder, publication Earnings, bid for the same, and the total
also required amount due shall be credited as paid in full in
the books of the corporation. The reacquired
Notice of said sale, with a copy of the resolution, shares shall be considered as Treasury Shares
shall be sent to every delinquent stockholder and may be disposed of by said corporation in
either personally or by registered mail or accordance with the provisions of the RCC. (Sec.
through other means provided in its bylaws. The 67, RCC)
same shall furthermore be published once a
week for two (2) consecutive weeks in a Note: Should there be no bidder and the
newspaper of general circulation in the province corporation has no Unrestricted Retained
or city where the principal office of the Earnings, it may resort to collecting the unpaid
corporation is located. (Sec. 67, RCC) subscription through court action. (Ibid.)
Sale of a portion of shares not fully paid Transfer of stocks not represented by
certificate or certificate not in possession
The Commission consistently opined that the of the stockholder:
stockholder shall only be entitled to the issuance If the certificate of stock has not been issued or
of his certificate of stock upon payment of the is not in the possession of the stockholder,
full amount of his subscription together with the transfer of stock may be made by means of a
interest and expenses (in case of delinquent notarized deed of assignment provided such is
shares), if any is due pursuant to the doctrine of duly recorded in the books of the corporation.
indivisibility of subscription contract under Sec. (Sundiang and Aquino, Reviewer on Commercial Law)
63 of the Code. Thus, there is a prohibition to
prevent the partial disposition of a subscription Involuntary dealings
which is not fully paid. (SEC OGC Opinion No. 16-
05) It refers to such writ, order, or process issued
by a court of record affecting shares of stocks
Sale of all shares not fully paid which by law should be registered to be
effective, and also to such instruments which
Failure to pay on the specified date shall render are not the willful acts of the registered owner
the entire balance due and payable. If within 30 and which may have been executed even
days from the specified date in the subscription without his knowledge or against his consent.
contract or in the call, the stockholder does not (Rule 57, Rules of Court)
pay, the whole subscription shall automatically
become delinquent and shall be subject to CORPORATE BOOKS AND RECORDS
delinquency sale at public auction, unless the
BOD declares otherwise. (Sec. 66, RCC) These shall refer to all Books and Records of the
Company relating to the Company‘s corporate
Sale of fully paid shares existence, equity arrangements, accounting
practices and tax returns, and including the
It involves sale of shares issued in which no Company‘s stock ledgers, auditor‘s letters,
more money is required to be paid to the business and financial records. (Sec. 73, RCC)
company by shareholders on the value of the
shares. Sale of fully paid shares is allowed even Records to be kept at principal office
without the consent of the corporation for as
long as the requisites of a valid transfer are Every corporation shall keep and carefully
present. (Sec. 62, RCC) preserve at its principal office all information
relating to the corporation including, but not
Requisites of valid transfer limited to:
In case of shares represented by a certificate, 1. Articles of Incorporation and bylaws and all
the transfer must strictly comply with the their amendments;
following conditions: 2. Current ownership structure and voting
rights of the corporation, including lists of
1. There must be a delivery of stock certificate; stockholders or members, group structures,
2. The certificate must be indorsed by the intra-group relations, ownership data, and
owner or his attorney-in-fact or other beneficial ownership;
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Mercantile Law
3. Names and addresses of all the members of 2018 who
imposed upon the directors or trustees
the board of directors or trustees and the voted for such refusal.
executive officers;
4. Record of all business transactions; Valid defenses for the refusal to allow the
5. Record of the resolutions of the board of inspection of corporate records and books:
directors or trustees and of the stockholders
or members; 1. The person demanding to examine the
6. Copies of the latest reportorial requirements corporation‘s records and minutes has
submitted to the SEC; and improperly used any information secured
7. The minutes of all meetings of stockholders through any prior examination of the
or members, or of the board of directors or records or minutes of such corporation or of
trustees. (Sec. 73, RCC) any other corporation;
2. The person was not acting in good faith or
Right to inspect corporate records for a legitimate purpose; and
3. The person is a competitor, director, officer,
Corporate records, regardless of the form in controlling stockholder or otherwise
which they are stored, shall be open to represents the interests of a competitor.
inspection by any director, trustee, stockholder (Sec. 73, RCC)
or member of the corporation in person or by a
representative at reasonable hours on business Aggrieved party may report to SEC:
days, and a demand in writing may be made by
such director, trustee or stockholder at their If the corporation denies or does not act on a
expense, for copies of such records or excerpts demand for inspection and/or reproduction, the
from said records. (Sec. 73, RCC) aggrieved party may report such to the SEC.
Within five (5) days from receipt of such report,
Effect of refusal to inspect corporate the Commission shall conduct a summary
records investigation and issue an order directing the
inspection or reproduction of the requested
Any officer or agent of the corporation who shall records. (Sec. 73, RCC)
refuse to allow the inspection and/or
reproduction of records in accordance with the DISSOLUTION AND LIQUIDATION
provisions of this Code shall be: Dissolution, defined:
1. Liable to such director, trustee, stockholder It is the act of terminating or shortening the life
or member for damages, and of a corporation.
2. In addition, shall be guilty of an offense
which shall be punishable under Section 161 Liquidation, defined:
of this Code.
It is the process of settling the affairs of a
Penalty under Section 161, RCC: corporation, which consists of adjusting the
debts and claims that is, collecting all that is due
The unjustified failure or refusal by the the corporation, the settlement and adjustment
corporation, or by the responsible office or of claims against it and payment of its just
agent, on the inspection and reproduction of debts. Winding up the affairs of the corporation
records shall be punished with a fine ranging means the collection of all assets, the payment
from P10,000.00 to P200,000.00, at the of all its creditors and the distribution of the
discretion of the court. remaining assets, if any among the stockholders
in accordance with their contracts, or if there be
Note: If such refusal is made pursuant to a no special contract, on the basis of their
resolution or order of the board of directors or respective interests. (Yu vs. Yukayguan, et al., G.R.
trustees, the liability for such action shall be No. 177549, June 18, 2009)
3. Submission to the SEC Contents - set forth all claims and demands
against it
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Mercantile Law
shorten the corporate term. A copy 2018of the
The Corporation shall submit the following amended articles of incorporation shall be
to the SEC: submitted to the SEC. (Sec. 136, RCC)
a. A copy of the resolution authorizing the
dissolution, certified by a majority of the Expiration of corporate term results to
board of directors or trustees and automatic dissolution
countersigned by the secretary of the Upon the expiration of the shortened term, as
corporation; and stated in the approved amended articles of
b. A list of all its creditors. incorporation, the corporation shall be deemed
dissolved without any further proceedings,
3. Procedure by the SEC: subject to the provisions on liquidation.
a. Issuance of an order fixing the deadline In the case of expiration of corporate term,
for filing objections to the petition which dissolution shall automatically take effect on the
date shall not be less than 30 days nor day following the last day of the corporate term
more than 60 days after the entry of the stated in the articles of incorporation, without
order, the need for the issuance by the SEC of a
b. Publication of a copy of the order at certificate of dissolution. (Ibid.)
least once a week for 3 consecutive
weeks in a newspaper of general Withdrawal of dissolution
circulation published in the municipality
or city where the principal office of the Withdrawal of request for dissolution
corporation is situated, or if there be no
such newspaper, then in a newspaper of A withdrawal of the request for dissolution shall
general circulation in the Philippines, be:
and a similar copy shall be posted for 3 1. In writing;
consecutive weeks in 3 public places in 2. Duly verified by any incorporator, director,
such municipality or city, trustee, shareholder, or member;
c. Hearing of the petition and objections 3. Signed by the same number of
raised upon 5 days‘ notice given after incorporators, directors, trustees,
the expiration of the period for filing shareholders, or members necessary to
objection. request for dissolution; and
4. Submitted to SEC not later than fifteen (15)
4. Issuance of Certificate of Dissolution days from the latter‘s receipt of the request
for dissolution. (Sec. 137, RCC)
If no such objection is sufficient, and the
material allegations of the petition are true, Action by the SEC
SEC shall render judgment dissolving the
corporation and directing such disposition of Upon receipt of a withdrawal of request for
its assets as justice requires, and may dissolution, the Commission shall withhold
appoint a receiver to collect such assets and action on the request for dissolution and shall,
pay the debts of the corporation. after investigation:
The dissolution shall take effect only upon 1. Make a pronouncement that the request for
the issuance by the Commission of a dissolution is deemed withdrawn;
certificate of dissolution. 2. Direct a joint meeting of the board of
directors or trustees and the stockholders
Voluntary dissolution by shortening of or members for the purpose of ascertaining
corporate term whether to proceed with dissolution; or
3. Issue such other orders as it may deem
A voluntary dissolution may be effected by appropriate. (Sec. 137, RCC)
amending the articles of incorporation to
1. Non-use of corporate charter within five (5) 1. Violation of any of the provisions of the
years from the date of its incorporation; Revised Corporation Code committed by the
2. Failure of the corporation to resume corporation (Sec. 170, RCC)
operations within two (2) years after the 2. Deadlock in a close corporation (Sec. 103,
same has been placed under delinquent RCC)
status (Continuous inoperation); 3. In a close corporation, any act of directors,
3. Upon receipt of a lawful court order officers or those in control of the
dissolving the corporation; corporation which is illegal or fraudulent or
4. Upon finding by final judgment that the dishonest or oppressive or unfairly
corporation procured its incorporation prejudicial to the corporation or any
through fraud; and stockholder or whenever corporate assets
5. Upon finding by final judgment that the are being misapplied or wasted (Sec. 104,
corporation: RCC)
a. Was created for the purpose of
committing, concealing or aiding the METHODS OF LIQUIDATION
commission of securities violations,
smuggling, tax evasion, money Methods of liquidation:
laundering, or graft and corrupt
practices; 1. By the corporation itself;
b. Committed or aided in the commission 2. By conveyance to a Trustee within a three-
of securities violations, smuggling, tax year period;
evasion, money laundering, or graft and 3. By Management Committee or Rehabilitation
corrupt practices, and its stockholders Receiver;
knew; and 4. By liquidation after three years. (Ladia, The
c. Repeatedly and knowingly tolerated the Corporation Code of the Philippines, Annotated,
commission of graft and corrupt 2015, p. 513)
practices or other fraudulent or illegal
acts by its directors, trustees, officers, Liquidation by the corporation itself
or employees. (Sec. 138, RCC)
The power of the board to manage the
Dissolution by the SEC on grounds under corporate affairs is broad enough to cover a
Sec. 6(i) of P.D. 902 - SEC Reorganization situation where the corporation affairs are to be
Act: liquidated. If this method is resorted to, the
board will only have a period of 3 years to
1. Fraud in procuring its certificate of finish its task of liquidation. Claims for or against
registration; the corporation not filed within the period
2. Serious misrepresentation as to what the become unenforceable as there exists no
corporation can do or is doing to the great corporate entity against which they can
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be enforced. Actions pending for or against the A receiver may be appointed by 2018 the proper
corporation when the 3-year period expires are forum on petition or motu proprio upon the
abated since after that period, the corporation dissolution of the corporation. Appointment of a
ceases for all intents and purposes and is no receiver is permissive and may be granted only
longer capable of suing or being sued. (Ladia, upon special circumstances. If a receiver is
The Corporation Code of the Philippines, Annotated, appointed, the 3-year period fixed by law within
2007, p. 511) which to complete the task of liquidation will not
The continued existence for three (3) years shall likewise apply because the dissolved corporation
be for the purpose of: is substituted by the receiver who may sue or be
sued even after that period. However, mere
1. Prosecuting and defending suits by or appointment of a receiver without anything
against it; more does not result in the dissolution of a
2. Enabling it to settle and close its affairs; corporation. (Ladia, The Corporation Code of the
3. Permitting it to dispose of and convey its Philippines, Annotated, 2007, p. 512)
property; and
4. Allowing it to distribute its assets. Period of receivership:
The continued existence shall not be for the When the corporation is dissolved and the
purpose of continuing the business for which the liquidation of its assets is placed in the hands of
corporation was established. (Sec. 139, RCC) a receiver or assignee, the period of 3 years is
not applicable, and the assignee may institute all
Liquidation by conveyance to a trustee actions leading to the liquidation of the assets of
within a 3-year period the corporation even after the expiration of 3
years. (Sumera vs. Valencia, G.R. No. 45485, May 3,
If this method is used, the 3-year period 1939)
limitation imposed will not apply provided the
designation of the trustee is made within that Liquidation after three years
period. Should the corporation find it difficult to
finish its liquidation, it may, at any time during If the 3-year extended life has expired without a
the 3-year period, convey all its assets and trustee or receiver having been expressly
receivables to a trustee to prosecute and defend designated by the corporation within that
suits by or against the corporation begun before period, the board of directors (or trustees) itself
the expiration of said period. may be permitted to so continue as trustees by
legal implication to complete the corporate
During the period of liquidation, but before liquidation. Still in the absence of board of
completion thereof, a corporation, as directors or trustees, those having pecuniary
represented by its trustee, can sue and be sued interest in the assets, including not only the
even beyond the 3-year period fixed by law. shareholders but likewise the creditors of the
(Ladia, The Corporation Code of the Philippines, corporation, acting for and in its behalf, might
Annotated, 2007, p. 511) make proper representation with SEC. (Clemente
vs. Court of Appeals, G.R. No. 82407, March 27,
Period of trusteeship: 1995)
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If, upon the expiration said period, the existing register the transfer of stock in 2018
the name of
stockholders or the corporation fails to exercise the transferee.
the option to purchase, the transferring
stockholder may sell their shares to any third 5. The provisions of subsection (4) shall not
person. (Sec. 97, RCC) applicable if the transfer of stock, though
contrary to subsections (1), (2) of (3), has
Issuance or Transfer of Stock in Breach of been consented to by all the stockholders
Qualifying Conditions; Effects of the close corporation, or if the close
corporation has amended its articles of
1. If a stock is issued or transferred to a incorporation.
person who is not eligible to be a holder of
record thereof, and if the certificate for 6. The term "transfer", as used in this section,
such stock clearly shows the qualifications is not limited to a transfer for value.
of persons entitled to be holders of record 7. The provisions of this section shall not
thereof, such person is conclusively impair any right which the transferee may
presumed to have notice of the fact of his have to rescind the transfer or to recover
ineligibility to be a stockholder. under any applicable warranty, express or
implied. (Sec. 98, RCC)
2. If the articles of incorporation states the
number of persons, not exceeding twenty, When Board Meeting is Unnecessary or
who are entitled to be holders of record of Improperly Held
stocks, and if the certificate for such stock
clearly states such number, and the Unless the bylaws provide otherwise, any action
issuance or transfer would cause the stock by the directors of a close corporation without a
to be held by more than such number in meeting shall nevertheless be deemed valid
persons, the person to whom the stock is if:
issued or transferred is conclusively
presumed to have notice of such fact. 1. Before or after such action is taken, written
consent thereto is signed by all the
3. If a stock certificate conspicuously shows a directors;
restriction on transfer of stock and the
transferee acquires the stock in violation of 2. All the stockholders have actual or implied
such restriction, the transferee is knowledge of the action and make no
conclusively presumed to have notice of the prompt objection thereto in writing;
fact that he has acquired stock in violation
of the restriction, if such acquisition violates 3. The directors are accustomed to take
the restriction. informal action with the express or implied
acquiescence of all the stockholders; or
4. Whenever any person to whom stock of a
close corporation has been issued or 4. All the directors have express or implied
transferred has, or is conclusively presumed knowledge of the action in question and
to have, notice either (1) that he is a none of them makes prompt objection
person not eligible to be a holder of stock thereto in writing.
of the corporation, or (2) that transfer of
stock would cause the stock of the Note: The director who failed to attend the
corporation to be held by more than the meeting due to lack of proper call or notice may
number of persons file his written objection with the secretary of
permitted by its articles of incorporation to the corporation over the action taken therein
hold stock of the corporation, or (3) that after having knowledge thereof, otherwise it is
the transfer of stock is in violation of a deemed ratified. (Sec. 100, RCC)
restriction on transfer of stock, the
corporation may, at its option, refuse to
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2018
the process of dissolution in the following
Plan and Distribution of Assets Upon manner:
Dissolution
1. A resolution recommending a plan of
Rules on Distribution distribution of assets by the board of
trustees and directing the submission
In case of dissolution of a non-stock corporation thereof to a vote at a regular or special
in accordance with the provisions of the Code, voting members‘ meeting.
its assets shall be applied and distributed as 2. Written notice is given to each member
follows: entitled to vote.
3. Approval by at two-thirds of the members
1. All liabilities and obligations of the having voting rights present or represented
corporation shall be paid, satisfied and by proxy during the meeting. (Sec. 94, RCC)
discharged, or adequate provision shall be
made therefore; EDUCATIONAL CORPORATIONS
2. Assets held by the corporation upon a
condition requiring return, transfer or Incorporation
conveyance, and which condition occurs by
reason of the dissolution, shall be returned, Educational corporation shall be governed by
transferred or conveyed in accordance with special laws and by the general provisions of the
such requirements; Revised Corporation Code. (Sec. 105, RCC)
3. Assets received and held by the corporation
subject to limitations permitting their use Board of Directors or Trustees, number
only for charitable, religious, benevolent, and term of office:
educational or similar purposes, but not
held upon a condition requiring return, In case of educational institutions organized as
transfer or conveyance by reason of the nonstock corporations, the number of trustees
dissolution, shall be transferred or shall not be less than five (5) nor more than
conveyed to one (1) or more corporations, fifteen (15) and shall be in multiples of five (5).
societies or organizations engaged in They shall hold office for five (5) years.
activities in the Philippines substantially However, in case of newly organized
similar to those of the dissolving corporations, the term of 1/5 of the trustees
corporation according to a plan of shall expire every year. Those elected thereafter
distribution adopted; to fill vacancies caused by expiration of term
4. All other assets, if any, shall be distributed shall hold office for five (5) years.
in accordance with the provisions of the
articles of incorporation or the by-laws, to In case of educational institutions organized as
the extent that the articles of incorporation stock corporations, the number of directors shall
or the by-laws, determine the distributive not be more than fifteen (15). They shall hold
rights of members, or any class or classes office for one (1) year. (Sec. 106, RCC)
of members, or provide for distribution.
5. In any other case, assets may be Constitutional provision on Filipino
distributed to such persons, societies, ownership: par. 2, Sec. 4 of Article XIV
organizations or corporations, whether or (Education, Science and Technology, Arts,
not organized for profit, as may be Culture and Sports)
specified in a plan of distribution adopted.
(Sec. 93, RCC) Educational institutions, other than those
established by religious groups and mission
Plan of Distribution of Assets boards, shall be owned solely by citizens of the
Philippines or corporations or associations at
A plan providing for the distribution of assets least sixty per centum of the capital of which is
may be adopted by a nonstock corporation in owned by such citizens. The Congress may,
No educational institution shall be established The extent of the its power to mortgage or sell
exclusively for aliens and no group of aliens shall real properties is, however, subject to certain
comprise more than one-third of the enrollment restriction, that is, a proper court order (RTC)
in any school. The provisions of this sub section must first be secured for that purpose, which is
shall not apply to schools established for foreign not otherwise imposed in any other corporation.
diplomatic personnel and their dependents and, Intervention of the court may be dispensed with
unless otherwise provided by law, for other only if the rules, regulations and discipline of the
foreign temporary residents. religious denomination, sect or church
concerned provide or regulate the manner or
RELIGIOUS CORPORATIONS method of holding or alienating properties. (Sec.
111, RCC)
Classes of Religious Corporations
Nationality of Corporation Sole
Religious corporations may be incorporated by
one or more persons. Such corporations may be A corporation sole does not have any nationality,
classified into: but for purposes of applying nationalization
laws, nationality is determined not by the
1. Corporations sole; and nationality of its presiding elder but by the
2. Religious societies (Sec. 107, RCC) nationality of its members, constituting the sect
in the Philippines. Also, the framers of the
Corporation Sole Constitution did not have in mind the religious
corporations sole when they provided that sixty
A religious corporation which consists of one (60) percent of the capital stock of a corporation
person or individual and who is made as body who wants to acquire public land shall be owned
corporate and politic in order to give it some by Filipino citizens. (Roman Catholic Apostolic
legal capacity and advantage which as a natural Church vs. LRC, G.R. No. L-8451, December 20,
person, it cannot have. 1957)
A One Person Corporation shall file its articles of 1. The single stockholder shall be the sole
incorporation in accordance with the director and president of the OPC. (Sec. 121,
requirements of Sec. 14 and shall substantially RCC)
contain:
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recorded in the minutes book. (Sec. 128, conversion into an 2018 stock
ordinary
RCC) corporation;
2. Compliance with all the requirements for
Liability of the Single Stockholder stock corporations;
3. Issuance by the SEC of a certificate of filing
1. A sole shareholder claiming limited liability of amended articles of incorporation
has the burden of affirmatively showing reflecting the conversion if all the
that the corporation was adequately requirements have been complied with.
financed.
In case of death of the single stockholder, the
2. Where the single stockholder cannot prove heirs shall notify the SEC of their decision to
that the property of the OPC is independent either wind up and dissolve the OPC or convert
of the stockholder‘s personal property, the it into an ordinary stock corporation.
stockholder shall be jointly and severally
liable for the debts and other liabilities of The ordinary stock corporation converted from a
the OPC. One Person Corporation shall succeed the latter
and be legally responsible for all the latter‘s
The principles of piercing the corporate veil outstanding liabilities as of the date of
applies with equal force to OPC as with other conversion. (Sec. 132, RCC)
corporations. (Sec. 130, RCC)
FOREIGN CORPORATIONS
Conversion from an Ordinary Corporation
to a One Person Corporation Foreign corporations, defined:
Conversion from a One Person Corporation A corporation may give actual consent to judicial
to an Ordinary Stock Corporation jurisdiction manifested normally by compliance
with the State‘s foreign corporation qualification
Requirements: requirements such as licensing requirements
and other requirements to lawfully transact
1. Submission to SEC of due notice fact and of business in the Philippines. (Sec. 142, RCC)
the circumstances leading to the conversion
within sixty (60) days from the occurrence “Doing business” pertaining to foreign
of the circumstances leading to the corporation:
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from it and turned it over to another. The term incentives granted and allowed 2018 under the
implies a continuity of commercial dealings and Omnibus Investment Code. (Ladia, The
arrangements, and contemplates to that extent Corporation Code of the Philippines, Annotated, 2007,
the performance of acts or works or the exercise p. 529)
of some of the functions normally incident to,
and in progressive prosecution of, the purpose Requisites for issuance of a license:
and object of its organization. (Mentholatum Co.,
Inc. vs. Mangaliman, G.R. No. L-47701, June 27, 1. Certified copy of Articles of incorporation
1941) and by-laws;
2. The application, which shall be under oath;
The question whether or not a foreign 3. Certification under oath duly executed by
corporation is doing business is dependent the authorized official of the jurisdiction of
principally upon the facts and circumstances of its incorporation attesting that the laws of
each particular case, considered in the light of its country allow Filipino citizens and
the purposes and language of the pertinent corporations to do business therein;
statute or statutes involved and of the general 4. Statement under oath that applicant foreign
principles governing the jurisdictional authority corporation is solvent and in sound financial
of the state over such corporations. (MR Holdings, condition, setting forth the assets and
Ltd. vs. Bajar, G.R. No. 138104, April 11, 2002) liabilities of the corporation as of the date
not exceeding one (1) year immediately
Requirements for foreign corporation to prior to the filing of application;
have the right to transact business in the 5. Compliance with existing laws applicable to
Philippines: applicant foreign corporation in the case of
banks and insurance corporations, or
1. License; authority from appropriate government
2. Certificate of authority from the appropriate agency, in all other cases. (Sec. 142, RCC)
government agency;
3. Resident agent. (Secs. 140 and 142, RCC) Required Articles of Incorporation:
Resident agent, not necessarily authorized Only when that foreign corporation is
to execute certification against forum "transacting" or "doing business" in the country
shopping will a license be necessary before it can institute
suits. It may, however, bring suits on isolated
A resident agent is not necessarily authorized to business transactions, which is not prohibited
execute the requisite certification against forum under Philippine law. It is the act of engaging in
shopping. This is because while a resident agent business without the prescribed license, and not
may be aware of actions filed against his the lack of license per se, which bars a foreign
principal (a foreign corporation doing business in corporation from access to our courts. (Aboitiz
the Philippines), such resident may not be aware Shipping Corp. vs. Insurance Co. of NA, G.R. No.
of actions initiated by its principal, whether in 168402, August 6, 2008)
the Philippines against a domestic corporation or
Suability of foreign corporations:
private individual, or in the country where such
corporation was organized and registered, 1. A foreign corporation transacting business in
against a Philippine registered corporation or a the Philippines with the requisite license can
Filipino citizen. (Expertravel vs. Court of Appeals, be sued in Philippine courts.
G.R. No. 152392, May 26, 2005) 2. A foreign corporation transacting business in
the Philippines without a license can be sued
Amendment of license; when required:
in Philippine courts.
1. In the event the foreign corporation 3. If it is not doing business in the Philippines,
changes its corporate name; or it cannot be sued in Philippine courts for
2. When the foreign corporation desires to lack of jurisdiction. (Ladia, The Corporation
Code of the Philippines, Annotated, 2015)
pursue other or additional purposes in the
Philippines. (Sec. 148, RCC)
Doing business without license
The application shall be submitted to SEC and No foreign corporation transacting business in
must be favorably endorsed by the appropriate the Philippines without a license, or its
government agency in proper cases. successors or assigns, shall be permitted to
maintain or intervene in any action, suit or
PERSONALITY OF FOREIGN
proceeding in any court or administrative agency
CORPORATION TO SUE
of the Philippines; but such corporation may be
sued or proceeded against before Philippine
Personality to sue:
courts or administrative tribunals on any valid
1. A foreign corporation transacting or doing cause of action recognized under Philippine
business in the Philippines with a license can laws. (Sec. 150, RCC)
sue before Philippine courts.
Single act which constitute doing business
2. Subject to certain exceptions, a foreign
in the Philippines thus can be sued in
corporation doing business in the country
Philippine courts:
without a license cannot sue in Philippine
courts.
The rule that the doing of a single act does not
constitute business within the meaning of
3. If it is not transacting business in the
statutes prescribing the conditions to be
Philippines, even without a license, it can
complied with the foreign corporation must be
sue before Philippine courts. (Ladia, The
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Consolidation, defined: 2. The terms and mode of carrying 2018out the
merger or consolidation;
Consolidation is the uniting or amalgamation of 3. A statement of the changes, if any, in the
two or more existing corporations to form a new articles of incorporation of the surviving
corporation. (Ballantine, supra, pp. 680-681) corporation in case of merger; and, in case
of consolidation, all the statements required
Merger and consolidation, distinguished: to be set forth in the articles of
(Ladia, The Corporation Code of the Philippines, incorporation for corporations organized
Annotated, 2007, p. 424) under this Code; and
4. Such other provisions with respect to the
MERGER CONSOLIDATION proposed merger or consolidation as are
Uniting of two or Uniting or amalgamation
deemed necessary or desirable. (Sec. 75,
more corporations by of two or more existing
RCC)
the transfer of corporations to form a
property to one of new corporation.
them which continue ARTICLES OF MERGER OR
in existence, the CONSOLIDATION
other or the others Contents of Articles of Merger or
being dissolved and consolidation
merged therein.
There is no new A single new corporation After the approval of the plan of merger or
corporation created. is created. consolidation by the Board and by the
The other constituent All corporations are stockholders or members, articles of merger or
corporations are dissolved, but a new one articles of consolidation shall be executed by
dissolved except the is created.
each of the constituent corporations, to be
surviving corporation.
signed by the president or vice-president and
The surviving All assets, liabilities, and
corporation acquires capital stock of all certified by the secretary or assistant secretary
all the assets, consolidated corporation of each corporation setting forth:
liabilities, and capital are transferred to the new
stock of all corporation 1. The plan of the merger or the plan of
constituent consolidation;
corporations. 2. As to stock corporations, the number of
shares outstanding, or in the case of non-
stock corporations, the number of members;
CONSTITUENT AND CONSOLIDATED 3. As to each corporation, the number of
CORPORATION, DISTINGUISHED: shares or members voting for or against
(Ladia, The Corporation Code of the Philippines, such plan, respectively;
Annotated, 2007, p. 425) 4. The carrying amounts and fair values of the
assets and liabilities of the respective
Constituent Consolidated
companies as of the agreed cut-off date;
Corporation Corporation
5. The method to be used in the merger or
One of the parties to a The newly created
merger or consolidation. corporation when two consolidation of accounts of the companies;
or more corporations 6. The provisional or pro-forma values, as
are consolidated. merged or consolidated, using the
accounting method; and
PLAN OF MERGER OR CONSOLIDATION 7. Such other information as may be
prescribed by the Commission. (Sec. 77, RCC)
Contents of plan of merger or
consolidation PROCEDURE IN MERGER OR
CONSOLIDATION
1. The names of the corporations proposing to
merge or consolidate; Procedure in merger or consolidation
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4. The surviving or the consolidated merger, subject to existing 2018 contractual
corporation shall possess all the rights, obligations. (BPI vs. BPI Employees Union, G.R. No.
privileges, immunities and franchises of each 164301, October 11, 2011)
of the constituent corporation; and all real
or personal property, all receivables due on Liabilities of transferee corporation to
whatever account, including subscriptions to debts and other liabilities
shares and other choses in action, and every
other interest of, belonging to, or due to General Rule: Under the Nell Doctrine, where
each constituent corporation, shall be one corporation sells or otherwise transfers all of
deemed transferred to and vested in such its assets to another corporation, the latter is
surviving or consolidated corporation not liable for the debts and liabilities of the
without further act or deed; and transferor.
Note: The surviving or consolidated corporation A de facto merger can be pursued by one
assumes automatically the liabilities of the corporation acquiring all or substantially all of
dissolved corporations, regardless of whether the properties of another corporation in
the creditors have consented or not to such exchange of shares of stock of the acquiring
merger or consolidation. (Mcleod vs. NLRC, G.R. corporation. The acquiring corporation would
No. 146667, January 23, 2007) end up with the business enterprise of the
target corporation; whereas, the target
Employees of the absorbed corporation corporation would end up with basically its only
are absorbed by the surviving corporation remaining assets being the shares of stock of
the acquiring corporation. (Bank of Commerce vs.
It is more in keeping with the dictates of social RPN, Inc., G.R. No. 195615, April 21, 2014)
justice and state policy of according full
protection to labor to deem employment INVESTIGATIONS, OFFENSES, AND
contracts as automatically assumed by the PENALTIES
surviving corporation in a merger, even in the
absence of the express stipulation in the Articles AUTHORITY OF COMMISSIONER
of merger or merger plan.
Investigation and Prosecution of Offenses:
However, nothing in the Resolution shall impair
the right of an employer to terminate the The Commission may:
employment of the absorbed employees for a
lawful or authorized cause or the right of such 1. Investigate an alleged violation of the
employee to resign, retire, or otherwise sever Code, or of rule, regulation, or order of the
his employment, whether before or after the Commission.
Cease and Desist Orders If, after due notice and hearing, the Commission
finds that any provision of this Code, rules or
Whenever the SEC has reasonable basis to regulations, or any of the Commission‘s orders
believe that a person has violated, or is about to has been violated, the Commission may impose
violate this Code, a rule, regulation, or order of any or all of the following sanctions, taking into
the Commission, it may direct such person to consideration the extent of participation, nature,
desist from committing the act constituting the effects, frequency and seriousness of the
violation. (Sec. 156, RCC) violation:
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PROHIBITED ACTS AND PENALTIES 2018
public, penalty shall be
a fine ranging from
P400,000 to
Prohibited Acts Penalties P5,000,000. (Sec. 165,
RCC)
Fine ranging from Fine ranging from
1. Unauthorized use of 8. Acting as
P10,000 to P200,000. P100,000 to
corporate name intermediaries for graft
(Sec. 159, RCC) P5,000,000. (Sec. 166,
Fine ranging from and corrupt practices
RCC)
P10,000 to P200,000 Fine ranging from
and shall be 9. Engaging
P100,000 to
permanently disqualified intermediaries for graft
P1,000,000. (Sec. 167,
from being a director, and corrupt practices
RCC)
2. Violation of trustee or officer of any Fine ranging from
disqualification provision corporation. If injurious 10. Tolerating graft and P500,000 to
or detrimental to the corrupt practices P1,000,000. (Sec. 168,
public, penalty shall be RCC)
a fine ranging from Fine ranging from
P20,000 to P400,000. 11. Retaliation against P100,000 to
(Sec. 160, RCC) whistleblowers P1,000,000. (Sec. 169,
Fine ranging from RCC)
P10,000 to P200,000. If Fine of not less than
3. Violation of duty to injurious or detrimental 12. Other violation of P10,000 but not more
maintain records, to to the public, penalty the Code than P1,000,000. (Sec.
allow their inspection or shall be a fine ranging 170, RCC)
reproduction from P20,000 to
P400,000. (Sec. 161,
Liability of Directors, Trustees, Officers, or
RCC)
Fine ranging from
Other Employees
P20,000 to P200,000. If
4. Willful certification of injurious or detrimental If the offender is a corporation, the penalty
incomplete, inaccurate, to the public, penalty may, at the discretion of the court, be imposed
false, or misleading shall be a fine ranging upon such corporation and/or upon its directors,
statements or reports from P40,000 to trustees, stockholders, members, officers, or
P400,000. (Sec. 162, employees responsible for the violation or
RCC) indispensable to its commission. (Sec. 171, RCC)
Fine ranging from
P80,000 to P500,000. If
Liability of Aiders and Abettors and Other
has the effect of
5. Independent auditor causing injury to the Secondary Liability
collusion public, penalty shall be
a fine ranging from Anyone who shall aid, abet, counsel, command,
P100,000 to P600,000. induce, or cause any violation of this Code, or
(Sec. 163, RCC) any rule, regulation, or order of the Commission
Fine ranging from shall be punished with a fine not exceeding that
P200,000 to imposed on the principal offenders, at the
P2,000,000. If injurious discretion of the court, after taking into account
6. Obtaining corporate or detrimental to the
their participation in the offense. (Sec. 172, RCC)
registration through public, penalty shall be
fraud a fine ranging from
P400,000 to AUTHORITY OF THE SECURITIES AND
P5,000,000. (Sec. 164, EXCHANGE COMMISSION
RCC)
Fine ranging from Regulatory and Adjudicative Functions
7. Fraudulent conduct P200,000 to
of business P2,000,000. If injurious
or detrimental to the
Under its regulatory responsibilities, the SEC Powers, Functions, and Jurisdiction of the
may pass upon applications for, or may suspend Commission
or revoke (after due notice and hearing),
certificates of registration of corporations, The Commission shall have the power and
partnerships and associations (excluding authority to:
cooperatives, homeowners‘ associations, and
labor unions); compel legal and regulatory 1. Exercise supervision and jurisdiction over all
compliance; conduct inspections; and impose corporations and persons acting on their
fines or other penalties for violations of the behalf, except as otherwise provided under
Revised Securities Act, as well as implementing this Code;
rules and directives of the SEC, such as may be 2. Pursuant to Presidential Decree No. 902-A,
warranted. retain jurisdiction over pending cases
involving intra-corporate disputes submitted
Relative to its adjudicative authority, the SEC for final resolution. The Commission shall
has original and exclusive jurisdiction to hear retain jurisdiction over pending suspension
and decide controversies and cases involving — of payment/rehabilitation cases filed as of
30 June 2000 until finally disposed;
a. Intra-corporate and partnership relations 3. Impose sanctions for the violation of this
between or among the corporation, officers Code, its implementing rules and orders of
and stockholders and partners, including the Commission;
their elections or appointments; 4. Promote corporate governance and the
protection of minority investors, through
Note: The jurisdiction to hear and decide cases among others, the issuance of rules and
involving intra-corporate disputes was already regulations consistent with international
transferred from SEC to RTC, acting as a Special best practices;
Commercial Court. 5. Issue opinions to clarify the application of
laws, rules, and regulations;
b. State and corporate affairs in relation to the 6. Issue cease and desist orders ex parte to
legal existence of corporation, partnership prevent imminent fraud or injury to the
and associations or to their franchises; and public;
7. Hold corporations in direct and indirect
c. Investors and corporate affairs, particularly in contempt;
respect of devices and scheme, such as 8. Issue subpoena duces tecum and summon
fraudulent practices, employed by directors, witnesses to appear in proceedings before
officers, business associates, and/or other the Commission;
stockholders, partners, or members of 9. In appropriate cases, order the
registered firms; as well as examination, search and seizure of
documents, papers, files and records, and
d. Petitions for suspension of payment filed by books of accounts of any entity or person
corporations, partnership or associations under investigation as may be necessary
possessing sufficient property to cover all for the proper disposition of the cases,
their debts but which foresee the subject to the provisions of existing laws;
impossibility of meeting them when they 10. Suspend or revoke the certificate of
respectively fall due, or possessing incorporation after proper notice and
insufficient assets to cover their liabilities hearing;
and said entities are upon petition or motu 11. Dissolve or impose sanctions on
proprio, placed under the management of a corporations, upon final court order, for
Rehabilitation Receiver or management committing, aiding in the commission of, or
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Mercantile Law
in any manner furthering securities 2. Encourage the widest participation 2018 of
violations, smuggling, tax evasion, money ownership in enterprises,
laundering, graft and corrupt practices, or 3. Enhance the democratization of wealth,
other fraudulent or illegal acts; 4. Promote the development of the capital
12. Issue writs of execution and attachment to market,
enforce payment of fees, administrative 5. Protect investors,
fines, and other dues collectible under this 6. Ensure full and fair disclosure about
Code; securities,
13. Prescribe the number of independent 7. Minimize if not totally eliminate insider
directors and the minimum criteria in trading and other fraudulent or
determining the independence of a manipulative devices and practices which
director; create distortions in the free market. (Sec.
14. Impose or recommend new modes by 2, Securities Regulation Code)
which a stockholder, member, director, or
trustee may attend meetings or cast their C. SECURITIES, DEFINED:
votes, as technology may allow, taking into
account the company‘s scale, number of These are shares, participation or interests in a
shareholders or members, structure, and corporation or in a commercial enterprise or
other factors consistent with the basic right profit-making venture and evidenced by a
of corporate suffrage; certificate, contract, instrument, whether written
15. Formulate and enforce standards, or electronic in character. (Sec. 3.1, SRC)
guidelines, policies, rules and regulations to
carry out the provisions of this Code; and D. KINDS OF SECURITIES:
16. Exercise such other powers provided by law
or those which may be necessary or 1. Shares of stocks, bonds, debentures, notes,
incidental to carrying out the powers evidences of indebtedness, asset-backed
expressly granted to the Commission. securities;
2. Investment contracts, certificates of
In imposing penalties and additional monitoring interest or participation in a profit-sharing
and supervision requirements, the Commission agreement, certifies of deposit for a future
shall take into consideration the size, nature of subscription;
the business, and capacity of the corporation. 3. Fractional undivided interests in oil, gas or
other mineral rights;
No court below the Court of Appeals shall have 4. Derivatives like option and warrants;
jurisdiction to issue a restraining order, 5. Certificates of assignments, certificates of
preliminary injunction, or preliminary mandatory participation, trust certificates, voting trust
injunction in any case, dispute, or controversy certificates or similar instruments;
that directly or indirectly interferes with the 6. Proprietary or nonproprietary membership
exercise of the powers, duties and certificates in corporations; and
responsibilities of the Commission that falls 7. Other instruments as may in the future be
exclusively within its jurisdiction. (Sec. 179, RCC) determined by the Commission. (Sec. 3.1,
SRC)
V. SECURITIES Registration requirement, as general rule:
A. STATE POLICY Securities shall not be sold or offered for sale or
distribution within the Philippines, without a
The State shall: registration statement duly filed with and
approved by the SEC. Prior to such sale,
1. Establish a socially conscious, free market information on the securities, in such form and
that regulates itself, with such substance as the SEC may prescribe,
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Mercantile Law
Philippines (annotated) with The Securities Regulation Philippine Stock Exchange) between 2018
insiders and
Code (R.A. 8799) and Presidential Decree No. 902-A, outsiders.
pp. 647-649, Third Edition)
Insiders could have material information not yet
Prohibition on insider trading, known to the public about the company, and
requirements for a valid defense against they might use this information to benefit
the prohibition: themselves at the expense of the outsiders or
the public. Therefore, they must not trade in the
It shall be unlawful for an insider to sell or buy a shares of the company pending the disclosure of
security of the issuer, while in possession of such information to the public.
material information with respect to the issuer
or the security that is not generally available to Insider
the public, unless:
An insider means:
1. The insider proves that the information was 1. The issuer;
not gained from such relationship; or 2. A director or officer (or any person
2. If the other party selling to or buying from performing similar functions) of, or a
the insider (or his agent) is identified, the person controlling the issuer; gives or gave
insider proves: him access to material information about
the issuer or the security that is not
a. that he disclosed the information to the generally available to the public;
other party, or 3. A government employee, director, or officer
b. that he had reason to believe that the of an exchange, clearing agency and/or
other party otherwise is also in self-regulatory organization who has access
possession of the information. to material information about an issuer or a
security that is not generally available to
Presumption of sale being effected while
the public; or
in possession of material non-public
4. A person who learns such information by a
information
communication from any foregoing insiders
(Section 3.8, SRC)
A purchase or sale of a security of the issuer
made by an insider, or such insider‘s spouse or Information is “material non-public” if:
relatives by affinity or consanguinity within the
second degree, legitimate or common-law, shall 1. It has not been generally disclosed to the
be presumed to have been effected while in public and would likely affect the market
possession of material non-public information if price of the security after being
transacted after such information came into disseminated to the public and the lapse of
existence but prior to dissemination of such a reasonable time for the market to absorb
information to the public and the lapse of a the information; or
reasonable time for the market to absorb such 2. Would be considered by a reasonable
information: Provided, however, That this person important under the circumstances in
presumption shall be rebutted upon a showing determining his course of action whether to
by the purchaser or seller that he was not aware buy, sell or hold a security.
of the material non-public information at the
time of the purchase or sale. (Sec. 27, SRC) Prohibition on insider of communicating
material non-public information about the
What sought to be addressed: issuer to another who becomes an insider
and who is likely to buy or sell security of
What is sought to be addressed here is the the issuer
asymmetry in information about a ―public
company‖ (such as a company listed on the It shall be unlawful for any insider to
communicate material non-public information
For purposes of this subsection the If the tender offer is oversubscribed, the
term ―securities of the issuer sought or to be aggregate amount of securities to be
sought by such tender offer‖ shall include any acquired at the close of such tender offer
securities convertible or exchangeable into such shall be proportionately distributed across
securities or any options or rights in any of the selling shareholders with whom the
foregoing securities. (Subsection 27.4 [b]) acquirer may have been in private
negotiations and other shareholders. For
G.PROTECTION OF SHAREHOLDER purposes of SRC Rule 19.2.2, the last sale
INTERESTS that meets the threshold shall not be
consummated until the closing and
Tender Offer Rule completion of the tender offer]
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Mercantile Law
3. Any person or group of persons acting in reasonable terms or a chance to sell2018
their shares
concert, who intends to acquire thirty five at the same price as those of majority
percent (35%) of the outstanding voting stockholders. (Cemco Holdings, Inc. vs. National Life
shares or such outstanding voting shares Insurance Company, Inc. G.R. No. 171815, August 7,
that are sufficient to gain control of the 2007)
board in a public company through the
Exchange trading system shall not be The coverage of the mandatory tender
required to make a tender offer even if offer rule covers not only direct acquisition
such person or group of persons acting in but also indirect acquisition or “any type
concert acquire the remainder through a of acquisition.”
block sale if, after acquisition through the
Exchange trading system, they fail to The legislative intent of Section 19 of the
acquire their target of thirty five percent Securities Regulation Code is to regulate
(35%) or such outstanding voting shares activities relating to acquisition of control of the
that is sufficient to gain control of the listed company and for the purpose of
board. protecting the minority stockholders of a listed
4. Any person or group of persons acting in corporation. Whatever may be the method by
concert, who intends to acquire thirty five which control of a public company is obtained,
percent (35%) of the outstanding voting either through the direct purchase of its stocks
shares or such outstanding voting shares or through an INDIRECT means, mandatory
that are sufficient to gain control of the tender offer applies. What is decisive is the
board in a public company directly from determination of the power of control. The
one or more stockholders shall be required legislative intent behind the tender offer rule
to make a tender offer for all the makes clear that the type of activity intended to
outstanding voting shares. The sale of be regulated is the acquisition of control of the
shares pursuant to the private transaction listed company through the purchase of shares.
or block sale shall not be completed prior to Control may [be] effected through a direct and
the closing and completion of the tender indirect acquisition of stock, and when this takes
offer. place, irrespective of the means, a tender offer
5. If any acquisition that would result in must occur. The bottom line of the law is to give
ownership of over fifty percent (50%) of the shareholder of the listed company the
the total outstanding equity securities of a opportunity to decide whether or not to sell in
public company, the acquirer shall be connection with a transfer of control. (Cemco
required to make a tender offer under this Holdings, Inc. vs. National Life Insurance Company,
Rule for all the outstanding equity securities G.R. No. 171815, August 7, 2007)
to all remaining stockholders of the said
company at a price supported by a fairness Rules on proxy solicitation
opinion provided by an independent
financial advisor or equivalent third party. 1. Proxies must be issued and proxy solicitation
The acquirer in such a tender offer shall be must be made in accordance with rules and
required to accept all securities tendered. regulations to be issued by the SEC.
(Rule 19. 2 of 2015 Implementing Rules and 2. Proxies must be in writing, signed by the
Regulations of the Securities Regulation Code) stockholder or his duly authorized
representative and filed before the
Purpose of tender offer scheduled meeting with the corporate
secretary.
The purpose of tender offer rule is to protect the 3. Unless otherwise provided in the proxy, it
interest of minority stockholders of a target shall be valid only for the meeting for which
company against any scheme that dilutes the it is intended. No proxy shall be valid and
share value of their investments. It affords such effective for a period longer than five (5)
minority shareholders the opportunity to years at one time.
withdraw or exit from the company under
Any person filing any such application, report or 1. An issuer which has sold a class of its
document may make written objection to the securities pursuant to a registration under
public disclosure of information contained section 12 hereof.
therein, stating the grounds for such objection,
and the SEC may hear objections as it deems BUT the requirement shall be suspended for
necessary. The SEC may, in such cases, make any fiscal year after the year such
available to the public the information contained registration became effective if such issuer,
in any such application, report, or document as of the first day of any such fiscal year,
only when a disclosure of such information is has less than one hundred (100) holder of
required in the public interest or for the such class of securities or such other
protection of investors; and copies of number as the SEC shall prescribe and it
information so made available may be furnished notifies the SEC of such;
to any person having a legitimate interest 2. An issuer with a class of securities listed for
therein at such reasonable charge and under trading on an Exchange; and
such reasonable limitations as the SEC may 3. An issuer with assets of at least Fifty million
prescribe. pesos (50,000,000.00) or such other
amount as the SEC shall prescribe, and
It shall be unlawful for any member, officer, or having two hundred (200) or more holders
employee of the SEC to disclose to any person each holding at least one hundred (100)
other than a member, officer or employee of the share of a class of its equity securities.
SEC or to use for personal benefit, any
information contained in any application, report,
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Mercantile Law
The obligation of such issuer to file report shall issuer including but not limited2018
to transfer,
be terminated ninety (90) days after notification joint ventures, loan or option
to the SEC by the issuer that the number of its arrangements, puts or call guarantees or
holders holding at least one hundred (100) division of losses or profits, or proxies
shares is reduced to less than one hundred naming the persons with whom such
(100). contracts, arrangements, or understanding
have been entered into, and giving the
Disclosure by the Issuer (To the equity details thereof.
holders)
Note: If it appears to the SEC that securities
An annual report shall be furnished by every were acquired by person in the ordinary course
issuer which has a class of equity securities of his business and were not acquired for the
purpose of and do not have the effect of
Disclosure by Equity Holders changing or influencing the control of the issuer
nor in connection with any transaction having
Any person who acquires directly or indirectly such purpose or effect it may permit any person
the beneficial ownership of more than five of per to file in lieu of the statement required, a notice
centum (5%) of such class or in excess of such stating:
lesser per centum as the SEC by rule may 1. The name of such person;
prescribe, shall, within ten (10) days after such 2. The shares of any equity securities which
acquisition or such reasonable time as fixed by are owned by him;
the SEC, submit to: (1) the issuer of the 3. The date of their acquisition; and
securities; (2) to the Exchange where the 4. Such other information as the commission
security is traded; and (3) to the SEC, the may specify.
following information:
DISCLOSURE BY INSIDER
1. The personal background, identity,
residence, and citizenship of, and the An insider has the duty to disclose material
nature of such beneficial ownership by, information with respect to the issuer or the
such person and all other persons by whom security that is not generally available to the
or on whose behalf the purchases are public.
effected; in the event the beneficial owner
is a juridical person, the line of business of A beneficial owner of 10% of a public company
the beneficial owner shall also be reported; becomes a ―principal shareholder‖ required to
2. If the purpose of the purchases or disclose his interest to the SEC, the company,
prospective purchases is to acquire control and the Philippine Stock Exchange (if the
of the business of the issuer of the company is listed there). (Sec. 23, SRC)
securities, any plans or proposals which
such persons may have that will effect a VI. BANKING
major change in its business or corporate
structure; A. THE NEW CENTRAL BANK ACT (Republic
3. The number of shares of such security Act [R.A.] No. 7653, as amended by R.A.
which are beneficially owned, and the 11211)
number of shares concerning which there is
a right to acquire, directly or indirectly, by; Bangko Sentral ng Pilipinas (Bangko
(i) such person, and (ii) each associate of Sentral)
such person, giving the background,
identity, residence, and citizenship of each Bangko Sentral is a body corporate which serves
such associate; and as an independent central monetary authority of
4. Information as to any contracts, the State. (Sec. 2, New Central Bank Act [NCBA])
arrangements, or understanding with any
person with respect to any securities of the
Authority to require data from banks: Mechanism for issues arising from bank
examinations:
The authority of the Bangko Sentral to require
data from banks shall continue to be exercised The Bangko Sentral shall establish a mechanism
pursuant to its supervisory powers set forth in for issues arising from bank examinations. It
this Act and other applicable laws. shall be independent and reports directly to the
Monetary Board, without prejudice to the
Data, other than those gathered from authority of the Bangko Sentral and its Monetary
banks, shall not be made available to Board to take enforcement and supervisory
person or entity outside Bangko Sentral: actions against supervised entities. (Sec 25,
NCBA)
Data on individual and firms, other than banks,
gathered by the Bangko Sentral shall not be Authority to administer oaths and to
made available to any person or entity outside compel presentation of documents:
of the Bangko Sentral whether public or private
except under order of the court or under such The department heads and the examiners of the
conditions as may be prescribed by the supervising and/or examining departments are
Monetary Board: Provided, however, That the authorized:
collective data on firms may be released to
interested persons or entities.
Whenever, on the basis of a report submitted by The conservator shall receive remuneration to
the appropriate supervising or examining be fixed by the Monetary Board in an amount
department, the Monetary Board finds that a not to exceed two-thirds (2/3) of the salary of
bank or a quasi-bank is in a state of continuing the president of the institution in one (1) year,
inability or unwillingness to maintain a condition payable in twelve (12) equal monthly payments:
of liquidity deemed adequate to protect the
interest of depositors and creditors, the Provided: If at any time within the one-year
Monetary Board may appoint a conservator with period, the conservatorship is terminated on the
such powers as the Monetary Board shall deem ground that the institution can operate on its
necessary. (Sec. 29, NCBA) own, the conservator shall receive the balance
of the remuneration which he would have
Powers of Conservator: received up to the end of the year; but if the
conservatorship is terminated on other grounds,
1. To take charge of the assets, liabilities, and the conservator shall not be entitled to such
the management thereof; remaining balance. (Sec. 29, New NCBA)
2. To reorganize the management;
3. To collect all monies and debts due said Termination:
institution; and
4. To exercise all powers necessary to restore The Monetary Board shall terminate the
its viability. (Sec. 29, NCBA) conservatorship when:
General Rule: The conservator shall have the 1. It is satisfied that the institution can
power to overrule or revoke the actions of the continue to operate on its own and the
previous management and board of directors of conservatorship is no longer necessary; and
the bank or quasi-bank. (Sec. 29, NCBA) On the basis of the report of the
Exception: conservator or of its own findings, the
Monetary Board determines that the
While admittedly, the Central Bank law gives continuance in business of the institution
vast and far-reaching powers to the conservator would involve probable loss to its
of a bank, it must be pointed out that such depositors or creditors, in which case the
powers must be related to the preservation of provisions of Section 30 (Proceedings in
the assets of the bank, the reorganization of the Receivership and Liquidation) shall apply.
management thereof and the restoration of) its (Sec. 30, NCBA).
viability. Such powers, enormous and extensive
as they are, cannot extend to the post- 2. Closure
facto repudiation of perfected transactions,
otherwise they would infringe against the non- Grounds for closure: Bank or a Quasi-bank
impairment clause of the Constitution. (First
Philippine International Bank vs. CA, G.R. No. 115849, 1. Notice to Bangko Sentral or public
January 24, 1996) announcement of a unilateral closure (Sec.
30, NCBA);
Qualifications: 2. Being dormant for at least 60 days or
suspension of payment of deposit/deposit
The conservator should be competent and substitute liabilities (Sec. 30, NCBA);
knowledgeable in bank operations and 3. Cash Flow test - Inability to pay liabilities as
management. (Sec. 29, NCBA) they become due in the ordinary course of
business (Sec. 30, NCBA);
Duration: The conservatorship shall not exceed
1 year. (Sec. 29, NCBA)
Q: May the Monetary Board summarily First, Section 52(C) of the Tax Code of 1997
place a bank under receivership without pertains only to a regulation of the relationship
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Mercantile Law
between the SEC and the BIR with respect to Whenever, upon report of the head 2018of the
corporations contemplating dissolution or supervising or examining department, the
reorganization. On the other hand, banks under Monetary Board finds that a bank or quasi-bank:
liquidation by the PDIC as ordered by the
Monetary Board constitute a special case 1. Has notified the Bangko Sentral or publicly
governed by the special rules and procedures announces a unilateral closure;
provided under Section 30 of the New Central 2. Has been dormant for at least 60 days or in
Bank Act, which does not require that a tax any manner has suspended the payment of
clearance be secured from the BIR. Section deposit/deposit substitute liabilities;
52(C) of the Tax Code of 1997 and the BIR-SEC 3. Is unable to pay its liabilities as they
Regulations No. 120 regulate the relations only become due in the ordinary course of
as between the SEC and the BIR, making a business: Provided, that this shall not
certificate of tax clearance a prior requirement include inability to pay caused by
before the SEC could approve the dissolution of extraordinary demands induced by financial
a corporation. panic in the banking community;
4. Has insufficient realizable assets, as
Second, only a final tax return is required to determined by the Bangko Sentral, to meet
satisfy the interest of the BIR in the liquidation its liabilities; or
of a closed bank, which is the determination of 5. Cannot continue in business without
the tax liabilities of a bank under liquidation by involving probable losses to its depositors or
the PDIC. In view of the timeline of the creditors; or
liquidation proceedings under Section 30 of the 6. Has willfully violated a cease and desist
New Central Bank Act, it is unreasonable for the order under Section 37 that has become
liquidation court to require that a tax clearance final, involving acts or transactions which
be first secured as a condition for the approval amount to fraud or a dissipation of the
of project of distribution of a bank under assets of the institution.
liquidation. (PDIC vs. BIR, G.R. No. 172892, June
13, 2013) In these cases, the Monetary Board may
summarily and without need for prior hearing
3. Receivership forbid the institution from doing business in the
Philippines and designate the PDIC as receiver
Q: Who is a receiver? of the banking institution. (Sec. 30, NCBA)
GROUNDS
CONSERVATORSHIP CLOSURE RECEIVERSHIP LIQUIDATION*
A. A state of continuing A. Notice to the Bangko A. Notice to the Bangko A. Notice to the Bangko
inability; or Sentral or public Sentral or public Sentral or public
announcement of a announcement of a announcement of a
unilateral closure; unilateral closure; unilateral closure;
B. Unwillingness to
maintain a B. Has been dormant B. Has been dormant B. Has been dormant for
condition of for at least 60 days for at least 60 days at least 60 days or in
liquidity deemed or in any manner has or in any manner has any manner has
adequate to suspended the suspended the suspended the
protect the payment of payment of payment of
interest of deposit/deposit deposit/deposit deposit/deposit
depositors and substitute liabilities; substitute liabilities; substitute liabilities;
creditors. (Sec.
29, NCBA) C. Inability to pay C. Inability to pay its C. Inability to pay its
liabilities as they liabilities as they liabilities as they
become due in the become due in the become due in the
ordinary course of ordinary course of ordinary course of
business business business
Note: This shall not Note: This shall not Note: This shall not
include inability to include inability to include inability to
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Mercantile Law
pay caused by pay caused by pay 2018 by
caused
extraordinary extraordinary extraordinary
demands induced by demands induced by demands induced by
financial panic in the financial panic in the financial panic in the
banking community; banking community; banking community;
EFFECTS
b. Taxpayer who has filed an application for Q: Sally is the cashier of a corporation and
compromise of his tax liability by reason during her employment as a cashier, she
of financial incapacity (Sec 6 (F), NIRC). received checks from customers and
c. Taxpayer has signed a waiver authorizing endorsed the checks and deposited the
the Commissioner or his duly authorized same to her personal account in Security
representatives to inquire into the bank Bank. A complaint for qualified theft was
deposits. filed against Sally alleging that she took,
d. A specific taxpayer or tax payer‘s subject stole and carried away cash money. The
of a request for the supply of tax trial court issued subpoena duces tecum
information from a foreign tax authority /ad testificandum against managers of the
pursuant to an international convention bank. A representative of Security Bank
or agreement on tax matters to which gave testimony which sought to prove that
the Philippines is a signatory or a party as cashier, Sally was able to endorse the
of. (Sec. 3, RA 10021) checks and to deposit the same to her bank
account. Sally questioned the admissibility
9. Garnishment of a bank deposit of a judgment of testimony of the bank representative
debtor does not violate Secrecy of Bank since the information charged her of
Deposits Law (R.A. No. 1405). It was not the qualified theft of cash money and not theft
intention of the lawmakers to place bank of checks. She contended that taking such
deposits beyond the reach of execution to testimony as evidence against her is a
satisfy a final judgment. (China Banking violation of R.A. No. 1405. If the testimony
Corporation vs. Ortega, G.R. No. L-34964, January of the bank representative is admitted, will
31, 1973) there be violation of R.A. No. 1405?
10. Disclosure to the Treasurer of the Philippines
for dormant deposits for at least 10 years A: Yes, the testimony and any inquiry concerning
under the Unclaimed Balances Act. (Sec. 2, RA the transactions will be inadmissible as evidence
3936) for violating R.A. No. 1405 because such
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Mercantile Law
2018
information concerning respondent‘s account do lawmakers to place bank deposits beyond the
not appear to have any logical and reasonable reach of execution to satisfy a final judgment.
connection to the prosecution of respondent for (China Banking Corporation vs. Ortega, G.R. No. L-
committing the crime of qualified theft. 34964, January 31, 1973)
In the criminal Information filed with the trial Garnishment of Foreign Currency Deposits:
court, respondent, unqualifiedly and in plain
language, was charged with qualified theft by General rule: Foreign currency deposits shall
abusing petitioner‘s trust and confidence and be exempt from attachment, garnishment, or
stealing cash in the amount of P1,534,135.50. any other order or process of any
The said Information makes no factual allegation court, legislative body, government agency or
any administrative body whatsoever. (Sec. 8, RA
that in some material way involves the checks 6426)
subject of the testimonial and documentary
Exception: The application of Section 8 of R.A.
evidence sought to be suppressed. Neither do the
6426 depends on the extent of its justice. The
allegations in said Information make mention of
garnishment of a foreign currency deposit should
the supposed bank account in which the funds
be allowed to prevent injustice and for equitable
represented by the checks have allegedly been
grounds, otherwise, it would negate Article 10 of
kept.
the New Civil Code which provides that in case
of doubt in the interpretation or application of
Without needlessly expanding the scope of what
laws, it is presumed that the lawmaking body
is plainly alleged in the Information, the subject
intended right and justice to prevail. (Salvacion
matter of the action in this case is the money
vs. Central Bank of the Philippines, G.R. No. 94723,
amounting to P1,534,135.50 alleged to have August 21, 1997)
been stolen by respondent, and not the money
equivalent of the checks which are sought to be PENALTIES FOR VIOLATION
admitted in evidence.
Violation of the secrecy of bank deposits will
It comes clear that the admission of testimonial subject the offender upon conviction to:
and documentary evidence relative to
respondent‘s Security Bank account serves no 1. Imprisonment of not more than five (5)
other purpose than to establish the existence of years; or
such account, its nature and the amount kept in 2. Fine not more than P20,000 or
it. It constitutes an attempt by the prosecution at 3. Both, in the discretion of the court. (Sec. 5, RA
an impermissible inquiry into a bank deposit 1405, as amended)
account the privacy and confidentiality of which is
protected by law. (BSB Group, Inc. vs. Go, G.R. No. C. GENERAL BANKING LAW OF 2000 (R.A.
168644, February 16, 2010) NO. 8791)
The Security and Exchange Commission shall not maturities and aggregate amount of such
register articles of incorporation of any bank, or investment; and
any amendment thereto, unless accompanied by i. All other powers as may be necessary to
a certificate of authority issued by the Monetary carry on the business of a bank. (Sec. 29, GBL)
Board, under it seal. Such certificate shall not be
issued unless the Monetary Board is satisfied Powers or Functions of Banks; distinctions:
from the evidence submitted to it that:
1. Only universal banks and commercial banks
a. All requirements of existing laws and can create and accept demand deposits
regulations to engage in the business for without the separate authority from the
which the applicant is proposed to be Monetary Board; (Sec. 33, GBL)
incorporated have been complied with; 2. Only universal banks may act as an
b. The public interest and economic conditions, investment house; (Sec. 23, GBL)
both general and local, justify the 3. Generally, only universal banks and
authorization; and commercial banks may be involved in quasi-
banking functions. (Sec. 6, GBL)
The Monetary Board may regulate the Restrictions on Bank Exposure to Directors,
amount of loans, credit accommodations and Officers, Stockholders and Their Related
guarantees that may be extended, directly Interests (DOSRI)
or indirectly, by a bank to its directors,
officers, stockholders and their related General Rule: No director or officer of any bank
interests (DOSRI), as well as investments of shall directly or indirectly, for himself or as the
such bank in enterprises owned or controlled representative or agent of others:
by said directors, officers, stockholders and
their related interests. However, the 1. borrow from such bank;
outstanding loans, credit accommodations 2. become a guarantor, endorser or surety for
and guarantees which a bank may extend to loans from such banks to others;
each of its stockholders, directors, or officers 3. be an obligor or incur, in any manner, any
and their related interests, shall be limited to contractual liability to the bank (Sec. 36, GBL)
an amount equivalent to their respective
unencumbered deposits and book value of Exception: There is a written approval of the
their paid-in capital contribution in the bank majority of all the directors of the bank,
(Sec. 36, GBL). excluding the director concerned.
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Applicable to: Bank, quasi-bank, including their unsound manner as may be determined by the
subsidiaries and affiliates engaged in allied Monetary Board.
activities or other entity which under NCBA or
special laws is subject to Bangko Sentral In addition: Fines not in excess of One hundred
supervision or whenever any person or entity thousand pesos (₱100,000) for each transactional
willfully violates NCBA or other pertinent banking violation or Thirty thousand pesos (₱30,000) per
laws being enforced or implemented by the calendar day for violations of a continuing nature,
Bangko Sentral or any order, instruction, rule or the imposition of which shall be final and
regulation issued by the Monetary Board executory until reversed.
Note: Whenever a bank or quasi-bank persists in
carrying on its business in an unlawful or unsafe Applicable to: Banks and quasi-banks, including
manner, the Board may, without prejudice to the their subsidiaries and affiliates engaged in allied
penalties provided in the preceding paragraph of activities, and other entities which under NCBA or
this section and the administrative sanctions special laws are subject to Bangko Sentral
provided in Section 37 of this Act. supervision for any failure to comply with the
requirements of law, Monetary Board regulations
4. Administrative Sanctions on and policies, and/or instructions issued by the
Supervised Entities (Sec. 37): Fines in Monetary Board or by the Governor.
amounts as may be determined by the
Monetary Board to be appropriate, but in no
case to exceed One million pesos
(₱1,000,000) for each transactional violation Suspension or Removal of Director or
or One hundred thousand pesos (₱100,000) Officer
per calendar day for violations of a
continuing nature. 1. If the offender is a director or officer of a
bank, quasi-bank or trust entity, the
Monetary Board may also suspend or
Note: In case profit is gained or loss is avoided remove such director or officer (Sec. 66, GBL)
as a result of the violation, a fine no more than 2. The Monetary Board may preventively
three (3) times the profit gained or loss avoided suspend any director, officer or employee of
may also be imposed. the institution pending an investigation. (Sec.
37, NCBA)
Applicable to: Any bank, quasi-bank, including
their subsidiaries and affiliates engaged in allied Note: Should the case be not finally decided by
activities, or other entity which under NCBA or the Bangko Sentral within a period of one
special laws are subject to the Bangko Sentral hundred twenty (120) days after the date of
supervision, and/or their directors, officers or suspension, said director, officer or employee
employees, for any willful violation of its charter shall be reinstated in his position. However, when
or bylaws, willful delay in the submission of the delay in the disposition of the case is due to
reports or publications thereof as required by the fault, negligence or petition of the director or
law, rules and regulations; any refusal to permit officer, the period of delay shall not be counted
examination into the affairs of the institution; any in computing the period of suspension. (Sec. 37,
willful making of a false or misleading statement NCBA)
to the Board or the appropriate supervising and
examining department or its examiners; any Dissolution of Bank
willful failure or refusal to comply with, or
violation of, any banking law or any order, If the violation is committed by a corporation,
instruction or regulation issued by the Monetary such corporation may be dissolved by quo
Board, or any order, instruction or ruling by the warranto proceedings instituted by the Solicitor
Governor; or any commission of irregularities, General. (Sec. 66, GBL)
and/or conducting business in an unsafe or
2. A joint account regardless of whether the The fact that the certificates state that the
conjunction ―and‖, ―or‖, ―and/or‖ is used certificates are insured by PDIC does not ipso
shall be insured separately from any facto make the latter liable for the same should
individual owned deposit PROVIDED: the contingency insured against arise. The
deposit liability of PDIC is determined by the
a. If the account is held by two (2) or more provisions of R.A. No. 3519 and statements in the
natural persons or two (2) or more certificate that the same are insured by the PDIC
juridical persons or entities, the are not binding upon the latter. In order that a
maximum insured deposit shall be claim for deposit insurance with the PDIC may
divided into as many shares as there are prosper, the law requires that a corresponding
individuals, juridical persons or entities, deposit be placed in the insured bank. (PDIC vs.
unless a different sharing is stipulated in CA, G.R. No. 118917, December 22, 1997)
the document of deposit; AND
b. If the account is held by a juridical Deposit Liabilities Required to be Insured
person or entity jointly with one or more with PDIC:
natural persons, the maximum insured
deposit shall be presumed to belong The deposit liabilities of any bank which is
entirely to such juridical person or entity. engaged in the business of receiving deposits as
defined on the effective date of the PDIC Law, as
3. The aggregate of the interest of each co – amended, or which thereafter may engage in the
owner over several joint accounts, whether business of receiving deposits, shall be insured
owned by the same or different with the PDIC. (Sec. 6, PDIC Law)
combinations of individuals, juridical persons
or entities shall likewise be subject to the Commencement of Liability
maximum insured deposit of Php
500,000.00. PDIC shall commence the determination of
insured deposits due the depositors of a closed
4. No owner/holder of any passbook, certificate bank upon its actual takeover of the closed bank.
of deposit or other evidence of deposit shall
be recognized as a depositor entitled to the Notice to Depositors:
rights provided unless the passbook,
certificate of deposit or other evidence of PDIC shall give notice to the depositors of a
deposit is determined by the PDIC to be an closed bank of the insured deposits due them by
authentic document or record of the issuing whatever means deemed appropriate by the
bank. Board of Directors. The notice shall be published
once a week for at least three (3) consecutive
5. In case of a condition that threatens the weeks in a newspaper of general circulation or,
monetary and financial stability of the when appropriate, in a newspaper circulated in
banking system that may have systematic the community/ies where the closed bank or its
consequences as determined by the branches are located. (Sec. 21[a], PDIC Law)
Monetary Board, the maximum deposit
insurance cover may be adjusted in such
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Deposits Not Entitled to Payment equivalent received by a bank in the usual course
of business and for which it has given or is
1. Any obligation of a bank which is payable at obliged to give credit to a commercial, checking,
the office of the bank located outside of the savings, time or thrift account, or issued in
Philippines shall not be a deposit for any of accordance with Bangko Sentral rules and
the purposes of the PDIC Law, as amended, regulations and other applicable laws, together
or included as part of the total deposits or of with such other obligations of a bank, which,
insured deposit; consistent with banking usage and practices, the
2. Investment products such as bonds and Board of Directors shall determine and prescribe
securities, trust accounts, and other similar by regulations to be deposit liabilities of the bank.
instruments;
3. Deposit accounts or transactions which are The Act also provides that ―the Corporation shall
fictitious or fraudulent as determined by the not pay deposit insurance for investment
Corporation; products such as bonds and securities, trust
4. Deposit accounts or transactions constituting, accounts, and other similar instruments, whether
and/or emanating from, unsafe and unsound denominated, documented, recorded or booked
banking practice/s, as determined by the as deposit by the bank.
Corporation, in consultation with the Bangko
Sentral ng Pilipinas, after due notice and Extent of Liability
hearing, and publication of a directive to
cease and desist issued by the Corporation The amount of insured deposit is not to exceed
against such deposit accounts, transactions FIVE HUNDRED THOUSAND PESOS (PHP
or practices; and 500,000.00). (Sec. 5[j], PDIC Law)
5. Deposits that are determined to be the
proceeds of an unlawful activity as defined The term deposit means the unpaid balance of
under Republic Act No. 9160, as amended. money or its equivalent received by a bank in the
usual course of business and for which it has
Note: Subject to the approval of the Board of given or is obliged to give credit to a commercial,
Directors, any insured bank which is incorporated checking, savings, time or thrift account,
under the laws of the Philippines which maintains
a branch outside the Philippines MAY elect to evidenced by a passbook, certificate of deposit,
include for insurance its deposit obligations or other evidence of deposit issued in accordance
payable only at such branch. (Sec. 5[g], PDIC Law) with Bangko Sentral ng Pilipinas rules and
regulations and other applicable laws, together
When OCCIDENTAL Bank folded up due to with such other obligations of a bank, which,
insolvency, Manuel had the following consistent with banking usage and practices.
separate deposits in his name: P200,000 in (Sec. 5[g], PDIC Law)
savings deposit; P250,000 in time deposit;
P50,000 in a current account; P1 million in Determination of Insured Deposits
a trust account; and P3 million in money
market placement. Under the Philippine 1. In determining the amount due to any
Deposit Insurance Corporation Act, how depositor, there shall be added together all
much could Manuel recover? Explain. deposits in the bank maintained in the same
right and capacity for his or her benefit
Manuel may only recover P500,000.00 covering either in his or her own name or in the name
his savings and time deposits and his current of others.
account. He may not recover for his trust account
and money market placement as they are 2. A joint account regardless of whether the
considered investment products. conjunction ―and‖, ―or‖, ―and/or‖ is used
shall be insured separately from any
The PDIC Act provides that the term ‗deposit‘ individual owned deposit PROVIDED:
means the unpaid balance of money or its
Total insured amount is Php 500,000. All deposits Payment of Insured Deposits as Preferred
bank in the same right and capacity should be Credit
added together
All payments by the Corporation of insured
b. Lemuel and/or Daniel Joint Account deposits in closed banks partake of the nature of
public funds, and as such, must be considered a
Total insured amount is Php 500,000.00 and preferred credit in the order of preference under
Lemuel is entitled to Php 250,000. A joint account Article 2244 (9) of the New Civil Code. (Sec. 20,
regardless of whether the conjunction ―and‖, PDIC Law)
―or‖, ―and/or‖, is used shall be insured separately
from any individually owned deposit account and Failure to Settle Claim of Insured Depositor
the maximum insured deposit shall be divided
into two (2) equal shares. Failure to settle the claim, within six (6) months
from the date of filing of claim for insured
c. Lemuel Trust Account deposit, where such failure was due to grave
abuse of discretion, gross negligence, bad faith,
PDIC shall not pay deposit insurance for trust or malice, shall, upon conviction, subject the
accounts. directors, officers or employees of the
Corporation responsible for the delay, to
d. Lemuel Savings Deposit imprisonment from six (6) months to one (1)
year. (Sec. 19, PDIC Law)
PDIC shall not pay deposit insurance for accounts
that are determined to be proceeds of unlawful Note: The period shall not apply if the validity of
activity as defined under RA 9160, as amended the claim requires the resolution of issues of facts
and or law by another office, body or agency.
e. Salbros Corporation and Lemuel Checking
Account Failure of Depositor to Claim Insured
Deposits
An account that is held by a juridical person or
entity jointly with one or more natural persons, Unless otherwise waived by the PDIC, if the
the maximum insured deposit of Php 500,000 depositor in the closed bank shall fail to claim his
shall be presumed entirely to the juridical person insured deposits with the PDIC within two (2)
or entity, Salbros Corporation. years from actual takeover of the closed bank by
the receiver, or does not enforce his claim filed
Mode of Payment with the PDIC within two (2) years after the two-
year period to file a claim, all rights of the
1. Cash depositor against the PDIC shall be barred.
2. Transferred deposit in another insured bank
in an amount equal to insured deposit of However, all rights of the depositor against the
such depositor subject to submission of closed bank and its shareholders or the
proof of claims. (Sec. 19, PDIC Law)
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2018
B.PATENTABLE VS. NON – PATENTABLE
INVENTIONS In the case of drugs and medicines, the
mere discovery of a new form or new
Patentable invention, defined: property of a known substance which does
not result in the enhancement of the known
Any technical solution of a problem in any field of efficacy of that substance, or the mere
human activity which is new, involves an discovery of any new property or new use
inventive step and is industrially applicable. It for a known substance, or the mere use of a
may be, or may relate to, a product, or process, known process unless such known process
or an improvement of any of the foregoing. (Sec. results in a new product that employs at
21, IPC) least one new reactant.
An invention shall involve an inventive step if, What is goal of a patent system?
having regard to prior art, it is not obvious to a
person skilled in the art at the time of the filing The ultimate goal of a patent system is to bring
date or priority date of the application claiming new designs and technologies into the public
the invention. (Sec. 26, IPC) through disclosure; hence, ideas, once disclosed
to the public without protection of a valid patent,
Industrial applicability are subject to appropriation without significant
restraint. (Pearl & Dean (Phil.), Inc. vs. Shoemart,
An invention that can be produced and used in Inc., G.R. No. 148222, August 15, 2003)
any industry shall be industrially applicable. (Sec.
27, IPC) Three-fold purpose of patent law:
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2018
Remedy of the true and actual inventor published patent application, as if a patent had
been granted for that invention.
If a person, who was deprived of the patent
without his consent or through fraud is declared However, such third person must:
by final court order or decision to be the true and
actual inventor, the court shall: 1. Have an actual knowledge that the invention
that he was using was the subject matter of
1. Order for his substitution as patentee, or a published application; or
2. At the option of the true inventor, cancel the
patent, and award actual and other damages 2. Have received written notice that the
in his favor if warranted by the invention that he was using was the subject
circumstances. (Sec. 68, IPC) matter of a published application being
identified in the said notice by its serial
Rights conferred by a patent number: Provided, That the action may not
be filed until after the grant of a patent on
These rights are exclusive to the owner of the the published application and within four (4)
patent. years from the commission of the acts
complained of. (Sec .46, IPC)
Licensing
Prohibited Clauses
Modes of obtaining license to exploit patent
rights: 1. Those which impose upon the licensee the
obligation to acquire from a specific source
1. Voluntary Licensing capital goods, intermediate products, raw
2. Compulsory Licensing materials, and other technologies, or of
permanently employing personnel indicated
Voluntary Licensing by the licensor;
The grant of patent to enterprises that can 2. Those pursuant to which the licensor
commercially exploit the invention, whether by reserves the right to fix the sale or resale
manufacturing, distributing or retail selling. prices of the products manufactured on the
(Salao, Essentials of Intellectual Property Law, 2019, p. basis of the license;
111) 3. Those that contain restrictions regarding the
volume and structure of production;
Two objectives of the law: 4. Those that prohibit the use of competitive
technologies in a non-exclusive technology
1. To encourage transfer and dissemination of transfer agreement;
technology; and 5. Those that establish a full or partial purchase
option in favor of the licensor;
2. To prevent practices that may have an 6. Those that obligate the licensee to transfer
adverse effect on competition and trade. for free to the licensor the inventions or
(Ibid.) improvements that may be obtained through
the use of the licensed technology;
Mandatory Provisions in the Voluntary 7. Those that require payment of royalties to
Licensing Contract the owners of patents for patents which are
not used;
1. That the laws of the Philippines shall govern 8. Those that prohibit the licensee to export the
the interpretation of the same and in the licensed product unless justified for the
event of litigation, the venue shall be the protection of the legitimate interest of the
proper court in the place where the licensee licensor such as exports to countries where
has its principal office; exclusive licenses to manufacture and/or
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2018
distribute the licensed product(s) have Effect of non-conformance with the
already been granted; prohibited clauses and mandatory
9. Those which restrict the use of the provisions:
technology supplied after the expiration of
the technology transfer arrangement, except Non-conformance with any of the provisions of
in cases of early termination of the Sections 87 and 88, however, shall automatically
technology transfer arrangement due to
reason(s) attributable to the licensee; render the technology transfer arrangement
10. Those which require payments for patents unenforceable, unless said technology transfer
and other industrial property rights after their arrangement is approved and registered with the
expiration, termination arrangement; Documentation, Information and Technology
11. Those which require that the technology Transfer Bureau under the provisions of Section
recipient shall not contest the validity of any 91 on exceptional cases. (Sec. 92, IPC)
of the patents of the technology supplier;
12. Those which restrict the research and Example of Voluntary License Contract
development activities of the licensee
designed to absorb and adapt the transferred A technology transfer arrangement is in the
technology to local conditions or to initiate nature of Voluntary License Contract. (Salao,
research and development programs in Essentials of Intellectual Property Law, 2019, p. 114)
connection with new products, processes or
equipment; Compulsory Licensing
13. Those which prevent the licensee from
adapting the imported technology to local License issued by the Director General of the
conditions, or introducing innovation to it, as Intellectual Property Office to exploit a patented
long as it does not impair the quality invention without the permission of the patent
standards prescribed by the licensor; holder, either by manufacture or through parallel
14. Those which exempt the licensor for liability importation. (Sec. 4, RA 9502)
for non-fulfilment of his responsibilities under
the technology transfer arrangement and/or Grounds:
liability arising from third party suits brought
about by the use of the licensed product or 1. National emergency or other circumstances
the licensed technology; and of extreme urgency;
15. Other clauses with equivalent effects. (Sec. 2. Where the public interest, in particular,
87, IPC) national security, nutrition, health or the
development of other vital sectors of the
Exceptional Cases national economy as determined by the
appropriate agency of the Government, so
In exceptional or meritorious cases where requires; or
substantial benefits will accrue to the economy, 3. Where a judicial or administrative body has
such as high technology content, increase in determined that the manner of exploitation
foreign exchange earnings, employment by the owner of the patent or his licensee is
generation, regional dispersal of industries and/or anti-competitive; or
substitution with or use of local raw materials, or 4. In case of public non-commercial use of the
in the case of Board of Investments, registered patent by the patentee, without satisfactory
companies with pioneer status, exemption from reason;
any of the above requirements may be allowed 5. If the patented invention is not being worked
by the Documentation, Information and in the Philippines on a commercial scale,
Technology Transfer Bureau after evaluation although capable of being worked, without
thereof on a case by case basis. (Sec. 91, IPC) satisfactory reason: Provided, That the
importation of the patented article shall
constitute working or using the patent.
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Trade name 2. Consists of the flag or coat of arms or other
insignia of the Philippines or any of its
The name or designation identifying or political subdivisions, or of any foreign
distinguishing an enterprise. (Sec. 121.3, IPC) nation, or any simulation thereof;
3. Consists of a name, portrait or signature
Acquisition of ownership of mark identifying a particular living individual
except by his written consent, or the name,
The rights in a mark shall be acquired through signature, or portrait of a deceased
registration made validly in accordance with the President of the Philippines, during the life of
provisions of this law. (Sec. 122, IPC) his widow, if any, except by written consent
of the widow;
The right to register a trademark should be based 4. Is identical with a registered mark belonging
on ownership. When the applicant is not the to a different proprietor or a mark with an
owner of the trademark being applied for, he has earlier filing or priority date, in respect of:
no right to apply for the registration of the same. a. The same goods or services, or
Under the Trademark Law, only the owner of the b. Closely related goods or services, or
trademark, trade name or service mark used to c. If it nearly resembles such a mark as to
distinguish his goods, business or service from be likely to deceive or cause confusion;
the goods, business or service of others is 5. Is identical with, or confusingly similar to, or
entitled to register the same. An exclusive constitutes a translation of a mark which is
distributor does not acquire any proprietary considered by the competent authority of
interest in the principal's trademark and cannot the Philippines to be well-known
register it in his own name unless it has been internationally and in the Philippines,
validly assigned to him. (Superior Commercial whether or not it is registered here, as being
Enterprises, Inc. vs. Kunnan Enterprises, G.R. No. already the mark of a person other than the
169974, April 20, 2010) applicant for registration, and used for
identical or similar goods or services;
Acquisition of ownership of trade name 6. Is identical with, or confusingly similar to, or
constitutes a translation of a mark
Ownership of a mark or trade name may be considered well-known in accordance with
acquired not necessarily by registration but by the preceding paragraph, which is registered
adoption and use in trade or commerce. (Shangri- in the Philippines with respect to goods or
la International Hotel Management, Ltd., et al. vs. services
Developers Group of Companies, Inc., G.R. No. which are not similar to those with respect
159938, March 31, 2006)
to which registration is applied for: Provided,
That use of the mark in relation to those
A name or designation may not be used as a
goods or services would indicate a
trade name if by its nature or the use to which
connection between those goods or services,
such name or designation may be put, it is
and the owner of the registered mark:
contrary to public order or morals and if, in
Provided further, That the interests of the
particular, it is liable to deceive trade circles or
owner of the registered mark are likely to be
the public as to the nature of the enterprise
damaged by such use;
identified by that name. (Section 165.1, IPC)
7. Is likely to mislead the public, particularly as
to the nature, quality, characteristics or
Non-registrable marks
geographical origin of the goods or services;
1. Consists of immoral, deceptive or scandalous 8. Consists exclusively of signs that are generic
matter, or matter which may disparage or for the goods or services that they seek to
falsely suggest a connection with persons, identify;
living or dead, institutions, beliefs, or 9. Consists exclusively of signs or of indications
national symbols, or bring them into that have become customary or usual to
contempt or disrepute; designate the goods or services in everyday
239
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Two names are said to be ―idem sonans‖ if the on identical or similar goods or services and
attentive ear finds difficulty in distinguishing owned by persons other than the person
them when pronounced. (Martin vx. State, 541 S.W. claiming that his mark is a well-known mark.
2d 605)
Is it necessary that a foreign well-known
Well-known marks mark be registered in the Philippines
before said well-known mark may be
How determined: protected in the Philippines?
In determining whether a mark is well-known, No. The fact that [respondent‘s] marks are
account shall be taken of the knowledge of the neither registered nor used in the Philippines is of
relevant sector of the public, rather than of the no moment. The scope of protection initially
public at large, including knowledge in the afforded by Article 6b of the Paris Convention has
Philippines which has been obtained as a result of been expanded in the 1999 Joint
the promotion of the mark. (Sec. 123, IPC) Recommendation Concerning Provisions on the
Protection of Well-Known Marks, wherein the
Criteria in determining whether a mark is World Intellectual Property Organization (WIPO)
well known (Rule 102 of the Rules and Regulations General Assembly and the Paris Union agreed to
on Trademarks, Service Marks, Trade Names and a nonbinding recommendation that a well-known
Marked or Stamped Containers)
mark should be protected in a country even if the
mark is neither registered nor used in that
1. The duration, extent and geographical area
country. (Sehwani Incorporated and/or Benita‘s Frites
of any use of the mark in particular the
Inc. vs. In-N-Out Burger, Inc. G.R. No. 171053,
duration, extent and geographical area of October 15, 2007)
any promotion of the mark including
advertising or publicity and presentation, at Rights conferred by registration:
fairs or exhibitions, of the goods and/or
services to which the mark applies; 1. Right to the exclusive use of the mark for
2. The market share in the Philippines and in one‘s own goods or services. (Sec 138, IPC)
other countries of the goods and/ or services 2. Exclusive right to prevent all third parties
to which the mark applies; from using identical or similar signs or
3. The degree of the inherent or acquired containers. (Sec 147.1, IPC)
distinction of the mark; 3. Exclusive right to prevent all third person
4. The quality-image or reputation acquired by from
the mark; using mark indicating a connection between
5. The extent to which the mark has been those goods and services of third persons
registered in the world; and those of the owner of registered mark.
6. The exclusivity of the registration attained (Sec 147.2, IPC)
by the mark in the world;
7. The extent to which the mark has been used Right to the exclusive use of the mark for
in the world; one‟s own goods or services
8. The exclusivity of the use attained by the
mark in the world; A certificate of registration of a mark shall be
9. The commercial value attributed to the mark prima facie evidence of the validity of the
in the world; registration, the registrant‘s ownership of the
10. The record of successful protection of the mark, and of the registrant‘s exclusive right to
rights in the mark; use the same in connection with the goods or
11. The outcome of litigations dealing with the services and those that are related thereto
issue of whether the mark is a well-known specified in the certificate. (Sec 138, IPC)
mark; and
12. The presence of absence of identical or
similar marks validly registered for or used
The owner of a registered mark shall have the A trade name of a national of a State that is a
exclusive right to prevent all third parties not party to the Paris Convention, whether or not the
having the owner‘s consent from using in the trade name forms part of a trademark is
course of trade identical or similar signs or protected without the obligation of filing or
containers for goods or services which are registration‖ (Fredco Manufacturing Corp. vs.
identical or similar to those in respect of which President and Fellows of Harvard College, G.R. No.
the trademark is registered where such use 185917, June 1, 2011)
would result in a likelihood of confusion. In case
of the use, of an identical sign for identical goods Use of third parties of names, etc. Similar
or services, a likelihood of confusion shall be to registered trademark
presumed. (Sec. 147.1, IPC)
Notwithstanding any laws or regulations
Exclusive right to prevent all third person providing for any obligation to register trade
from using mark indicating a connection names, such names shall be protected, even prior
between those goods and services of third to or without registration, against any unlawful
persons and those of the owner of act committed by third parties. In particular, any
registered mark subsequent use of the trade name by a third
party, whether as a trade name or a mark or
The exclusive right of the owner of a well-known collective mark, or any such use of a similar trade
mark which is registered in the Philippines, shall name or mark, likely to mislead the public, shall
extend to goods and services which are not be deemed unlawful. (Rule 104, 2nd par., IPOPHL
similar to those in respect of which the mark is Memorandum Circular No. 17-010)
registered: Provided, that use of that mark in
relation to those goods or services would indicate Infringement and remedies
a connection between those goods or services
and the owner of the registered mark: Provided, Elements of trademark infringement
further, That the interests of the owner of the (RISCW)
registered mark are likely to be damaged by such
use. (Sec. 147.2, IPC) 1. The trademark being infringed is registered
in the Intellectual Property Office;
Effect of Registration 2. The trademark is reproduced, counterfeited,
copied, or colorably imitated by the
It must be emphasized that registration of a infringer;
trademark, by itself, is not a mode of acquiring 3. The infringing mark is used in connection
ownership. If the applicant is not the owner of with the sale, offering for sale, or
the trademark, he has no right to apply for its advertising of any goods, business or
registration. Registration merely creates a prima services; or the infringing mark is applied to
facie presumption of the validity of registration, labels, signs, prints, packages, wrappers,
of the registrant‘s ownership of the trademark receptacles or advertisements intended to be
and of the exclusive right to use thereof. Such used upon or in connection with such goods,
presumption, just like the presumptive regularity business or services;
in the performance of official function, is 4. The use or application of the infringing mark
rebuttable and must give way to evidence to the is likely to cause confusion or mistake or
contrary‖ (Birkenstock Orthopaedie GMBH and Co. Kg to deceive purchasers or others as to the
vs. Philippine Shoe Expo Marketing Corporation. G.R. goods or services themselves or as to the
No. 194307, November 20, 2013) source or origin of such goods or services or
the identity of such business; and
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5. The use or application of the infringing mark actually made out of the infringement, or in
is without the consent of the trademark the event such measure of damages cannot
owner or the assignee thereof. (Diaz vs. be readily ascertained with reasonable
People of the Philippines, G.R. No. 180677, certainty, then the court may award as
February 18, 2013) damages a reasonable percentage based
upon the amount of gross sales of the
Acts constituting trademark infringements defendant or the value of the services in
connection with which the mark or trade
Any person who shall, without the consent of the name was used in the infringement of the
owner of the registered mark: rights of the complaining party.
2. On application of the complainant, the court
1. Use in commerce any reproduction, may impound during the pendency of the
counterfeit, copy, or colorable imitation of a action, sales invoices and other documents
registered mark or the same container or a evidencing sales.
dominant feature thereof in connection with 3. In cases where actual intent to mislead the
the sale, offering for sale, distribution, public or to defraud the complainant is
advertising of any goods or services including shown, in the discretion of the court, the
other preparatory steps necessary to carry damages may be doubled.
out the sale of any goods or services on or in 4. The complainant, upon proper showing, may
connection with which such use is likely to also be granted injunction. (Sec. 156, IPC)
cause confusion, or to cause mistake, or to Damages which can be recovered from
deceive; or infringer
2. Reproduce, counterfeit, copy or colorably
imitate a registered mark or a dominant 1. The reasonable profit which the complaining
feature thereof and apply such reproduction, party would have made, had the defendant
counterfeit, copy or colorable imitation to not infringed his rights;
labels, signs, prints, packages, wrappers, 2. The profit which the defendant actually made
receptacles or advertisements intended to be out of the infringement; or
used in commerce upon or in connection with 3. A reasonable percentage based upon the
the sale, offering for sale, distribution, or amount of gross sales of the defendant or
advertising of goods or services on or in the value of the services in connection with
connection with which such use is likely to which the mark or trade name was used in
cause confusion, or to cause mistake, or to the infringement of the rights of the
deceive, shall be liable in a civil action for complaining party, which the court may
infringement by the registrant for the award as damages in the event such
remedies hereinafter set forth: Provided, measure of damages cannot be readily
That the infringement takes place at the ascertained with reasonable
moment any of the acts stated in Subsection
155.1 or this subsection are committed certainty. (Section 156.1, IPC)
regardless of whether there is actual sale of
goods or services using the infringing Notice requirement in recovering damages
material. (Sec. 155, IPC) for infringement
Remedies against trademark infringer: In any suit for infringement, the owner of the
registered mark shall not be entitled to recover
1. The owner of a registered mark may recover profits or damages unless the acts have been
damages from any person who infringes his committed with knowledge that such imitation is
rights, and the measure of the damages likely to cause confusion, or to cause mistake, or
suffered shall be either the reasonable profit to deceive. Such knowledge is presumed if the
which the complaining party would have registrant gives notice that his mark is registered
made, had the defendant not infringed his by displaying with the mark the words
rights, or the profit which the defendant ‗‖Registered Mark‖ or the letter R within a circle
Person who has property right in goodwill Particular acts constituting unfair
of identified goods, business or services competition, person liable:
protected
In particular, and without in any way limiting the
A person who has identified in the mind of the scope of protection against unfair competition,
public the goods he manufactures or deals in, his the following shall be deemed guilty of unfair
business or services from those of others, competition:
whether or not a registered mark is employed,
has a property right in the goodwill of the said 1. Any person, who is selling his goods and
goods, gives them the general appearance of goods
business or services so identified, which will be of another manufacturer or dealer, either as
protected in the same manner as other property to the goods themselves or in the wrapping
rights. (Sec. 168.1, IPC) of the packages in which they are contained,
Acts constituting unfair competition or the devices or words thereon, or in any
other feature of their appearance, which
Any person shall be guilty of unfair competition would be likely to influence purchasers to
who shall: believe that the goods offered are those of a
manufacturer or dealer, other than the actual
1. Employ deception, or any other means manufacturer or dealer, or who otherwise
contrary to good faith by which he shall pass clothes the goods with such appearance as
off the goods manufactured by him or in shall deceive the public and defraud another
which he deals, or his business, or services of his legitimate trade, or any subsequent
for those of the one having established such vendor of such goods or any agent of any
goodwill, or vendor engaged in selling such goods with a
like purpose;
2. Commit any acts calculated to produce said 2. Any person who by any artifice, or device, or
result. (Sec. 168.2, IPC) who employs any other means calculated to
induce the false belief that such person is
Does an infringement case constitute a offering the services of another who has
prejudicial question to an unfair identified such services in the mind of the
competition case? public; or
3. Any person who shall make any false
No. There is no prejudicial question since the two statement in the course of trade or who shall
actions are independent of each of other. The commit any other act contrary to good faith
basis of an action for unfair competition is fraud, of a nature calculated to discredit the goods,
while that of infringement, the fact of business or services of another. (Sec. 168.3,
registration. IPC)
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Difference between infringement of Requirements for registration
trademark and unfair competition:
The following minimum requirements shall be
INFRINGEMENT OF
UNFAIR COMPETITION
contained in the application form:
TRADEMARK
It is the unauthorized It is the passing off of 1. Name and address and contact details of the
use of a trademark; one‘s goods as those of
applicant or the address and contact details
another;
Fraudulent intent is Fraudulent intent is
of his representative, if any;
unnecessary; essential; 2. The Designated Contracting Parties;
Prior registration of the Registration is not 3. Reproduction of the mark; and
trademark is a necessary. 4. Indication of the goods and services for
prerequisite to the which registration of the mark is sought.
action. (Rule 5, IPOPHL Memorandum 17-011,
(Del Monte Corp. vs. CA, GR Nos. L-78325, January 25, "Philippine Madrid Regulations")
1990)
Term of protection
REGISTRATION OF MARKS UNDER THE
MADRID SYSTEM The term of protection under the Madrid Protocol
is valid for ten (10) years from the date of
Coverage registration. The registration is renewable at the
end of each 10-year period directly with the
These Regulations and the Common Regulations WIPO with effect in the designated Contracting
shall apply to all international applications filed Parties concerned. (Art. 6, Madrid Protocol)
under the Madrid Protocol where IPOPHL is the
Office of Origin, and international registrations D.COPYRIGHT
where the Philippines is a Designated Contracting
Party. (Rule 3, IPOPHL Memorandum 17-011, BASIC PRINCIPLES
"Philippine Madrid Regulations")
Rights conferred 1. Works are protected by the sole fact of their
creation. (Sec 172.2, IPC)
1. An international registration designating the 2. Copyright is distinct from the property in the
Philippines shall have the same effect, from material object subject to it. (Sec 181, IPC)
the date of the international registration, as News of today, office text of legislative or
if an application for the registration of the administrative or legal nature, not protected.
mark had been filed directly with the IPOPHL (Sec 175, IPC)
under the IP Code and the TM Regulations.
Works are protected by the sole fact of
2. If no refusal is notified by the IPOPHL to the their creation
International Bureau in accordance with the
Madrid Protocol and the Common Works are protected by the sole fact of their
Regulations, or if a refusal has been so creation, irrespective of their mode or form of
notified but has been subsequently expression, as well as of their content, quality
withdrawn, or if a statement of grant of and purpose. (Sec. 172.2, IPC)
protection is sent by the IPOPHL, the
protection of the mark in the Philippines Copyright is distinct from the property in
shall be the same as if the mark had been the material object subject to it
registered directly by the IPOPHL on the
date of the international registration. (Rule The copyright is distinct from the property in the
15, IPOPHL Memorandum 17-011, "Philippine material object subject to it. Consequently, the
Madrid Regulations") transfer or assignment of the copyright shall not
itself constitute a transfer of the material object.
Nor shall a transfer or assignment of the sole
No prior approval or conditions shall be required The author of a work shall, independently of the
for the use of any purpose of statutes, rules and economic rights or the grant of an assignment or
regulations, and speeches, lectures, sermons, license with respect to such right, have the right:
addresses, and dissertations, pronounced, read
or rendered in courts of justice, before 1. To require that the authorship of the works
administrative agencies, in deliberative be attributed to him, in particular, the right
assemblies and in meetings of public character. that his name, as far as practicable, be
(Sec 176.1, IPC) indicated in a prominent way on the copies,
and in connection with the public use of his
Collection of an author‟s work, author has work;
exclusive right 2. To make any alterations of his work prior to,
or to withhold it from publication;
The author of speeches, lectures, sermons, 3. To object to any distortion, mutilation or
addresses, and dissertations mentioned in the other modification of, or other derogatory
preceding paragraphs shall have the exclusive action in relation to, his work which would be
right of making a collection of his works. (Section prejudicial to his honor or reputation; and
176.2, IPC) 4. To restrain the use of his name with respect
to any work not of his own creation or in a
Rights of copyright owner distorted version of his work. (Sec. 193, IPC)
1. The employee, if the creation of the object of The publishers shall be deemed to represent the
copyright is not a part of his regular duties authors of articles and other writings published
even if the employee uses the time, facilities without the names of the authors or under
and materials of the employer. pseudonyms, unless the contrary appears, or the
2. The employer, if the work is the result of the pseudonyms or adopted name leaves no doubt as
performance of his regularly-assigned duties, to the author‘s identity, or if the author of the
unless there is an agreement, express or anonymous works discloses his identity. (Sec. 179,
implied, to the contrary. (Sec. 178.3, IPC) IPC)
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178.2, IPC) 2. Limitation to use; acts constituting copyright
Person commissioned,
infringement
Commissioned work Unless there is stipulation.
(Sec. 178.4, IPC) Limitation to copyright ownership
Producer (for exhibit)
Producer, author of scenario, Acts which do not constitute infringement
Audio Visual composer, film director, of copyright
author of work (other
purposes). (Sec 178.5, IPC) 1. The recitation or performance of a work,
Presumption: publisher once it has been lawfully made accessible to
Pseudonyms and
unless proved otherwise.
Anonymous Works the public, if done privately and free of
(Sec 179, IPC)
charge or if made strictly for a charitable or
Employer if part of his duties,
Employees if not part of his duties, religious institution or society;
employee. (Sec 178.3, IPC)
2. The making of quotations from a published
Duration of copyright protection: work if they are compatible with fair use and
only to the extent justified for the purpose,
DURATION including quotations from newspaper articles
TYPE OF WORK
(+ = AFTER DEATH) and periodicals in the form of press
Single creator / Life time and 50 years after summaries: Provided, That the source and
Newspaper article of death of creator. (Sec. 213, the name of the author, if appearing on the
creator IPC) work, are mentioned;
Lifetime of last surviving co-
creator and 50 years after
Joint creator The reproduction or communication to the
death of last surviving co-
creator. (Ibid.)
public by mass media of articles on current
50 years after 1st publication political, social, economic, scientific or
If author is revealed or religious topic, lectures, addresses and other
came to be known, lifetime works of the same nature, which are
and 50 years after death of delivered in public if such use is for
the author. information purposes and has not been
Anonymous or In case of co-authorship expressly reserved: Provided, That the source
pseudonymic work (authors became known), is clearly indicated;
lifetime and 50 years after
death of last surviving
3. The reproduction and communication to the
author or co-creator. (Ibid.)
25 years from date of
public of literary, scientific or artistic works as
Work of applied art. making or creation. (Ibid.) part of reports of current events by means of
Published – 50 years from photography, cinematography or
publication broadcasting to the extent necessary for the
Photographic work.
Unpublished- from purpose;
making. (Ibid.)
4. The inclusion of a work in a publication,
Limitations on copyright broadcast, or other communication to the
public, sound recording or film, if such
1. Limitation to copyright ownership; acts not inclusion is made by way of illustration for
constituting infringement: teaching purposes and is compatible with fair
use: Provided, That the source and of the
a. Acts provided for by Article 184.1 which name of the author, if appearing in the work,
do not constitute infringement of are mentioned;
copyright
b. Doctrine of fair use 5. The recording made in schools, universities,
or educational institutions of a work included
in a broadcast for the use of such schools,
Copyright Infringement
9. Public display of the original or a copy of the
work not made by means of a film, slide,
How committed:
television image or otherwise on screen or by
means of any other device or process: A person infringes a right protected under this
Provided, that either the work has been Act when one:
published, or, that the original or the copy
displayed has been sold, given away or 1. Directly commits an infringement;
otherwise transferred to another person by
the author or his successor in title; and 2. Benefits from the infringing activity of
another person who commits an infringement
10. Any use made of a work for the purpose of if the person benefiting has been given notice
any judicial proceedings or for the giving of of the infringing activity and has the right
professional advice by a legal practitioner. and ability to control the activities of the
(Sec. 184.1, IPC) other person;
3. With knowledge of infringing activity,
Doctrine of Fair Use induces, causes or materially contributes to
the infringing conduct of another. (Sec. 216,
The fair use of a copyrighted work for criticism, IPC as amended by Sec. 22, RA 10372)
comment, news reporting, teaching including
multiple copies for classroom use, scholarship,
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Remedies against copyright infringer 4. Deliver under oath for destruction without
any compensation all infringing copies or
1. To an injunction restraining such devices, as well as all plates, molds, or other
infringement. means for making such infringing copies as
the court may order.
The court may also order the defendant to 5. Such other terms and conditions, including
desist from an infringement, among others, the payment of moral and exemplary
to prevent the entry into the channels of damages, which the court may deem proper,
commerce of imported goods that involve an wise and equitable and the destruction of
infringement, immediately after customs infringing copies of the work even in the
clearance of such goods. event of acquittal in a criminal case. (Sec. 216,
IPC)
2. To pay to the copyright proprietor or his
assigns or heirs such actual damages, Other remedies:
including legal costs and other expenses, as
he may have incurred due to the In an infringement action, the court shall also
infringement as well as the profits the have the power to order the seizure and
infringer may have made due to such impounding of any article which may serve as
infringement. evidence in the court proceedings, in
accordance with the rules on search and
And in proving profits the plaintiff shall be seizure involving violations of intellectual
required to prove sales only and the property rights issued by the Supreme Court.
defendant shall be required to prove every (Sec. 216.2, IPC)
element of cost which he claims, or, in lieu of The foregoing shall not preclude an
actual damages and profits, such damages independent suit for relief by the injured
which to the court shall appear to be just and party by way of damages, injunction,
shall not be regarded as penalty. Provided, accounts or otherwise. (Sec. 216.2, IPC)
That the amount of damages to be awarded
shall be doubled against any person who: Criminal penalties
1. Selling, letting for hire, or by way of trade Consumer goods – Goods that are used or
offering or exposing for sale, or hire, the acquired for use primarily for personal, family or
article; household purposes.
2. Distributing the article for purpose of trade,
or for any other purpose to an extent that Control agreement – an agreement in writing
will prejudice the rights of the copyright between the grantor and secured creditor which
owner in the work; or
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perfects the security interests over intangible primarily used or intended to be used by the
asset. grantor in the operation of its business.
Operating lease – an agreement by which the Registration – the process of filing a notice as
owner temporarily grants the use of his property defined under these Rules with the Registry.
to another who undertakes to pay rent therefor.
Registry – the centralized and nationwide
Perfection – any act authorized by the PPSA electronic registry established in the Land
and these Rules that makes a security interest Registration Authority (LRA) where notice of a
binding as against third parties. security interest and a lien in personal property
may be registered.
Possession – the holding of a thing or
enjoyment of a right.
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Secured creditor – a person that has a security 2. Rule 3.08 – Security interest in certain
interest. For purposes of registration and accounts receivables;
priority only, it includes a buyer of an account 3. Rule 4.09 – Disposition of perfected security
receivable and a lessor of goods under an interest before default; and
operating lease for not less than one (1) year. 4. Rule 6.05 – Priority of purchase money
security interest
Securities account – an account maintained by
an intermediary to which securities may be Under the exceptions, this term includes money,
credited or debited. negotiable instruments, negotiable documents
and certificated non-intermediated securities but
Security – shares, participation or interests in a only if the mere possession of such instruments
corporation or in a commercial enterprise or results in the ownership of the underlying rights
profit-making venture and evidenced by a or property embodied by them, in accordance
certificate, contract, instruments, whether written with the laws governing such instruments.
or electronic in character. It includes but is not
limited to: Writing – for the purpose of the PPSA and its
Rules, includes electronic records.
1. Shares of stocks, bonds, debentures, notes as
evidenced of indebtedness, asset-backed Scope
securities;
2. Investment contracts, certificates of interest General rule: The PPSA shall apply to all
or participation in a profit-sharing agreement, transactions of any form that secure an obligation
certificates of deposit for a future with movable collateral. (Sec. 4, RA 11057)
subscription;
3. Fractional undivided interest in oil, gas or A security interest may be created over all forms
other mineral rights; of tangible or intangible asset or personal
4. Derivatives like options and warrants; property as defined by the Civil Code, including,
5. Certificates of assignments, certificates of but not limited to:
participation, trust certificates, voting trust
certificates or similar instruments; 1. Right arising from a contract, including but
6. Proprietary or nonproprietary membership not limited to:
certificates in corporations; and a. Securities
7. Other instruments as may in the future be b. Commodity contracts
determined by the SEC. c. Lease of goods including financial leases
and operating leases for a period of not
Security interest – a property right in collateral less than one (1) year
that secures payment or other performance of an
obligation, regardless of whether the parties have 2. Equipment;
denominated it as a security interest, and 3. Inventory;
regardless of the type of asset, the status of the 4. Deposit accounts;
grantor or secured creditor, or the nature of the 5. Negotiable instruments;
secured obligation; including the right of a buyer 6. Negotiable documents of title;
of accounts receivable and a lessor under an 7. Consumer goods;
operating lease for not less than one (1) year. 8. Intellectual property;
9. Livestock;
Tangible asset – means any tangible asset. 10. Fixture, accessions, and commingled goods;
or
Exceptions: 11. Future property or after-acquired assets.
1. Rule 3.07 – Security interest over intangible Note: A security interest can only be created on
assets commingled in a mass; the asset over which the grantor has a legal
right. (Sec. 2.03, IRR of RA 11057)
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3. Any stipulation limiting the grantor‘s right to in a mass to which a security interest extends is
create security interest shall be void. effective against third parties without any further
act. (Sec. 4.02, IRR of RA 11057)
4. This section applies only to accounts
receivable arising from: 2. Security interest in intangible asset may
a. A contract for supply or lease of goods or be perfected by:
services other than financial services;
b. A construction contract or contract for the a. Registration of a notice with the Registry;
sale or lease of real property; and or
c. A contract for the sale, lease or license of b. Conclusion of control agreement. (Sec.
intellectual property. (Sec. 3.08, IRR of RA 4.03, IRR of RA 11057)
11057)
3. Security interest in intermediated
Perfection of Security Interests securities or deposit accounts may be
perfected by:
A security interest shall be perfected when it has
been created and the secured creditor has taken a. Registration of a notice with the Registry;
one of the actions in accordance with the b. Creation of a security interest in favor of
following means: the deposit-taking institution or the
intermediary; or
1. Registration of a notice with the Registry; c. Conclusion of a control agreement. (Sec.
2. Possession of the collateral by the secured 4.04, IRR of RA 11057)
creditor; and Note:
3. Control of investment property and deposit Nothing in the Rules shall require a deposit-
account. (Secs. 11 (a) and 12, RA 11057) taking institution or an intermediary under
subsection (b) to enter into a control
Effect of perfection agreement, even if the grantor so requests.
A security interest becomes effective against third A deposit-taking institution or an
parties. (Sec. 11 (b), RA 11057) intermediary that has entered into such an
agreement shall not be required to confirm
Means of perfection of the following the existence of the agreement to another
security interests: person unless requested to do so by the
grantor. (Sec. 4.04, IRR of RA 11057)
1. A security interest in tangible asset may
be perfected by: 4. Security interest in electronic securities
non-intermediated securities may be
a. Registration of a notice with the Registry; perfected by:
or
a. Registration of a notice with the Registry;
b. Possession, whether actual or b. Execution of a control agreement
constructive, of the tangible asset either between the grantor and secured
by the secured creditor or a depositary creditor; or
acting for the secured creditor. Provided, c. Control, through notation of a security
that the debtor or the grantor cannot interest in the books maintained by or on
possess the collateral on behalf of the behalf of the issuer for the purpose of
secured creditor for purposes of recording the name of the holder of the
perfecting and maintaining the security securities. (Sec. 4.05, IRR of RA 11057)
interest over such collateral.
5. Security interest in investment property
If a security interest in a tangible asset is that is electronic (i.e. a scripless or
effective against third parties, a security interest
a. Registration of a notice with the Registry; a. Be executed in writing among the grantor,
or secured creditor, and intermediary; and
b. Execution of a control agreement among b. Stipulate that the commodity intermediary
the intermediary, the grantor and will apply any value distributed on account
secured creditor. (Sec. 4.06, IRR of RA of the commodity contract as directed by
11057) the secured creditor without further
consent by the commodity customer or
Note:
grantor.
Continuity of Perfected Security Interest
A security that is not registered remains valid
between the parties. (Sec. 4.06 (a), IRR of RA
A security interest shall remain perfected despite
11057)
a change in the means for achieving perfection:
Provided, that there was no time when the
For purposes of determining the time of
security interest was not perfected. (Sec. 15, RA
perfection of the security interest, the control
No. 11057 and Sec. 4.08, IRR of RA 11057)
agreement shall:
Rules on Disposition of Perfected Security
Be executed under oath; and
Interest Before Default
Include the date and time of its
execution. (Sec. 4.06, IRR of RA 11057)
1. As to Transferee, exceptions
Parties to, Form and Contents of a Control
Any party who obtains, in the ordinary course
Agreement (Sec. 4.07, IRR of RA 11057)
of business, any movable property containing
a security interest shall take the same free of
1. With respect to intermediated securities,
such security interest provided he was in
a control agreement shall:
good faith. No such good faith shall exist if
the security interest in the movable property
a. Be executed in writing by the issuer or the
was registered prior to his obtaining the
intermediary, the grantor and secured
property. (Sec. 4.09[a]), IRR of RA 11057)
creditor; and
b. Stipulate that the issuer or the
2. As to Perfection in Proceeds
intermediary agrees to follow instructions
from the secured creditor with respect to
a. Before default, upon disposition of the
the security, without further consent from
collateral, a security interest shall extend
the grantor.
to proceeds of the collateral without
further act and be continuously
2. With respect to rights to deposit account,
perfected, if the proceeds are in the form
a control agreement shall:
of money, accounts receivable,
negotiable
a. Be executed in writing among the deposit-
taking institution, the grantor and the
instruments or deposit accounts
secured creditor; and
(MAND).
b. Stipulate that the deposit-taking institution
agrees to follow instructions from the
b. Before default, upon disposition of the
secured creditor with respect to the
collateral, if the proceeds are in a form
payment of funds credited to the deposit
different from MAND, the security
account without further consent from the
interest in such proceeds must be
grantor.
perfected by one of the means applicable
to the relevant type of collateral within
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fifteen (15) days after the grantor
receives such proceeds; otherwise, the 2. The Registry shall index notices by the
security interest in such proceeds shall identification number of the grantor and, for
not be effective against third parties. notices containing a serial number of a motor
(Sec. 14, RA 11057 and Sec. 4.09[b]), IRR of vehicle, by serial number.
RA 11057) 3. The Registry shall provide a copy of the
electronic record of the notice, including the
Fixtures, Accessions, and Commingled registration number and the date and time of
Goods registration to the person who submitted it.
4. The Registry shall maintain the capability to
A perfected security interest in a movable retrieve a record by the identification number
property which has become a fixture, or has of the grantor, and by serial number of a
undergone accession or commingling shall motor vehicle.
continue provided the movable property involved 5. The Registry shall maintain records of lapsed
can still be reasonably traced. In determining notices for a period of ten (10) years after
ownership over fixtures, accessions and the lapse.
commingled goods, the provisions of Book II of 6. The duties of the Registry shall be merely
RA No. 386 or the ―Civil Code of the Philippines‖ administrative in nature. By registering a
shall apply. (Sec. 4.10, IRR of RA 11057) notice or refusing to register a notice, the
Registry does not determine the sufficiency,
Registration correctness, authenticity, or validity of any
information contained in the notice. (Sec. 35,
Establishment Registry RA 11057 and its Sec. 5.04, IRR of RA 11057)
a. Initial notice of security interest and lien a. Identifies the grantor by an indication
in personal property; number;
b. Amendment notice providing new
information or continuing the period of b. Identifies the secured creditor or an agent
effectiveness of an initial notice; and of the secured creditor by name;
c. Termination notice. c. Provides an address for the grantor and
secured creditor or its agent;
2. Provide electronic means for registration and d. Describes the collateral; and
searching of notices. e. The prescribed fee has been tendered, or
3. Issue the necessary guidelines on the use an agreement has been made for payment
and management of the Registry. (Sec. 5.01, of fees by other means. (Sec. 28, RA 11057
SIRR of RA 11057) and Sec. 5.05 (a), IRR of RA 11057)
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A termination notice terminates effectiveness as d. No security agreement exists between the
to each authorizing secured creditor. (Sec. 34, RA parties; or
11057) e. The security interest is extinguished in
accordance with PPSA and its IRR. (Sec. 39,
Amendment of Notice RA 11057)
A secured creditor shall not charge any fee for
1. Notice may be amended by the registration compliance with a demand received under
of an amendment notice that: Section 39. (Sec. 43, RA 11057)
a. Identifies the initial notice by its Within fifteen (15) working days upon receipt of
registration number; and the demand submitted under Section 39 of RA
b. Provides new information. (Sec. 32[a]), RA No. 11057, the secured creditor must register an
No. 11057) amendment or termination of notice as follows:
3. An amendment notice that adds a grantor If the secured creditor fails to comply with the
must be authorized by the added grantor in demand within fifteen (15) working days after its
writing. receipt, the person giving the demand under
Section 39 may ask the proper court to issue an
4. Amendment notice shall be effective only to order terminating or amending the notice as
each secured creditor who authorizes it. appropriate. (Sec. 41, RA 11057)
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grantor receives possession of the food or ii. Before the grantor receives
medicine. (Rule 6.03, IRR of RA 11057) possession of the inventory or
livestock, or acquires rights to
3. A person who provides services or materials intellectual property, the purchase
with respect to the goods, in the ordinary money secured creditor gives written
course of business, and retains possession of notification to the holder of the
the goods shall have priority over a perfected conflicting perfected security interest
security interest in the goods until payment may in the same types of IIL. The
thereof. (Sec. 6.04[a]), IRR of RA 11057) notification sent to the holder of the
conflicting security interest may
4. Subject to the applicable insolvency law, a cover multiple transactions between
security interest perfected prior to the the purchase money secured creditor
commencement of insolvency proceedings in and the grantor without the need to
respect of the grantor shall remain perfected identify each transaction.
and retain the priority it had before the
commencement of the insolvency d. Purchase money security interest in
proceedings. (Sec. 6.04[b]), IRR of RA 11057) equipment or consumer goods perfected
timely in accordance with subsection (a)
Note: During the insolvency proceedings, the and (b), shall have priority over the rights
perfected security interest shall constitute a lien of a buyer, lessee, or lien holder which
over the collateral. (Ibid.) arise between delivery of the equipment
or consumer goods to the grantor and the
5. Purchase money security interest time the notice is registered. (Sec. 6.05,
IRR of RA 11057)
a. A purchase money security interest in
equipment and its proceeds shall gave Enforcement of Security Interests
priority over a conflicting security interest,
if a notice relating to the purchase money Secured Creditor‟s Rights
security interest is registered within three
(3) business days after the grantor 1. Right of Redemption
receives possession of the equipment.
b. A purchase money security interest in General Rule: Any person who is entitled to
consumer goods that is perfected by receive a notification of disposition is entitled to
registration notice not later than three (3) redeem the collateral by paying or otherwise
business days after the grantor obtains performing the secured obligation in full,
possession of the consumer goods shall including the reasonable cost of enforcement.
have priority over a conflicting security
interest. Exception:
c. A purchase money security interest in
inventory, intellectual property or livestock The right of redemption may be exercised,
(IIL) shall have priority over conflicting unless:
perfected security interest in the same IIL
if: a. The person entitled to redeem has not, after
the default, waived in writing the right to
i. A purchase money security interest is redeem;
perfected when the grantor receives b. The collateral is sold or otherwise disposed of,
possession of the inventory or acquired or collected by the secured creditor
or until the conclusion of an agreement by the
livestock, or acquires rights to intellectual secured creditor for that purpose; and
property; and c. The secured creditor has retained the
collateral. (Sec. 45, RA No. 11057)
i. The security agreement so stipulates; iii. The secured creditor is entitled to an order
ii. Possession can be taken without breach granting possession of the collateral upon the
of the peace. (Sec. 7.02, IRR of RA 11057) court finding that a default has occurred
under the security agreement and that the
Breach of the peace shall include: secured creditor has a right to take
possession of the collateral. The court may
i. Entering the private residence of the direct the grantor to take such action as the
grantor without permission; court deems necessary and appropriate so
ii. Resorting to physical violence or that the secured creditor may take
intimidation; or possession of the collateral. (Sec. 7.03 [c],
iii. Being accompanied by a law enforcement IRR of RA 11057)
officer when taking possession or
confronting the grantor. (Ibid) 4. Recovery by the secured creditor without
judicial process upon default in the following
Where the collateral is a fixture, the secured cases
creditor may remove the fixture from the real
property to which it is affixed without judicial a. Instruct the account debtor to make
process, if he has priority over all owners and payment to the secured creditor, and
mortgagees. The secured creditor shall exercise apply such payment to the satisfaction of
due care in removing the fixture. (Ibid) the obligation secured by the security
interest after deducting the secured
creditor‘s reasonable collection expenses.
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On request of the account debtor, the i. identifies the grantor and the secured
secured creditor shall provide evidence of creditor;
its security interest to the account debtor ii. describes the collateral;
when it delivers the instruction to the iii. states the method of intended
account debtor; disposition; and
b. In a negotiable document that is iv. states the time and place of a public
perfected by possession, proceed as to disposition or the time after which other
the negotiable document or goods disposition is to be made.
covered by the negotiable document;
c. In a deposit account maintained by the • The requirement to send a notification under
secured creditor, apply the balance of the this section shall not apply if the collateral is:
deposit account to the obligation secured
by the deposit account; and i. Perishable or threatens to decline
d. In other cases of security interest in a speedily in value; or
deposit account perfected by control, ii. of a type customarily sold on a
instruct the deposit-taking institution to recognized market. (Sec. 51, RA 11057)
pay the balance of the deposit account to
the secured creditor‘s account. (Sec. 48, Procedures:
RA 11057)
a. After default, a secured creditor may sell or
5. Right to Dispose of Collateral otherwise dispose of the collateral, publicly or
privately, in its present condition or following
Requirements: any commercially reasonable preparation or
processing.
a. Default (Sec. 49[a]), RA 11057);
b. The secured creditor act in a • In disposing of collateral, the secured
commercially reasonable manner (Sec. creditor shall act in a commercially
50[a]), RA 11057); reasonable manner.
c. Not later than ten (10) days before the • A disposition is commercially reasonable
disposition, notice of disposition by the if the secured creditor disposes of the
secured creditor to the following: collateral in conformity with commercial
practices among dealers in that type of
i. The grantor; property.
ii. Any other secured creditor or lien • A disposition is not commercially
holder who, five (5) days before the unreasonable merely because a better
date notification is sent to the grantor, price could have been obtained by
held a security interest or lien in the disposition at a different time or by a
collateral that was perfected by different method from the time and
registration; and method selected by the secured creditor.
iii. Any other person from whom the • If a method of disposition of collateral
secured creditor received notification of has been approved in any legal
a claim of an interest in the collateral if proceeding, it is conclusively commercially
the notification was received before the reasonable.
secured creditor gave notification of
the proposed disposition to the b. The secured creditor may buy the collateral
grantor. at any public disposition, or at a private
disposition but only if the collateral is of a
• The grantor may waive the right to be kind that is customarily sold on a recognized
notified. market or the subject of widely distributed
• It is sufficient if it: standard price quotations. (Secs. 49 and 50,
RA 11057)
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during its term.
No Sale, lease or The buyer, b. The expiration of the transitional
licensing lessee or period. (Sec. 57[a]), RA 11057)
licensee of the
collateral shall
Note: If the perfection requirements of the
acquire the
rights or benefits
PPSA are satisfied before the perfection of
described in the a prior interest ceases, the prior interest
two (2) continues to be perfected under the PPSA from
preceding the time when it was perfected under the prior
scenarios in law. (Sec. 57[b], RA 11057)
this table.
If a prior interest referred herein was perfected
Provided, that it by the registration of a notice under prior law,
had no
the time of registration under the prior law shall
knowledge of a
violation of this
be the time to be used for purposes of applying
Chapter* that the priority rules of the PPSA. (Sec. 57[e]), RA
materially 11057)
prejudiced the
rights of the 5. If the perfection requirements of the PPSA
grantor or are not satisfied before the perfection of
another person. a prior interest ceases, the prior interest is
*Chapter 6, RA 11057 perfected only from the time it is perfected
under the PPSA. (Sec. 57[c]), RA 11057)
Prior Interests and the Transitional Period
If the perfection requirements of the PPSA
Prior interests are not satisfied before the perfection of
a prior interest ceases, the prior interest is
Priority interest means a security interest perfected only from the time it is perfected
created or provided for by an agreement or under the PPSA. (Sec. 57[c]), RA 11057)
other transaction that was made or entered into
before the effectivity of the PPSA and that had 6. A written agreement between a grantor and
not been terminated before the effectivity of the a secured creditor creating a prior interest is
said Act. sufficient to constitute authorization by the
grantor of the registration of a notice
1. It excludes a security interest that is covering assets described in that agreement
renewed or extended by a security under the PPSA. (Sec.[d]), RA 11057)
agreement or other transaction made or
entered into on or after the effectivity of 7. Priority of Prior Interests as against the
the Act. (Sec. 55[c]), RA 11057) rights of a competing claimant is determined
2. Its creation shall be determined by prior by the prior law if:
laws.
3. It remains effective between the parties a. The security interest and the rights of all
notwithstanding its creation did not competing claimant arose before the
comply with the creation requirements effectivity of the PPSA; and
of PPSA. (Sec. 56, RA 11057) b. The priority status of these rights has
4. A prior interest that was perfected under not changed since the effectivity of the
prior law continues to be perfected PPSA. For this purpose, the priority
under the PPSA until the earlier of: status of a prior interest has changed
only if:
a. The time the prior interest would
cease to be perfected under prior law;
and
1. If any step or action has been taken to In the accessory contract of real mortgage, in
enforce a prior interest before the effectivity which immovable property or real rights thereto
of the PPSA, enforcement may continue are used as security for the fulfillment of the
under prior law or may proceed under the principal loan obligation, the bid price may be
PPSA. lower than the property‘s fair market value. The
2. Subject to (1), prior law shall apply to a loan value itself is only 70 per cent of the
matter that is the subject of proceedings appraised value. A low bid price will make it
before a court before the effectivity of the easier for the owner to effect redemption by
PPSA. (Sec. 59, RA 11057) subsequently reacquiring the property or by
selling the right to redeem and thus recover
Transitional Period alleged losses. No personal notice is even
required, because an extrajudicial foreclosure is
It is the period from the date of effectivity of the an action in rem, requiring only notice by
PPSA until the date when the Registry has been publication and posting, in order to bind parties
established and operational. (Sec. 55 (d) of RA interested in the foreclosed property. (New
11057) Sampaguita Builders Construction Inc. et al., Phil.
Nat‘l Bank, G.R. No. 148753, July 30, 2004)
REAL ESTATE MORTGAGE LAW
Obligations Secured by Real Estate Mortgage
Definition
1. Valid obligations;
Real estate mortgage is an accessory contract 2. Voidable obligations;
by virtue of which real property is conveyed by 3. Unenforceable obligations;
way of security and a lien is created over a 4. Natural obligations; and
specific real property or properties with the 5. Conditional obligations. (Aquino Essentials of
condition that if the obligation secured is not Credit Transaction and Banking Laws, 2015,
paid, the mortgage may be foreclosed and the p.248)
property sold to answer for the mortgage credit.
(Aquino, Essentials of Credit Transaction and Banking Mortgage constituted to secure future
Laws, 2015, p.308) advances
Corollary, any evidence sufficiently overthrowing formalities required by law. (Art. 2128, NCC)
the presumption that the mortgagor owns the
mortgaged property precludes the application of The mortgagee acquires real right when
Article 2127. Otherwise stated, the provision is property is mortgaged. The mortgage right is
irrelevant and inapplicable to mortgages and their real property in itself under par. 10 of Article
resultant foreclosures if the mortgagor is later on of 415 of the NCC because it is an
found or declared to be not the true owner of the encumbrance over an immovable. Hence, the
property. (PNB vs. Sps. Maranon, G.R. No. 189316, mortgagee is an owner of an intangible
June 1, 2013) property that is the mortgage credit. As an
owner, he has the right to dispose the
After-acquired property mortgage credit.
1. A stipulation forbidding the owner from The consideration of the principal obligation
alienating the immovable mortgage shall be is the consideration for the mortgage.
void. (Art. 2130, NCC) (Filipinas Marble Corporation vs. Intermediate
Appellate Court, G.R. No. L-68010, May 30,
The mortgagor remains to be the owner of 1986)
the property despite the mortgage. Hence,
the mortgagor has the right to dispose the Real right is the power belonging to a
property. The mortgage contract cannot person over a specific thing without a
stipulate that mortgagor is prohibited from definite passive subject against whom such
transferring the mortgaged property. ―Such right may be exercised. It is enforceable
a prohibition would be contrary to the public against the whole world. Mortgage fall
good, inasmuch as the transmission of under the classification of real right that is a
property should not be unduly impeded. real right of security. (Aquino Essentials of
(Report of the Code Commission, p. 158) Credit Transactions and Banking Laws, 2015,
p.246)
2. In a sale with assumption of mortgage, the
alienation needs the consent of the Special Requisites:
mortgagee.
1. It can cover only immovable property and
Essential Requisites: alienable real rights imposed upon
immovables;
2. It must appear in a public instrument; and
Mere inadequacy of the price obtained at the 1. Mortgagee is entitled to recover deficiency.
sheriff‘s sale will not be sufficient to set aside the 2. If the deficiency is embodied in a judgment, it
sale unless ―the price is so inadequate as to is referred to as deficiency judgment.
shock the conscience of the court‖ taking into 3. Action for recovery of deficiency may be filed
consideration the peculiar circumstances even during redemption period.
attendant thereto. (Sulit vs. CA, G.R. No. 119247, 4. Action to recover prescribed after 10 years
Feb. 17, 1997) from the time the right of action accrues . (De
Leon Comment and Cases on Credit Transactions,
Should there remain a balance due to the 2010, p. 413)
mortgagee after applying the proceeds of the
sale; the mortgagee is entitled to recover the Extrajudicial foreclosure of real property
deficiency (Rule 68, ROC). This rule does not apply
to extrajudicial foreclosure of real estate Extrajudicial foreclosure must be STIPULATED in
mortgage. the contract.
The action to recover a deficiency after The law covers only real estate mortgages. It is
foreclosure prescribed after 10 years from the intended merely to regulate the extrajudicial sale
time the right of action accrues. (Arts. 1142 and of property mortgaged. (Act No. 3135)
1144, NCC)
The authority to sell is not extinguished by the
Period of Redemption: death of the mortgagor (or mortgagee) as it is an
essential and inseparable part of a bilateral
1. Extra-Judicial (Act. No. 3135) agreement (Perez vs. PNB, G.R. No. L- 21813, July
30, 1966)
Natural Person – One year from registration of
certificate of sale with the Registry of Deeds Nature of the power of foreclosure by
extrajudicial sale:
Juridical Person- same as a natural person.
1. Conferred for mortgagee‘s protection.
Juridical person (mortgagor) and bank 2. An ancillary stipulation
(mortgagee) – Three months after foreclosure or 3. A prerogative of the mortgagee.
before registration of certificate of foreclosure
whichever is earlier (Sec. 47, General Banking Law) Effects of inadequacy of price in foreclosure
sale:
2. Judicial – before confirmation of the sale by
the court except when the mortgagee is a 1. Where there is right to redeem, inadequacy of
banking institution, redemption will then be price is immaterial because the judgment
one year from the registration of sale (Sec. 25,
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2018
it remains registered in the name of the 5. As to Scope and Extent:
mortgagor. Such mortgage does not involve
a transfer, cession or conveyance of the a. Definite – the guaranty is limited to
property but only constitutes a lien thereon. the principal obligation only, or to a
(Medida vs. CA, G.R. No. 98334, May 8, 1992) specific portion thereof.
b. Indefinite or simple – one which not
GUARANTY only includes the principal obligation
but also all its accessories including
Definition: judicial costs.
The guarantor cannot be compelled to pay the The guarantor who pays is subrogated by virtue
creditor unless the latter has exhausted all the to all the rights which the creditor had against
property of the principal debtor, and has the debtor. (Art. 2067, NCC)
resorted to all of the legal remedies against
debtor. (Art. 2058 NCC) Whoever pays on behalf of the debtor without
the knowledge or against the will of the latter,
It is axiomatic that the liability of the guarantor cannot compel the creditor to subrogate him in
is only subsidiary. All the properties of the his rights, such as those arising from a
principal debtor must first be exhausted before mortgage, guaranty, or penalty. (NCC, Art. 1237)
his own is levied upon. Thus, the creditor may
hold the guarantor liable only after judgment Rights of Co-Guarantors
has been obtained against the principal debtor
and the latter is unable to pay, for obviously Should there be several guarantors of only one
the exhaustion of the principal‘s property – the debtor and for the same debt, the obligation to
benefit of which the guarantor claims – cannot answer for the same is divided among all. The
even begin to take place before judgment has creditor cannot claim from the guarantors
been obtained. (Baylon vs. CA, G.R. No. 109941, except the shares which they are respectively
August 17, 1999) bound to pay, unless solidarity has been
expressly stipulated. (Art. 2065, NCC)
Note: Please also refer to the topic on Effects
of Guaranty between Guarantor and the General Rule: Joint liability
Creditor for further discussion on the benefit of
excussion. Exceptions:
1. Demand for payment upon the guarantor Procedure When Creditor Sues:
only after judgment upon the debt; and
The guarantor cannot be sued with the
2. Point out the available property (not in principal, much less alone, except in Article
litigation or encumbered) of the debtor 2059.
within the Philippines, sufficient to cover
the amount of the debt. (Art. 2060, NCC) 1. The guarantor is still given the benefit of
exhaustion even if judgment should be
Effect of failure of the creditor to exhaust rendered against him and the principal
and resort to all legal remedies debtor. His voluntary appearance does not
constitute a renunciation of his right to
The creditor shall suffer the loss but only to the excussion. The guarantor may appear so
extent of the said property, for the insolvency that he may, if he so desire, set up such
of the debtor resulting from such negligence. defenses as are granted him by law.
(Art. 2061, NCC) (Art.2062, NCC)
Exceptions: The guarantor, even before having Guarantor of 3rd person at request of
paid, may proceed against the principal debtor: another
1. When he is sued for the payment; Guarantor may demand payment from:
2. In case of insolvency of the principal debtor; 1. Person who requested him to be a guarantor;
3. When the debtor has bound himself to relieve 2. Debtor (Art. 2072, NCC)
him from the guaranty within a specified
period, and this period has expired; Right to contribution of co-guarantor who
4. When the debt has become demandable, by pays:
reason of the expiration of the period for
payment; When there are two or more guarantors of the
5. After the lapse of ten years, when the same debtor and for the same debt, the one
principal obligation has no fixed period for its among them who has paid may demand of each
maturity, unless it be of such nature that it of the others the share which proportionally
cannot be extinguished except within a owing from him. (Art. 2073, NCC)
period longer than ten years;
6. If there are reasonable grounds to fear that Restrictions
the principal debtor intends to abscond;
7. If the principal debtor is in imminent danger It is required that the payment made to the
of becoming solvent. (Art. 2071, NCC) creditor by the guarantor who is seeking for the
reimbursement from his co-guarantor(s) the
In all cases, the action of the guarantor is to share which is proportionately owing him, must
obtain release from the guaranty, or to have been made (a) in virtue of a judicial
demand a security that shall protect him from demand or (b) because the principal debtor is
any proceedings by the creditor and from the insolvent. (Sadaya vs. Sevilla, G.R. No. L-17845, April
danger of insolvency of the debtor. (Art. 27, 1967)
2071, NCC) Art. 2071 is applicable and
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2018
Effect of insolvency of any co-guarantor: The guarantor may also set up against the
creditor all the defenses which pertain to the
If any of the guarantors should be insolvent, his principal debtor and are inherent in the
share shall be borne by the others, including the debt; but not those that are purely personal
paying guarantor, in the same proportion. (Art. to the debtor. (Art. 2081, NCC)
2073, NCC)
Exceptions:
Accrual/Basis of Right: Acquired ipso jure by
virtue of said payment without any prior cession 1. Creditor did not collect from 3rd persons
of rights to such guarantor. (Ibid.) 2. Obligations payable in installments
3. Waiver by guarantor
Defenses: The co-guarantors may set up 4. Extension granted by creditor on bond
against the one who paid, the same defenses 5. Extension granted to first tier obligors
which would have pertained to the principal cannot prejudice second tier parties
debtor against the creditor, and which are not
purely personal to the debtor. (Art. 2074, NCC) Legal and Judicial Bonds
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2018
LETTERS OF CREDIT carried to completion ends up as a binding
contract between the issuing and honoring
Definition banks without any regard or relation to the
underlying contract or disputes between the
A letter of credit is an engagement by a bank or parties thereto. (Transfield Philippines, Inc. vs.
other person made at the request of a customer Luzon Hydro Corp, GR No, 146717, May 19,
that the issuer will honor drafts or other demands 2006)
for payment upon compliance with the conditions
specified in the credit. (Bank of Commerce vs. Nature of Letter of Credit:
Serrano, G.R.s No. 151895, February 16, 2005;
Prudential Bank vs. Intermediate Appellate Court, et 1. The letter of credit evolved as a
al., G.R. No. 74886, December 8, 1992) mercantile specialty, and the only way to
understand all its facets is to recognize
Purpose: that it is an entity unto itself.
2. The relationship between the beneficiary
Through a letter of credit, the bank merely and the issuer of a letter of credit is not
substitutes its own promise to pay for the strictly contractual, because both privity
promise to pay for one of its customers who in and a meeting of the minds are lacking,
return promises to pay the bank the amount of yet strict compliance with its terms is an
funds mentioned in the letter of credit plus credit enforceable right.
or commitment fees mutually agreed upon. 3. Nor is it a third-party beneficiary contract,
Although letters of credit are normally used in because the issuer must honor drafts
trade of goods, it is also used as a security for drawn against a letter regardless of
other types of obligations including those arising problems subsequently arising in the
from loan agreements, contracts for the supply of underlying contract.
services or construction of buildings and 4. Since the bank's customer cannot draw on
infrastructure. (Aquino Essential of Credit the letter, it does not function as an
Transactions and Banking Laws, 2015 ep., p.393) assignment by the customer to the
beneficiary.
Concept: 5. Nor, if properly used, is it a contract of
suretyship or guarantee, because it entails
Those issued by one merchant to another for the a primary liability following a default.
purpose of attending to a commercial transaction. 6. Finally, it is not, in itself a negotiable
(Article 567, CC)
instrument, because it is not payable to
order or bearer and is generally
Letters of credit were developed for the purpose
conditional, yet the draft presented under
of insuring to a seller payment of a definite
it is often negotiable. (Transfield Philippines,
amount upon the presentation of documents and
Inc. vs. Luzon Hydro Corporation, G.R. No.
is thus a commitment by the issuer that the party 146717, November 22, 2004)
in whose favor it is issued and who can collect
upon it will have his credit against the applicant Letter of credit constitutes a primary
of the letter, duly paid in the amount specified in obligation:
the letter. (Metropolitan Waterworks and Sewerage
System vs. Daway, G.R. No. 160732, June 21, 2004) The letter of credit constitutes the primary
obligation, and not merely an accessory contract,
A letter of credit is a written instrument
of the issuing bank separate from the underlying
whereby the writer requests or authorizes
contract that it may support. Consequently, the
the addressee to pay money or deliver
beneficiary of a letter of credit issued to secure
goods to a third person and assumes for
payment of a loan may collect on its entirety,
payment of debt therefore to the addressee.
even if the borrower claims it made partial
A letter of credit, however, changes its
payments already. (Villanueva, Commercial Law
nature as different transactions occur and if
7. Straight Letter of Credit is one that does Letter of credit is perfected the moment when
not run in favour of purchases of drafts drawn the correspondent bank pays to the person in
thereunder. whose favor the letter of credit has been opened.
(Belman, Inc. vs. Central Bank, G.R. No. L-10195,
8. Fixed Letter of Credit can be exhausted November 29, 1958)
either when drafts for payment have been
drawn by the beneficiary for the full amount of Parties to a letter of credit:
the credit or when the time or period for
drawing upon the letter has expired. There would be at least three (3) parties to a
letter of credit arrangement:
1. To protect a debtor from lack of awareness 1. Loan, mortgage, deed of trust, advance or
of the true cost of credit; discount;
2. To allow the debtor to fully appreciate and 2. Conditional sales contract;
evaluate the true cost of his borrowing; and 3. Contract to sell, or sale or contract of sale of
3. To avoid circumvention of usury laws. (Sec. property or services, either for present or
2, RA 3756) future delivery;
4. Rental-purchase contract;
OBLIGATION OF CREDITORS TO PERSON 5. Contract or arrangement for the hire,
TO WHOM CREDIT IS EXTENDED bailment, or leasing of property;
6. Option, demand, lien, pledge, or other claim
Any creditor shall furnish to each person to whom against, or for the delivery of, property or
credit is extended, prior to the consummation money;
of the transaction, a clear statement in writing 7. Acquisition or purchase of any credit upon
setting forth, to the extent applicable and in security of any obligation arising out of any
accordance with rules and regulations prescribed of the above; and
by the Monetary Board of the Bangko Sentral ng 8. Any transaction or series of transactions
Pilipinas (Board), the following information: having a similar purpose or effect. (Sec. 3[2],
RA No. 3765)
1. The cash price or delivered price of the
property or service to be acquired; Creditor – means any person engaged in the
business of extending credit (including any
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appear to have originated from legitimate otherwise known as the Anti-Graft and
sources. (Sec. 4, AMLA) Corrupt Practices Act;
4. Plunder under Republic Act No. 7080, as
HOW ML IS COMMITTED amended;
5. Robbery and extortion under Articles 294,
ML is committed by any person who, knowing 295, 296, 299, 300, 301 and 302 of the
that any monetary instrument or property Revised Penal Code, as amended;
represents, involves, or relates to the proceeds of 6. Jueteng and Masiao punished as illegal
any unlawful activity: gambling under Presidential Decree No.
1602;
1. Transacts said monetary instrument or 7. Piracy on the high seas under the Revised
property; Penal Code, as amended and Presidential
2. Converts, transfers, disposes of, moves, Decree No. 532;
acquires, possesses or uses said monetary 8. Qualified theft under Article 310 of the
instrument or property; Revised Penal Code, as amended;
3. Conceals or disguises the true nature, source, 9. Swindling under Article 315 and Other Forms
location, disposition, movement or ownership of Swindling under Article 316 of the Revised
of or rights with respect to said monetary Penal Code, as amended;
instrument or property; 10. Smuggling under Republic Act Nos. 455 and
4. Attempts or conspires to commit money 1937;
laundering offenses referred to in paragraphs 11. Violations of Republic Act No. 8792,
(1), (2) or (3); otherwise known as the Electronic Commerce
5. Aids, abets, assists in or counsels the Act of 2000;
commission of the money laundering offenses 12. Hijacking and other violations under Republic
referred to in paragraphs (1), (2) or (3) Act No. 6235; destructive arson and murder,
above; and as defined under the Revised Penal Code, as
6. Performs or fails to perform any act as a result amended;
of which he facilitates the offense ofmoney 13. Terrorism and conspiracy to commit terrorism
laundering referred to in paragraphs (1), (2) as defined and penalized under Sections 3
or (3) above. and 4 of Republic Act No. 9372;
7. ML is also committed by any covered person 14. Financing of terrorism under Section 4 and
who, knowing that a covered or suspicious offenses punishable under Sections 5, 6, 7
transaction is required under this Act to be and 8 of Republic Act No. 10168, otherwise
reported to the AMLC, fails to do so. (Sec. 4, known as the Terrorism Financing Prevention
AMLA) and Suppression Act of 2012:
15. Bribery under Articles 210, 211 and 211-A of
UNLAWFUL ACTIVITIES OR PREDICATE the Revised Penal Code, as amended, and
CRIMES Corruption of Public Officers under Article
212 of the Revised Penal Code, as amended;
‗Unlawful activity‘ refers to any act or omission or
16. Frauds and Illegal Exactions and Transactions
series or combination thereof involving or having
under Articles 213, 214, 215 and 216 of the
direct relation to the following:
Revised Penal Code, as amended;
1. Kidnapping for ransom under Article 267 of 17. Malversation of Public Funds and Property
Act No. 3815, otherwise known as the under Articles 217 and 222 of the Revised
Revised Penal Code, as amended; Penal Code, as amended;
2. Sections 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 18. Forgeries and Counterfeiting under Articles
and 16 of Republic Act No. 9165, otherwise 163, 166, 167, 168, 169 and 176 of the
known as the Comprehensive Dangerous Revised Penal Code, as amended;
Drugs Act of 2002; 19. Violations of Sections 4 to 6 of Republic Act
3. Section 3 paragraphs B, C, E, G, H and I of No. 9208, otherwise known as the Anti-
Republic Act No. 3019, as amended, Trafficking in Persons Act of 2003;
No administrative, criminal or civil proceedings A person whose account has been frozen may file
shall lie against any person for having made a a motion to lift the freeze order and the court
covered or suspicious transaction report in the must resolve this motion before the expiration of
regular performance of his duties and in good the freeze order. (Ibid.)
faith, whether or not such reporting results in any
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3. Furnish Copy of Freeze Order to Owner or iv. Tax declarations for improvements
Holder. - The covered person and built on land owned by a different
government agency concerned shall likewise party, together with the annotation
immediately furnish a copy of the notice of of the contract of lease on the title
the freeze order upon the owner or holder of of the owner of the land as
the monetary instrument or property or registered in the Register of Deeds;
related accounts subject thereof. v. Certificates of registration for motor
vehicles and heavy equipment
4. Submit Detailed Return. - Within twenty-four indicating the engine numbers,
(24) hours from receipt of the freeze order, chassis numbers and plate numbers;
the covered person and government agency vi. Certificates of numbers for seacraft;
concerned shall submit, by personal delivery, vii. Registration certificates for aircraft;
to the Court of Appeals and to the AMLC, a or
written detailed return on the freeze order. viii. Commercial invoices or notarial
identification for personal property
The covered person shall also submit to the capable of manual delivery;
AMLC, through the internet, an electronic c. For covered persons and government
detailed return in a format to be prescribed agencies, whichever are applicable:
by the latter.
i. The names of the account holders,
5. Contents of the Detailed Return. - The personal property owners or
detailed return on the freeze order shall possessors, or real property owners
specify all the pertinent and relevant or occupants;
information, which shall include the ii. The value of the monetary
following: instrument, property, or proceeds as
of the time the assets were ordered
a. For covered persons: The account frozen;
numbers and/or description of the iii. All relevant information as to the
monetary instrument, property, or status and nature of the monetary
proceeds involved; instrument, property, or proceeds;
b. For concerned government agencies: iv. The date and time when the freeze
order were served; and
i. Certificates of title numbers of v. The basis for the identification of
registered real property and the the related accounts.
volumes and pages of the registration
books of the Register of Deeds where AUTHORITY TO INQUIRE INTO BANK
the same are registered; DEPOSITS
ii. Registration in the Primary Entry Book
and corresponding Registration Book The AMLC may inquire into or examine any
in particular deposit or investment with any banking
institution or non-bank financial institution. This
the Register of Deeds for can be either upon order of the court or even
unregistered real property; without court order in certain exceptional cases.
iii. Registration with the Register of (Sec. 11, AMLA)
Deeds of the enabling or master
A court order ex parte must first be obtained
deed for a condominium project,
before the AMLC can inquire into Related
declaration of restrictions relating to
Accounts. (Sec. 1[1.2], Rule 11, 2018 IRR of AMLA)
such condominium project,
certificate of title conveying a
condominium and notice of
assessment upon any condominium;
Upon determination that probable cause exists This provision shall also apply in both civil
that any monetary instrument or property is in and criminal forfeiture. (Sec. 12[b], AMLA)
any way related to an unlawful activity or ML
offense, the AMLC shall file with the regional trial Payment in Lieu of Forfeiture
court, through the Office of the Solicitor General,
a verified petition for civil forfeiture. Where the court has issued an order of forfeiture
of the monetary instrument or property subject of
The petition for civil forfeiture shall include an ML offense, and said order cannot be enforced
other monetary instrument or property of because:
equal value in cases where the monetary 1. any particular monetary instrument or
instrument or property that should be subject property cannot, with due diligence, be
of forfeiture: located;
This provision shall apply in both civil and Requirements for MLA Requests from
criminal forfeiture. Foreign States
Mutual Assistance among States All MLA requests from a foreign State must:
Mutual Legal Assistance (MLA) refers to the 1. confirm that an investigation or prosecution
formal method of cooperation between two is being conducted in respect of a money
jurisdictions for purposes of seeking assistance in launderer or terrorism financer named
the production of documents, asset freezing and therein, or that he has been convicted of any
forfeiture, extradition, enforcement of foreign ML/TF offense or associated unlawful activity;
judgment, and other kinds of legal assistance in 2. state the grounds on which any person is
criminal matters. (Sec. 1[jjj], Rule 2, 2018 RIRR of being investigated or prosecuted for ML/TF or
AMLA) associated unlawful activity or the details of
his conviction;
Where a foreign State makes an MLA request in 3. give sufficient particulars as to the identity of
the investigation or prosecution of a said person, including specific monetary
ML/Terrorism Financing (TF) offense, the AMLC instrument or property;
may execute the request or refuse to execute the 4. give particulars sufficient to identify any
same and inform the foreign State of any valid covered person believed to have any
reason for not executing the request or for information, document, material or object
delaying the execution thereof. which may be of assistance to the
investigation or prosecution;
Exception: 5. specify the concerned covered person from
which any information, document, materia lor
The AMLC may refuse to comply with any MLA object that may be of assistance to the
request where the action sought in the request:
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investigation or prosecution may be 2. giving information or documents needed by
gathered; the foreign State, for evidentiary purposes,
6. specify the manner in which and to whom within the procedures laid down in the AMLA
said information, document, material or and TFPSA, their respective IRR, and other
object obtained pursuant to said request, is AMLC issuances; and
to be produced;
7. give all the particulars necessary for the 3. applying for an order of forfeiture of any
issuance by the court in the requested State monetary instrument or property with the
of the writs, orders or processes needed by court: Provided, that the court shall not issue
the requesting State; and such an order unless the application is
8. contain such other information as may assist accompanied by an authenticated copy of the
in the execution of the request, including the order of a court in the requesting State
statement of the specific legal provision of ordering the forfeiture of said monetary
the penal law on ML/TF or associated instrument or property of a person who has
unlawful that was violated in the requested been convicted of a ML/TF offense or an
State. Provided, that the felonies or offenses unlawful activity in the requesting State, and
punishable under the penal laws of the a certification or an affidavit of a competent
requesting State are of a nature similar to the officer of the requesting State stating that
unlawful activities as herein defined. (Sec. 3, the conviction and the order of forfeiture are
Rule 29, 2018 RIRR of AMLA) final and that no further appeal lies in respect
of either. (Sec. 4[4.2], Rule 29, 2018 IRR of
Procedure for MLA Requests from Foreign AMLA)
States (Sec. 4, Rule 29, 2018 IRR of AMLA)
Investigation, Freeze Order, Bank Inquiry and
Receipt of MLA Request Civil Forfeiture
MLA requests shall be received by the following 1. The provisions on AMLC investigation, and
government agencies: freeze order, bank inquiry and civil forfeiture,
shall apply to MLA requests when necessary
1. All MLA requests from foreign States shall be to affect the assistance to be extended.
filed with the DOJ, as the central authority on
all MLA matters; or 2. The AMLC shall adopt a flexible mechanism
for:
2. The AMLC may directly receive and act on
MLA requests made on the basis of a. coordinating with other States regarding
reciprocity; Provided, that all actions taken requests for freezing and forfeiture of
on such requests shall be transmitted to the assets; and
DOJ for formal response to the requesting b. managing, including disposal, of frozen,
State. (Sec. 4[4.1], Rule 29, 2018 IRR of AMLA) preserved and forfeited assets.
Powers of the AMLC to Act on MLA Requests 3. The AMLC shall coordinate, if necessary, with
the requesting State on the, procedure for,
The AMLC may execute an MLA request and mode of, turnover of the portion of the
from a foreign State by: forfeited assets that belongs to the relevant
persons in the requesting State. (Sec. 4[4.3],
1. tracking down, freezing, restraining and Rule 29, 2018 IRR of AMLA)
seizing assets alleged to be proceeds of or
related to any unlawful activity under the Suppletory Application of the Rules of Court
procedures laid down in the AMLA and
TFPSA, their respective IRR, and other AMLC For attachment of Philippine properties in the
issuances; name of persons convicted of any unlawful
activity, execution and satisfaction of final
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5. Maintaining a stock of goods in the related activities, which may be approved
Philippines solely for the purpose of having pursuant to Section 8(b)(1) of the Act) of
the same processed by another entity in the the FINL.
Philippines;
6. Consignment by a foreign entity of Provided further that, as required by
equipment with a local company to be used existing laws, the country or state of the
in the processing of products for export; applicant must also allow Filipino citizens
7. Collecting information in the Philippines; and and corporations to do business therein.
8. Performing services auxiliary to an existing
isolated contract of sale which are not on a 2. Non-Philippine national qualified to do
continuing basis, such as installing in the business per paragraph (a) above, but who
Philippines machinery it has manufactured or will engage in more than one investment
exported to the Philippines, servicing the area, one or more of which is in the FINL,
same, training domestic workers to operate may be registered under the Act. However,
it, and similar incidental services. (Sec. 1(f), said non-Philippine national will not be
Rule 1, IRR of RA 7042) allowed to engage in the investment areas
which are in the FINL. (Sec. 1, Rule 4, IRR of
Export enterprise RA 7042)
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buildings, canals or other works, upon said 8. Legal expenses, and expenses incurred in the
buildings, canals or other works; administration of the insolvent's estate for
5. Mortgage credits recorded in the Registry of the common interest of the creditors, when
Property, upon the real estate mortgaged; properly authorized and approved by the
court;
6. Expenses for the preservation or
9. Taxes and assessments due the national
improvement of real property when the law
government, other than those mentioned in
authorizes reimbursement, upon the
articles 2241, No. 1, and 2242, No. 1;
immovable preserved or improved;
10. Taxes and assessments due any province,
7. Credits annotated in the Registry of Property,
other than those referred to in articles 2241,
in virtue of a judicial order, by attachments
No. 1, and 2242, No. 1;
or executions, upon the property affected,
11. Taxes and assessments due any city or
and only as to later credits;
municipality, other than those indicated in
8. Claims of co-heirs for warranty in the
articles 2241, No. 1, and 2242, No. 1;
partition of an immovable among them,
12. Damages for death or personal injuries
upon the real property thus divided;
caused by a quasi-delict;
9. Claims of donors or real property for
13. Gifts due to public and private institutions of
pecuniary charges or other conditions
charity or beneficence;
imposed upon the donee, upon
14. Credits which, without special privilege,
theimmovable donated;
appear in (a) a public instrument; or (b) in a
10. Credits of insurers, upon the property
final judgment, if they have been the
insured, for the insurance premium for two
subject of litigation. These credits shall have
years. (Art. 2242, NCC)
preference among themselves in the order
of priority of the dates of the instruments
Ordinary Preferred Credits
and of the judgments, respectively. (Art.
2244, NCC)
1. Proper funeral expenses for the debtor, or
children under his or her parental authority
Common Credits
who have no property of their own, when
approved by the court;
Credits of any other kind or class, or by any other
2. Credits for services rendered the insolvent by
right or title not comprised in the four preceding
employees, laborers, or household helpers for
one year preceding the commencement of articles, shall enjoy no preference. (Art. 2245,
NCC)
the proceedings in insolvency;
3. Expenses during the last illness of the debtor
Order of preference of credits
or of his or her spouse and children under his
or her parental authority, if they have no
1. There is preference with respect to taxes
property of their own;
only under Articles 2241 and 2242 of the
4. Compensation due the laborers or their
New Civil Code (NCC).
dependents under laws providing for
indemnity for damages in cases of labor
2. As to all other claims or liens mentioned in
accident, or illness resulting from the nature
Articles 2241 and 2242 of the NCC, there is
of the employment;
no order of preference and the balance
5. Credits and advancements made to the
(after taxes are deducted) of the proceeds
debtor for support of himself or herself, and
of the specific movable or immovable
family, during the last year preceding the
property as the case may be shall be divided
insolvency;
among the claimants or creditors in
6. Support during the insolvency proceedings,
proportion to the value of the claims or pro
and for three months thereafter;
rata.
7. Fines and civil indemnification arising from a
3. The excess of the specific property, if any,
criminal offense;
after the payment of the credits which enjoy
preference, shall be added to the free
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Suspension of Payments By the Debtor, when approved by:
Upon motion filed by the individual debtor, the 1. The owner – in case of sole proprietorship,
court may issue an order suspending any pending 2. Majority of the partners – in case of
execution against the individual debtor: Provided, partnership,
that properties held as security by secured 3. Majority vote of the board of directors or
creditors shall not be the subject of such trustees and authorized by the vote of the
suspension order. stockholders representing at least two-thirds
(2/3) of the outstanding capital stock – in
The suspension order shall lapse when three case of a Corporation, or
(3) months shall have passed without the 4. The vote of at least two-thirds (2/3) of the
propose agreement being accepted by the members, in a stockholder's or member's
creditors or as soon as such agreement is meeting duly called for the purpose – in case
denied. of a non-stock corporation (Sec. 12, RA 10142)
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2. Subject to the discretion of the court, to The effects of the Commencement Order and the
cases pending or filed at a specialized court Stay or Suspension Order on the suspension of
or quasi-judicial agency which, upon rights to foreclose or otherwise pursue legal
determination by the court is capable of remedies shall apply to government financial
resolving the claim more quickly, fairly and institutions, notwithstanding provisions in their
efficiently than the court: Provided, That charters or other laws to the contrary (Sec. 20, RA
any final and executory judgment of such 10142).
court or agency shall be referred to the
court and shall be treated as a non-disputed Rehabilitation Receiver
claim;
3. To the enforcement of claims against It shall refer to the person or persons, natural or
sureties and other persons solidarily liable juridical, appointed as such by the court pursuant
with the debtor, and third party or to this Act and which shall be entrusted with such
accommodation mortgagors as well as powers and duties as set forth herein (Sec. 4[hh],
issuers of letters of credit, unless the RA 10142)
property subject of the third party or
accommodation mortgage is necessary for If the rehabilitation receiver is a juridical entity, it
the rehabilitation of the debtor must designate a natural person/s who
as determined by the court upon possess/es all the qualifications and none of the
recommendation by the rehabilitation disqualifications as its representative, it being
receiver; understood that the juridical entity and the
4. To any form of action of customers or representative/s are solidarily liable for all
clients of a securities market participant to obligations and responsibilities of the
recover or otherwise claim moneys and rehabilitation receiver. (Sec. 28, RA 10142)
securities entrusted to the latter in the
ordinary course of the latter's business as Qualifications of a Rehabilitation Receiver
well as any action of such securities market
1. A citizen of the Philippines or a resident of
participant or the appropriate regulatory
the Philippines in the six (6) months
agency or self-regulatory organization to
immediately preceding his nomination;
pay or settle such claims or liabilities;
2. Of good moral character and with
5. To the actions of a licensed broker or dealer
acknowledged integrity, impartiality and
to sell pledged securities of a debtor
independence;
pursuant to a securities pledge or margin
3. Has the requisite knowledge of insolvency
agreement for the settlement of securities
and other relevant commercial laws, rules
transactions in accordance with the
and procedures, as well as the relevant
provisions of the Securities Regulation Code
training and/or experience that may be
and its implementing rules and regulations;
necessary to enable him to properly
6. The clearing and settlement of financial
discharge the duties and obligations of a
transactions through the facilities of a
rehabilitation receiver; and
clearing agency or similar entities duly
4. Has no conflict of interest: Provided, that
authorized, registered and/or recognized by
such conflict of interest may be waived,
the appropriate regulatory agency like the
expressly or impliedly, by a party who may
Bangko Sentral ng Pilipinas (BSP) and
be prejudiced thereby. (Sec. 29, RA 10142)
theSEC as well as any form of actions of
such agencies or entities to reimburse Powers, duties and responsibilities of
themselves for any transactions settled for Rehabilitation Receiver
the debtor; and
7. Any criminal action against individual debtor The rehabilitation receiver shall be deemed an
or owner, partner, director or officer of a officer of the court with the principal duty:
debtor shall not be affected by any
proceeding commend under this Act. (Sec.
18, RA 10142)
Registry of Claims Such claims shall become final upon the filling of
the register and may be subsequently set aside
Within twenty (20) days from his assumption into only on grounds or fraud, accident, mistake or
office the liquidator shall prepare a preliminary inexcusable neglect. (Sec. 125, RA 10142)
registry of claims of secured and unsecured
creditors. Submission of Disputed to the Court
Secured creditors who have waived their security The liquidator shall resolve disputed claims and
or lien, or have fixed the value of the property submit his findings thereon to the court for final
subject of their security or lien by agreement with approval. The liquidator may disallow claims .
the liquidator and is admitted as a creditor for the (Sec. 126, RA 10142)
balance, shall be considered as unsecured
creditors. Liquidation Plan
The liquidator may sell the unencumbered assets F. DATA PRIVACY ACT OF 2012
of the debtor and convert the same into money. (R.A. No. 10173)
The sale shall be made at public auction.
DEFINITION OF TERMS
However, a private sale may be allowed with the
approval of the court if: Personal information - refers to any
information whether recorded in a material form
1. The goods to be sold are of a perishable or not, from which the identity of an individual is
nature, or are liable to quickly deteriorate in apparent or can be reasonably and directly
value, or are disproportionately expensive to ascertained by the entity holding the information,
keep or maintain; or or when put together with other information
would directly and certainly identify an individual.
2. The private sale is for the best interest of the
debtor and his creditors. Consent of the data subject - refers to any
freely given, specific, informed indication of will,
With the approval of the court, unencumbered whereby the data subject agrees to the collection
property of the debtor may also be conveyed to a and processing of personal information about
creditor in satisfaction of his claim or part and/or relating to him or her.
thereof. (Sec. 131, RA 10142)
Consent shall be evidenced by:
Concurrence and Preference of Credits
1. written;
The Liquidation Plan and its Implementation shall 2. electronic; or
ensure that the concurrence and preference of 3. recorded means.
credits as enumerated in the Civil Code of the
Philippines and other relevant laws shall be
observed, unless a preferred creditor voluntarily
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It may also be given on behalf of the data 2. About an individual‘s health, education,
subject by an agent specifically authorized by the genetic or sexual life of a person, or to any
data subject to do so. proceeding for any offense committed or
alleged to have been committed by such
Data subject - refers to an individual whose person, the disposal of such proceedings, or
personal information is processed. the sentence of any court in such
proceedings;
Personal information controller - refers to a 3. Issued by government agencies peculiar to
person or organization who controls the an individual which includes, but not limited
collection, holding, processing or use of personal to, social security numbers, previous or
information, including a person or organization current health records, licenses or its denials,
who instructs another person or organization to suspension or revocation, and tax returns;
collect, hold, process, use, transfer or disclose and
personal information on his or her behalf. 4. Specifically established by an executive order
or an act of Congress to be kept classified.
The term excludes:
Commission - refers to the National Privacy
1. A person or organization who performs such Commission created by virtue of this Act. (Sec. 3,
functions as instructed by another person or RA 10173)
organization; and
2. An individual who collects, holds, processes SCOPE
or uses personal information in connection
with the individual‘s personal, family or The Act applies to the processing of all types of
household affairs personal information and to any natural and
juridical person involved in personal information
Processing - refers to any operation or any set processing including those personal information
of operations performed upon personal controllers and processors who, although not
information including, but not limited to: found or established in the Philippines, use
equipment that are located in the Philippines, or
1. Collection; those who maintain an office, branch or agency
2. Recording; in the Philippines subject to the immediately
3. Organization; succeeding paragraph: (Provided, That the
4. Storage; requirements of Section 5 are complied with)
5. Updating or modification;
6. Retrieval; (Note: Sec. 5, RA 10173- Protection Afforded to
7. Consultation; Journalists and Their Sources. – Nothing in this
8. Use; Act shall be construed as to have amended or
9. Consolidation; repealed the provisions of Republic Act No. 53,
10. Blocking; which affords the publishers, editors or duly
11. Erasure or destruction of data. accredited reporters of any newspaper, magazine
or periodical of general circulation protection
Privileged information - refers to any and all from being compelled to reveal the source of any
forms of data which under the Rules of Court and news report or information appearing in said
other pertinent laws constitute privileged publication which was related in any confidence
communication. to such publisher, editor, or reporter.)
Sensitive personal information - refers to This Act does not apply to the following:
personal information:
1. Information about any individual who is or
1. About an individual‘s race, ethnic origin, was an officer or employee of a government
marital status, age, color, and religious, institution that relates to the position or
philosophical or political affiliations; functions of the individual, including:
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3. Reasonable access to, upon demand, the b. Outdated;
following: c. False;
d. Unlawfully obtained;
a. Contents of his or her personal e. Used for unauthorized purposes; or
information that were processed; f. No longer necessary for the purposes for
which they were collected.
b. Sources from which personal
information were obtained; In this case, the personal information controller
c. Names and addresses of recipients may notify third parties who have previously
of the personal information; received such processed personal information;
d. Manner by which such data were and
processed;
e. Reasons for the disclosure of the 6. Be indemnified for any damages sustained
personal information to recipients; due to such inaccurate, incomplete,
f. Information on automated outdated, false, unlawfully obtained or
processes where the data will or likely unauthorized use of personal information.
to be made as the sole basis for any (Sec. 16, RA 10173)
decision significantly affecting or will
affect the data subject; Transmissibility of Rights of the Data
g. Date when his or her personal Subject
information concerning the data subject
were last accessed and modified; and
The lawful heirs and assigns of the data subject
h. The designation, or name or identity
may invoke the rights of the data subject for,
and address of the personal
which he or she is an heir or assignee at any time
information controller;
after the death of the data subject or when the
data subject is incapacitated or incapable of
4. Dispute the inaccuracy or error in the
exercising the rights as enumerated in the
personal information and have the personal
immediately preceding section. (Sec. 17, RA 10173)
information controller correct it immediately
and accordingly, unless the request is
vexatious or otherwise unreasonable. Right to Data Portability
If the personal information have been corrected, The data subject shall have the right, where
the personal information controller shall ensure personal information is processed by electronic
the accessibility of both the new and the means and in a structured and commonly used
retracted information and the simultaneous format, to obtain from the personal information
receipt of the new and the retracted information controller a copy of data undergoing processing
by recipients thereof: Provided, That the third in an electronic or structured format, which is
parties who have previously received such commonly used and allows for further use by the
processed personal information shall be informed data subject. The Commission may specify the
of its inaccuracy and its rectification upon electronic format referred to above, as well as
reasonable request of the data subject; the technical standards, modalities and
procedures for their transfer. (Sec. 18, RA 10171)
5. Suspend, withdraw or order the
blocking, removal or destruction of his or Non-Applicability
her personal information from the personal
information controller‘s filing system upon The immediately preceding sections are not
discovery and substantial proof that the applicable if:
personal information are:
1. The processed personal information are used
a. Incomplete; only for the needs of scientific and statistical
a. Safeguards to protect its computer network Notification may be delayed only to the extent
against accidental, unlawful or unauthorized necessary to determine the scope of the breach,
usage or interference with or hindering of to prevent further disclosures, or to restore
their functioning or availability; reasonable integrity to the information and
b. A security policy with respect to the communications system. (Sec. 20, RA 10173)
processing of personal information;
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Accountability for Transfer of Personal bargaining in respect of conditions of
Information employment. (Sec. 3, PCA)
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after due notice and hearing in accordance measures to promote transparency and
with the rules and regulations implementing accountability; and ensure that prohibitions
the Act; and requirements of competition laws are
7. Upon order of the court, undertake adhered to;
inspections of business premises and other 13. Conduct, publish, and disseminate studies
offices, land and vehicles, as used by the and reports on anti-competitive conduct and
entity, where it reasonably suspects that agreements to inform and guide the industry
relevant books, tax records, or other and consumers;
documents which relate to any matter 14. Intervene or participate in administrative and
relevant to the investigation are kept, in regulatory proceedings requiring
order to prevent the removal, concealment, consideration of the provisions of the Act that
tampering with, or destruction of the books, are initiated by government agencies such as
records, or other documents; the Securities and Exchange Commission, the
8. Issue adjustment or divestiture orders Energy Regulatory Commission and the
including orders for corporate reorganization National Telecommunications Commission;
or divestment in the manner and under such 15. Assist the National Economic and
terms and conditions as may be prescribed in Development Authority, in consultation with
the rules and regulations implementing the relevant agencies and sectors, in the
Act. preparation and formulation of a national
competition policy;
Adjustment or divestiture orders, which are 16. Act as the official representative of the
structural remedies, should only be imposed: Philippine government in international
competition matters;
a. Where there is no equally effective behavioral 17. Promote capacity building and the sharing of
remedy; or best practices with other competition-related
b. Where any equally effective behavioral bodies;
remedy would be more burdensome for the 18. Advocate pro-competitive policies of the
enterprise concerned than the structural government by:
remedy. Changes to the structure of an
enterprise as it existed before the a. Reviewing economic and administrative
infringement was committed would only be regulations, motu proprio or upon
proportionate to the substantial risk of a request, as to whether or not they
lasting or repeated infringement that derives adversely affect relevant market
from the very structure of the enterprise; competition, and advising the concerned
agencies against such regulations; and
9. Deputize any and all enforcement agencies of b. Advising the Executive Branch on the
the government or enlist the aid and support competitive implications of government
of any private institution, corporation, entity actions, policies and programs; and
or association, in the implementation of its 19. Charging reasonable fees to defray the
powers and functions; administrative cost of the services
10. Monitor compliance by the person or entities rendered. (Sec. 12, PCA)
concerned with the cease and desist order or
consent judgment; PROHIBITED ACTS
11. Issue advisory opinions and guidelines on
competition matters for the effective Anti-competitive agreements
enforcement of the Act and submit annual
and special reports to Congress, including 1. Per se violations
proposed legislation for the regulation of
commerce, trade, or industry; a. Restricting competition as to price, or
12. Monitor and analyze the practice of components thereof, or other terms of
competition in markets that affect the trade; and
Philippine economy; implement and oversee
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1. The share of the entity in the relevant restricts, or lessens competition, the PCC, in
market and the ability of the entity to fix appropriate cases, shall, inter alia:
prices unilaterally or to restrict supply in
the relevant market; 1. Define the relevant market allegedly affected
2. The share of other market participants in by the anti-competitive agreement or
the relevant market; conduct, following the principles laid out in
3. The existence of barriers to entry and the Section 24 of the Act and Rule 5 of these
elements which could foreseeably alter Rules;
both the said barriers and the supply
from competitors; 2. Determine if there is actual or potential
4. The existence and power of its adverse impact on competition in the
competitors; relevant market caused by the alleged
5. The credible threat of future expansion agreement or conduct, and if such impact is
by its actual competitors or entry by substantial and outweighs the actual or
potential competitors (expansion and potential efficiency gains that result from the
entry); agreement or conduct;
6. Market exit of actual competitors;
7. The bargaining strength of its customers 3. Adopt a broad and forward-looking
(countervailing power); perspective, recognizing future market
8. The possibility of access by its developments, any overriding need to make
competitors or other entities to its the goods or services available to consumers,
sources of inputs; the requirements of large investments in
9. The power of its customers to switch to infrastructure, the requirements of law, and
other goods or services; the need of our economy to respond to
10. Its recent conduct; international competition, but also taking
11. Its ownership, possession or control of account of past behavior of the parties
infrastructure which are not easily involved and prevailing market conditions;
duplicated;
12. Its technological advantages or 4. Balance the need to ensure that competition
superiority, compared to other is not prevented or substantially restricted
competitors; and the risk that competition efficiency,
13. It‘s easy or privileged access to capital productivity, innovation, or development of
markets or financial resources; priority areas or industries in the general
14. Its economies of scale and of scope; interest of the country may be deterred by
15. Its vertical integration; and overzealous or undue intervention; and
16. The existence of a highly developed
distribution and sales network. (Sec 2, 5. Assess the totality of evidence on whether it
Rule 8, IRR of PCA) is more likely than not that the entity has
Presumption of dominance engaged in anti-competitive agreement or
conduct, including whether the entity‘s
There shall be a rebuttable presumption of conduct was done with a reasonable
market dominant position if the market share of commercial purpose, such as but not limited
an entity in the relevant market is at least fifty to, phasing out of a product or closure of a
percent (50%), unless a new market share business, or as a reasonable commercial
threshold is determined by the PCC for that response to the market entry or conduct of a
particular sector. competitor. (Sec. 1, Rule 7, IRR of PCA)
In determining whether an anti-competitive The PCC may forbear from applying the
agreement or conduct substantially prevents, provisions of this Act, for a limited time, in whole
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