Professional Documents
Culture Documents
Credit Transactions Notes
Credit Transactions Notes
Morillo Notes
promise to pay to the personal commitment of
another such as a guarantor or surety.
CREDIT TRANSACTIONS
MORILLO NOTES MEANING OF BAILMENT:
- The delivery of property of one person to another in
Atty. Luis Alfonso A. Llaguno
trust for a specific purpose, with a contract
(express or implied) that the trust shall be faithfully
executed and the property returned or duly
INTRODUCTION: accounted for when the special purpose is
accomplished or kept until the bailor reclaims it.
- Generally, bailment may be a contractual relation. It
CONCEPT OF CREDIT TRANSACTION:
must contain all the elements of a valid contract
- Credit transactions include all transactions
under Art. 1318, NCC, or by operation of law.
involving the purchase or loan of goods, services,
or money in the present with a promise to pay or
ELEMENTS OF A BAILMENT:
deliver in the future.
1. the bailor retains title of the personal property;
- By the use of credit, more exchanges are possible,
2. The possession or temporary control of the
persons are able to enjoy a thing today but pay for
property is delivered (actually or constructively) to
it later, and through the banking system, actual
the bailee;
money transfer is eliminated by cancellation of
3. The bailee accepts possession of the property;
debts and credits.
4. The possession of the bailee is for a specific
purpose; and
DEFINITION OF CREDIT:
5. The parties intend that the identical property (or
- Any loan, mortgage, deed of trust, advance, or
tangible goods of the same quantity and quality)
discount; any conditional sales contract; any
will be returned to the bailor at the end of the
contract to sell, or sale or contract of sale of
bailment unless the bailor directs that it be given to
property or services, either for present or future
another person or its disposal by the bailee.
delivery, under which part or all of the price is
payable subsequent to the making of such sale or
PARTIES IN BAILMENT:
contract; any rental-purchase contract; any
1. Bailor (Comodatario) - the giver or the party who
contract or arrangement for the hire, bailment, or
delivers the possession or custody of the thing
leasing of property; any option, demand, lien,
bailed.
pledge, or other claim against, or for the delivery of,
2. Bailee (Comodante) - the recipient or the party who
property or money; any purchase, or other
receives the possession or custody of the thing
acquisition of, or any credit upon the security of,
thus delivered.
any obligation of claim arising out of any of the
foregoing; and any transaction or series of
KINDS OF CONTRACTUAL BAILMENT:
transactions having a similar purpose or effect.
A. Ordinary Bailments:
(Sec. 3(2), RA 3765)
a. Those for the sole benefit of the bailor -
this belongs to gratuitous deposit and
MEANING OF SECURITY:
mandatum.
- This is something given, deposited, or serving as a
b. Those for the sole benefit of the bailee -
means to ensure the fulfillment or enforcement of
refers commodatum and gratuitous simple
an obligation or of protecting some interest in
or muttum.
property.
c. Those for the benefit of both parties -
- The security may be personal security, as when an
includes deposit for a compensation,
individual becomes a surety or a guarantor; or a
including involuntary deposit, pledge, and
property or real security, as when a mortgage,
bailment for hire.
pledge, antichresis, charge or lien or other device
used to have a property held, out of which the
person to be made secure can be compensated for NOTE: The first two kinds are the gratuitous bailments. In such bailments,
there is really no consideration for they are considered more as a favor by
loss. Thus, a secured creditor is one who holds a
one party to the party benefited; but the law imposes definite obligations
security from his debtor for payment of the latter’s upon both the bailor and the bailee. The third kind, usually results from
debts. (Navos vs. CA, 251 SCRA 545) bailments involving business transactions. These bailments are known as
mutual-benefit bailments.
CREDIT TRANSACTIONS 1
CREDIT TRANSACTIONS
Morillo Notes
KINDS OF BAILMENT FOR HIRE: - The ownership passes to the borrower
1. Hire of things (locatio rei) - where goods are (Art. 1933, NCC)
delivered for the temporary use of the hirer. (ie.
Lease, Arts. 1642-1643, NCC) LOAN AS DISTINGUISHED FROM OTHER CONTRACTS:
2. Hire of service (locatio operis faciendi) - where
LOANS CREDIT (Individual)
goods are delivered for some work or labor upon it
by the bailee. (ie. Contract for a Piece of Work; Art.
The delivery by one party Ability of a person to
1713, NCC)
(lender or creditor), and the borrow money or things (or
3. Hire for carriage of goods (locatio operis mercium
receipt by the other party purchase things) by virtue
vehendarum) - Where goods are delivered either to
(borrower or debtor) who of the confidence or trust
a common carrier, or to a private person for the
become the owner of a reposed by a lender that
purpose of being carried from place to place. (see
given sum of money or he will pay what he may
Art. 1732, NCC)
other consumable thing promise within a specified
4. Hire of custody (locatio custodiae) - Where goods
upon an agreement to period.
delivered for storage (Arts. 1507-1520, NCC; RA
repay the same amount of
2137 or Warehouse Receipts Law)
the same kind and quality,
with or without interest.
NOTE: Bailment for hire (locatio et conductio) arises when goods are left
with the bailee for some use or service by him and is always for some
compensation. Illustration:
- If a bank gives you credit of P300,000, the bank
believes that you have, based on your money, assets,
etc. that that is the extent of their trust in your ability
I. LOAN to pay them back. It helps them determine how much
(Arts. 1933-1961, NCC) of a loan they would be willing to grant you.
- If the bank gives you a loan of P300,000, the bank will
loan you P300,000 and you may have to pay interest
as well.
A. NATURE OF A LOAN:
CREDIT DEBIT
DEFINITION OF A CONTRACT OF LOAN:
- By the contract of loan, one of the parties delivers Generally, it is a sum credited Sum due to any person as
to another, either something not consumable so on the books of a company to distinguished from that which
that the latter may use the same for a certain time a person who appears to be he owes. In other words, it is
entitled to it. the amount owed by the
and return it, in which case the contract is called a
debtor to the creditor.
commodatum; or money or other consumable
thing, upon the condition that the same amount of
the same kind and quality shall be paid, in which
case the contract is simply called a loan or LOAN DISCOUNTING PAPER
mutuum. (Art. 1933, NCC)
Interest is usually taken at the Interest is deducted in
expiration of a credit card advance (Sec. 5, Usury Law)
KINDS OF CONTRACT OF LOAN:
1. Commodatum: On a single-name paper (A Always on a double-name
- Where the bailor (lender) delivers to the promissory note with no paper (one in which 2
bailee (borrower) a non-consumable thing indorsement other than the signatures appear with both
so that the latter may use it for a certain signature of the maker.) parties liable for payment.)
time and return the identical thing.
- This is essentially gratuitous (Art. 1933,
Example:
NCC)
- On a loan of P1,000 at 10% interest, the borrower
- The bailor retains the ownerships of the would pay P1,100 at the end of the year. If the note
thing loaned. (Art. 1933, NCC) is discounted, the interest is deducted from the
principal in advance. The borrower would receive
2. Simple Loan or Mutuum: P900 but would pay back P1,000 at the end of the
- Where the lender delivers to the borrower year. The P100 is called the discount and P900 is
money or other consumable thing upon called the proceeds.
the condition that the latter shall pay the
same amount of the same kind and
COMMODATUM vs. MUTUUM (Simple Loan):
quality.
- This may be gratuitous or with a COMMODATUM MUTUUM
stipulation to pay interest. (Art. 1933,
NCC) Subject matter involves Subject matter is money or
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Morillo Notes
something not consumable. another consumable thing.
registered, there arises a perfected consensual
contract of loan. While a perfect contract of loan
Ownership of the thing loaned Ownership of the thing loaned can give rise to an action for damages, said
is retained by the lender. is transferred to the borrower. contract does not constitute the real contract of
loan. (Saura Import vs. DPB, 44 SCRA 445)
Essentially gratuitous May be gratuitous or it may be
onerous (with stipulation to 2. Mortgage executed by virtue of loan granted:
pay interest) - Where the mortgage deed was executed for and on
condition of the loan granted to the mortgagors,
Borrower must return the Borrower need to pay only the the fact that the latter did not collect from the
same thing loaned. same amount or the same
mortgagee bank the consideration of the mortgage
kind and quality.
on the date it was executed by 6 days later when
Real or personal property Personal property only
the mortgagors and their co-maker signed the
promissory note is immaterial. A contract of loan
A loan for use or temporary Loan for consumption being consensual, it was perfected when the
possession contract of mortgage was executed, the
promissory note being only an evidence of an
Bailor (Lender) may demand Lender may not demand its indebtedness and did not indicate lack of
the return of the thing loaned return before the lapse of the consideration of the mortgage at the time of its
before the expiration of the term agreed upon. execution. (Bonnevie vs. CA, 125 SCRA 122)
term in case of urgent need.
3. Only partial amount released under a loan agreement
The loss of the subject matter The borrower suffers the loss
secured by mortgage:
is suffered by the bailor even if caused exclusively by a
(lender) since he is the owner. fortuitous event and he is not - Where a bank and a borrower under took reciprocal
discharged from his duty to obligations by entering an P80,000 loan agreement
pay. on April 28, 1965 when the borrower executed a
real estate mortgage, but the bank released only
P17,000, the bank was held in default for P63,000
CHARACTERISTICS OF A CONTRACT OF LOAN: to the borrower. (See Central Bank vs. CA, 139
1. By the contract of loan, one of the parties delivers SCRA 46)
to another either: (1) a non-consumable thing; or (2)
money or other consumable thing, upon the
condition that the same amount of the same kind BPI INVESTMENT vs. CA
GR no. 133632, February 15, 2002
and quality shall be paid. (Art. 1933, NCC)
2. An accepted promise to deliver something by way
A loan contract is not a consensual contract but a real contract.
of commodatum or simple loan is binding upon the Petitioner misapplied Bonnevie case. The contract in the
parties, but the commodatum or simple loan itself Bonnevie case was declared by the Court as a perfected
shall not be perfected until the delivery of the consensual contract falls under the first clause of Art. 1934,
object of the contract. (Art. 1934, NCC) NCC. It is an accepted promise to deliver something by way of
simple loan.
DELIVERY IS ESSENTIAL TO PERFECT A LOAN
A perfected consensual contract can give rise to an action for
CONTRACT:
damages. However, said contract does not constitute the real
- Real contracts, such as deposit, pledge and
contract of loan which requires the delivery of the object of the
commodatum, are not perfected until the delivery contract for its perfection and which gives rise to obligations
of the object of the obligation. (Art. 1316, NCC) only on the part of the borrower.
BINDING EFFECT OF ACCEPTED PROMISE TO LEND: In the present case, the loan contract between BPI and ALS &
- An accepted promise to make a future loan is a Litonjua was perfected only on Sept. 13, 1982 which is the date
consensual contract and binding upon the parties of the second release of the loan. Following the intentions of the
parties on the commencement of the monthly amortization, ALS
but it is only after delivery, will the real contract of
& Litonjua obligation to pay commenced only on Oct. 13, 1982,
loan arise. (Art. 1934, NCC)
a month after the perfection of the contract.
- Contracts are perfected by mere consent, and from
that moment the parties are bound not only to the
fulfillment of what has been expressly stipulated
NAGUIAT vs. CA
but also to all the consequences which, according GR no. 118375, October 3, 2003
to their nature, may be in keeping with good faith,
usage and law. (Art. 1315, NCC) A loan contract is a real contract (not consensual) and, as such,
is perfected only upon the delivery of the object of the contract.
1. Application for loan approved by Corporation: In this case, the objects of the contract are the loan proceeds
- Where an application for a loan or money was which Queano would enjoy only upon the encashment of the
checks signed or indorsed by Naguit. If indeed the checks were
approved by Board Resolution (Lender Corp.) and
encashed or deposited, Naguiat would have certainly presented
the corresponding mortgage was executed and the corresponding documentary evidence, such as the returned
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Morillo Notes
checks and the pertinent bank records. sINCE naguiat presented
2. Object of the Contract:
no such proof, it follows that the checks were not encashed or - Gen. Rule: Commodatum covers things that are
credited to Queano’s account. not consumable. (Art. 1933, NCC).
- The thing loaned must be of such nature
that it can survive the use made of it.
B. COMMODATUM: - Commodatum is the obligation to return in
kind and its individuality the same thing
that was lined. (p. 18, De Leon, Credit
DEFINITION OF COMMODATUM: Transaction (2021))
- It is a loan whereby one of the parties delivers to - Exception: Consumable goods may be the subject
another something not consumable so that the of commodatum if the purpose of the contract is
latter may use the same for a certain time and not the consumption of the object, as when it is
return it. (Art. 1933, NCC) merely for exhibition. (Art. 1936, NCC)
- Ex: A lends to B an oversized bottle of
NATURE OF COMMODATUM: wine to be used as a sample or for
● It is a loan contract whereby one of the contracting advertisement. (See also Art. 1645, NCC)
parties delivers to another something not consumable - Movable or immovable property may be the object
so that the latter may use the same for a certain time of commodatum.
and return it. (art. 1933, NCC) - Ex: When a person allowed another to
● In commodatum, the bailee acquires the use of the build a warehouse on the former’s land so
thing loaned but not the fruits; if any compensation is that the latter may use the property for a
to be paid by him who acquires the use, the contract certain period with no payment of rental. If
ceases to be a commodatum. (Art. 1935, NCC) no time for use of the land is specified, the
● Consumable goods may be the subject of contract would be
commodatum if the purpose of the contract is not the commodatum-precarium under Art. 1947,
consumption of the object, as when it is merely for NCC. Otherwise, if rental is paid, it is a
exhibition. (Art. 1936, NCC) lease contract under Art. 1643, NCC.
● The bailor in commodatum need not be the owner of (Mina vs. Pascual vs. 25 Phil. 540)
the thing loaned. (Art. 1938, NCC); - As to the fruits, the rule is that the fruits of the thing
● A stipulation that the bailee may make use of the fruits loaned do not form part of the object of the
of the thing loaned is valid. (Art. 1940, NCC) contract unless otherwise agreed upon by the
parties. (Art. 1940, NCC)
CHARACTERISTICS OF COMMODATUM: - The bailee is entitled only to the use of the
1. Perfection - commodatum is a real contract thing loaned.
because the delivery of the thing loaned is
necessary for the perfection of the contract. (Art.
PRODUCER’S BANK’S OF THE PHILIPPINES vs. CA
1933, NCC)
GR no. 115324, February 19, 2003
2. Persons Obligated - it is a unilateral contract
because once the subject matter has been If the subject of the contract is a consumable thing,
delivered, it creates obligations on the part of only such as money, the contract would be a mutuum.
one of the parties. However, there are some instances where a
3. Nomenclature - it is a nominate contract because commodatum may have for its object a consumable
it has been given a specific name by the civil Code thing. Article 1936 of the Civil Code provides:
(Art. 1307, NCC) “Consumable goods may be the subject of
commodatum if the purpose of the contract is not the
4. Dependency on another contract - it is a principal
consumption of the object, as when it is merely for
contract because it is not an accessory contract. exhibition.” Thus, if consumable goods are loaned only
5. Form - It is an informal contract because no for purposes of exhibition, or when the intention of the
particular form is required for the contract; and parties is to lend consumable goods and to have the
6. Cause - It is a gratuitous contract as the bailee very same goods returned at the end of the period
does not pay the bailor for the use of the thing. agreed upon, the loan is a commodatum and not a
mutuum.
ELEMENTS OF COMMODATUM:
The rule is that the intention of the parties thereto shall
1. Consent of the Contracting Parties:
be accorded primordial consideration in determining
- Consent is manifested by the meeting of the offer the actual character of a contract. In case of doubt,
and acceptance upon the thing and the cause. (Art. the contemporaneous and subsequent acts of the
1319, NCC) parties shall be considered in such determination.
- Parties must have capacity to give consent. Hence,
minors, insane or demented persons cannot give As correctly pointed out by both the Court of Appeals
consent to commodatum. (Arts. 37-39; 46; and and the trial court, the evidence shows that private
1327, NCC) respondent agreed to deposit his money in the savings
account of Sterela specifically for the purpose of
making it appear "that said firm had sufficient
4 CREDIT TRANSACTIONS
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Morillo Notes
capitalization for incorporation, with the promise that
- If a contract involves immovable property,
the amount shall be returned within thirty (30) days. and the parties wish to create real rights
Private respondent merely "accommodated" Doronilla over immovable property, then the
by lending his money without consideration, as a favor agreement must be written and in a public
to his good friend Sanchez. It was however clear to the instrument. (Art. 1358, NCC)
parties to the transaction that the money would not be - Under the Statute of Frauds, a contract to
removed from Sterela’s savings account and would be loan is required to be written if, by its
returned to the private respondent after thirty (30)
terms, it will not be performed within 1
days.
year from the making thereof. (Art. 1403,
Doronilla’s attempts to return to private respondent the NCC)
amount of P200,000.00 which the latter deposited in
Sterela’s account together with an additional EXTINGUISHMENT OF COMMODATUM:
P12,000.00, allegedly representing interest on the 1. Expiration of the stipulated period or
mutuum, did not convert the transaction from a accomplishment of the use for which the thing was
commodatum into a mutuum because such was not given (Art. 1933, NCC)
the intent of the parties and because the additional
2. Return by the bailee of the thing after demand by
P12,000.00 corresponds to the fruits of the lending of
the bailor, if the bailor has urgent need of the thing.
the P200,000.00. Article 1935 of the Civil Code
expressly states that" the bailee in commodatum (Art. 1946, NCC)
acquires the use of the thing loaned but not its fruits." 3. Return of the thing, in case of a precarium or if the
Hence, it was only proper for Doronilla to remit to bailee commits any act of ingratitude. (Art.
private respondent the interest accruing to the latter’s 1947-1948, NCC)
money deposited with petitioner. 4. Loss of the thing; and
5. Death of the bailor or bailee (Art. 1939(1), NCC)
3. Cause of the Contract:
- The cause of a contract of commodatum is the PAJUYO vs. CA
mere liberality of the benefactor (bailor). (Art. 1350, GR no. 146364, June 3, 2004
NCC)
- The contract ceases to be Commodatum if any FACTS:
Pajuyo and private respondent Eddie Guevarra executed a
compensation is paid by the borrower who
Kasunduan or agreement. Pajuyo, as owner of the house,
acquires the use, hence it becomes a lease
allowed Guevarra to live in the house for free provided Guevarra
contract. (Arts. 1642-1644, NCC) would maintain the cleanliness and orderliness of the house.
- If the consideration is the rendering of some Guevarra promised that he would voluntarily vacate the premises
service (“to do”) an innominate contract will result. on Pajuyo’s demand. In September 1994, Pajuyo informed
(Art. 1307, NCC) Guevarra of his need of the house and demanded that Guevarra
vacate the house. Guevarra refused.
Illustration: A asked B if he might use his car for a trip to Baguio. If B RULING:
agreed and allowed A to get his car, asking nothing in return for the favor,
SC does not with the CA’s ’ theory that the Kasunduan is one of
the contract of commodatum is created solely to benefit A.
commodatum. In a contract of commodatum, one of the parties
delivers to another something not consumable so that the latter
PARTIES TO A COMMODATUM: may use the same for a certain time and return it. An essential
feature of commodatum is that it is gratuitous. Another feature of
- Bailor (Lender) and Bailee (Borrower) are the parties
commodatum is that the use of the thing belonging to another is
to the contract of commodatum.
for a certain period. Thus, the bailor cannot demand the return of
the thing loaned until after expiration of the period stipulated, or
BAILOR NEED NOT BE THE OWNER: after accomplishment of the use for which the commodatum is
- The bailor does not transfer ownership of the thing constituted. If the bailor should have urgent need of the thing, he
loaned, hence he does not need to be the owner of may demand its return for temporary use. If the use of the thing
the thing loaned. (Art. 1938, NCC) is merely tolerated by the bailor, he can demand the return of the
- It is sufficient that the bailor has the right to allow thing at will, in which case the contractual relation is called a
precarium. Under the Civil Code, precarium is a kind of
the use of the thing by the bailee. Hence, a
commodatum.
usufructuary or a lessee can enter into a contract of
commodatum. (p.19, De Leon, Credit Transaction The Kasunduan reveals that the accommodation accorded by
(2021)) Pajuyo to Guevarra was not essentially gratuitous. While the
- Note, A bailee is estopped from asserting title to Kasunduan did not require Guevarra to pay rent, it obligated him
the thing received, as against the bailor. (Art. 1436, to maintain the property in good condition. The imposition of this
NCC) obligation makes the Kasunduan a contract different from a
commodatum. The effects of the Kasunduan are also different
from that of a commodatum. Case law on ejectment has treated
FORM OF THE CONTRACT OF COMMODATUM:
relationship based on tolerance as one that is akin to a
- Gen. Rule: It is obligatory in whatever form
landlord-tenant relationship where the withdrawal of permission
provided all the essential requisites for their validity would result in the termination of the lease. The tenant’s
are present. (Art. 1356, NCC) withholding of the property would then be unlawful. This is
- Exceptions: settled jurisprudence.
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Morillo Notes
except when they are so urgent that the reply to the
Even assuming that the relationship between Pajuyo and notification cannot be awaited without danger.
Guevarra is one of commodatum, Guevarra as bailee would still If the extraordinary expenses arise on the occasion
have the duty to turn over possession of the property to Pajuyo, of the actual use of the thing by the bailee, even
the bailor. The obligation to deliver or to return the thing received though he acted without fault, they shall be borne
attaches to contracts for safekeeping, or contracts of equally by both the bailor and the bailee, unless
commission, administration and commodatum. These contracts there is a stipulation to the contrary. (Art. 1949,
certainly involve the obligation to deliver or return the thing
NCC)
received.
4. If, for the purpose of making use of the thing, the
bailee incurs expenses other than those referred to
COMMODATUM IS PURELY PERSONAL IN CHARACTER: in articles 1941 and 1949, he is not entitled to
reimbursement. (Art. 1950, NCC)
Article 1939. Commodatum is purely personal in character. Consequently:
1. The death of either the bailor or the bailee extinguishes the 5. The bailor cannot exempt himself from the payment
contract; of expenses or damages by abandoning the thing
2. The bailee can neither lend nor lease the object of the contract to the bailee. (Art. 1952, NCC)
to a third person. However, the members of the bailee's
household may make use of the thing loaned, unless there is a
stipulation to the contrary, or unless the nature of the thing LIABILITY FOR EXPENSES:
forbids such use. (NCC) 1. Ordinary Expenses:
- for the use of the thing bailee
- The death of either party (bailor or bailee) (borrower) bears the expense (Art. 1941,
terminates the contract unless by stipulation, the NCC)
- To preserve the thing Bailee (borrower)
commodatum is transmitted to the heirs of either or
both parties. Such stipulation is valid. (Art. 1306, bears the expense. (Art. 1941, 1949, NCC)
NCC) 2. Extraordinary Expenses:
- If there are 2 or more borrowers, the death of one - to preserve the thing bailor (lender)
does not extinguish the contract absent stipulation bears the expense. (Art. 1949, NCC)
to the contrary. - arising from the actual use of thing
- The bailee can neither lend nor lease the object of bailor and bailee bears the expense on a
commodatum to a third person. 50-50 share basis. (Art. 1949, NCC)
3. Other expenses for the use of the thing:
OBLIGATIONS OF THE BAILEE: - bailee (borrower) bears the expense. (Art.
1. Take good care of the thing with the diligence of a 1950, NCC)
good father of the family. (Art. 1163, NCC)
2. Use the thing loaned only for the purpose for which RETURN OF THE THING LOANED (EFFECTS): The bailee
it was loaned. (Arts. 1935, 1939, and 1940, NCC) has the obligation to return the thing borrowed because, as
- only for the purpose for which said thing a rule, the bailee cannot retain the ting. (Art. 1944, NCC)
was loaned and not for other purpose. 1. When Bailee did not return the thing loaned because
he MISAPPROPRIATED it - the bailee can be held
3. Pay ordinary expenses for the use and preservation
of the thing and a portion of extraordinary criminally liable. (See Art. 315, RPC, swindling or
expenses arising from the actual use of the thing. “estafa”)
(Arts. 1941, 1943, 1945, 1949, 1950, NCC) 2. When Bailee did not return the thing loaned because
4. Return and not retain the thing loaned. (Art. 1933, he wants to RETAIN THE THING loaned - the bailee
1944, 1946, NCC) commits breach of contract and becomes liable for;
(1) the loss of the thing even if the loss should be
through fortuitous event; as well as (2) for damages
Note: If the Bailee breaches any of the above obligations, the bailee can that may be suffered by the bailor because of failing
be held liable for damages (Art. 1170, NCC), and in case of items 2 and 4
above, it will make the bailee liable for the loss of the thing even if the loss to return the thing at the appropriate time. (Art. 1170,
is through a fortuitous event. (Art. 1942, NCC) NCC)
3. When Bailee did not return the thing because he
LOST THE THING without his fault - Bailee is not
liable, however if the thing loaned was delivered with
EXPENSES:
an appraisal of its value, then the bailee is liable even
CODAL PROVISIONS:
in case of fortuitous event unless there is stipulation
1. The bailee is obliged to pay for the ordinary
to the contrary. (Art. 1942, NCC)
expenses for the use and preservation of the thing
loaned. (Art. 1941, NCC)
LIABILITY FOR DETERIORATION OF THING LOANED:
2. The bailee does not answer for the deterioration of
1. Deterioration due to ordinary wear and tear -
the thing loaned due only to the use thereof and
Absent agreement to the contrary, the depreciation
without his fault. (Art. 1943, NCC)
caused by the reasonable and natural use of the
3. The bailor shall refund the extraordinary expenses
thing is borne by the bailor.
during the contract for the preservation of the thing
loaned, provided the bailee brings the same to the
knowledge of the bailor before incurring them,
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2. Deterioration due to bailee’s fault or negligence - 5. If, being able to save either the thing borrowed or
the bailee is liable (Art. 1170, NCC; Art. 1942(1), his own thing, he chose to save the latter. (Art.
NCC) 1942, NCC)
LIABILITY FOR EXTRAORDINARY EXPENSES:
1. Extraordinary expenses to preserve the thing TIME OF RETURN OF THE
loaned - these expenses shall be borne by the THING TO THE BAILOR:
bailor (eg. Expenses for repairing the borrowed
house which was damaged by a typhoon). CODAL PROVISIONS:
- If these expenses are incurred by the 1. The bailor cannot demand the return of the thing
bailee the bailor must refund them loaned till after the expiration of the period
provided the bailee brings the same to the stipulated, or after the accomplishment of the use
knowledge of the bailor before incurring for which the commodatum has been constituted.
them. (Art. 1949, par. 2, NCC) However, if in the meantime, he should have urgent
- Notice is required except in case of need of the thing, he may demand its return or
urgency that a reply cannot be awaited temporary use.
without danger. In case of temporary use by the bailor, the contract
2. Extraordinary expenses arising from the actual of commodatum is suspended while the thing is in
use of the thing loaned - Such expenses shall be the possession of the bailor. (Art. 1946, NCC)
borne by the bailor and bailee on a 50-50 basis. 2. PRECARIUM - The bailor may demand the thing at
(eg. Expenses for repairing a borrowed jeep will in the following cases:
damaged in a collision) a. If neither the duration of the contract nor
- However, the parties may (by stipulation) the use to which the thing loaned should
provide for a different apportionment of be devoted, has been stipulated; or
such expenses, or that they shall be borne b. If the use of the thing is merely tolerated
by the bailee or bailor only. by the owner. (Art. 1947, NCC)
3. The bailor may demand the immediate return of the
NO OBLIGATION TO ASSUME ALL OTHER EXPENSES: thing if the bailee commits any act of ingratitude
- All expenses other than those referred to in Arts. specified in article 765. (Art. 1948, NCC)
1941 and 1949, NCC (Ordinary and extraordinary 4. The donation may also be revoked at the instance
expenses) “for the purpose of making use of the of the donor, by reason of ingratitude in the
thing loaned” (eg. The borrower buys extra tire to following cases:
be a reserve on a trip) must be borned or a. If the donee should commit some offense
shouldered by the borrower/bailee because these against the person, the honor or the
are unnecessary expenses for the preservation of property of the donor, or of his wife or
the thing. (Art. 1950, NCC) children under his parental authority;
b. If the donee imputes to the donor any
criminal offense, or any act involving moral
BAILEE’S LIABILITY FOR THE LOSS DUE TO turpitude, even though he should prove it,
FORTUITOUS EVENT: unless the crime or the act has been
committed against the donee himself, his
GENERAL RULE: The bailor (lender) bears the risk of loss wife or children under his authority;
of, or damage due to, the thing borrowed as a result of a c. If he unduly refuses him support when the
fortuitous event (Art. 1174, NCC) because the bailor retains donee is legally or morally bound to give
the ownership of the thing loaned. support to the donor. (Art. 765, NCC)
EXCEPTION: The bailee (borrower) is liable for the loss of OBLIGATION TO RESPECT THE DURATION OF THE
the thing, even if it should be through a fortuitous event, LOAN:
instances: - Gen. Rule: The bailor must allow the bailee to use
1. If he devotes the thing to any purpose different the thing loaned during the period stipulated or
from that for which it has been loaned; until the accomplishment of the purpose for which
2. If he keeps it longer than the period stipulated, or the commodatum was constituted because the
after the accomplishment of the use for which the bailor is bound by the terms of the contract of
commodatum has been constituted; commodatum. (Art. 1946, 1933, 1935, NCC)
3. If the thing loaned has been delivered with - Exception: If the bailor should have an urgent need
appraisal of its value, unless there is a stipulation of the thing loaned (eg. Bailor needs the car loaned
exempting the bailee from responsibility in case of by him to bring a sick member of his household to
a fortuitous event; a hospital); or if the bailee commits an act of
4. If he lends or leases the thing to a third person, ingratitude (See Art. 1948, NCC) the bailor may
who is not a member of his household; demand its return or temporary use. (Art. 1946,
NCC)
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Morillo Notes
- The return may be for temporary use or
permanent. If temporary use of the thing
by the bailor occurs the rights and LIABILITY OF TWO OR MORE BAILEES:
duties of the parties are temporarily
suspended. (Art. 1946, par. 2, NCC)
Article 1945. When there are two or more bailees to whom a
thing is loaned in the same contract, they are liable solidarily.
DEFINITION OF PRECARIUM: (NCC)
- Precarium is a commodatum where the bailor may
demand the thing at will. (See Art. 1947, NCC) - This provision is an exception to the general rule
- It is a contract by which the owner of a thing, at the under Arts. 1207-1208, NCC) that the concurrence
request of another person, gives the latter the thing of 2 or more parties in the same obligation gives
for use as long as the owner shall please. (Pajuyo rise only to a joint obligation.
vs. CA, 430 SCRA 492)
Rationale: To safeguard the rights of the lender.
CASES WHEN CONTRACT OF COMMODATUM IS A
PRECARIUM:
1. if neither the duration of the contract nor the use to BAILEE’S RIGHT TO RETAIN THE THING:
which the thing loaned should be devoted, has CODAL PROVISIONS:
been stipulated; or 1. The bailee cannot retain the thing loaned on the
2. If the use of the thing is merely tolerated by the ground that the bailor owes him something, even
owner. (Art. 1947, NCC) though it may be by reason of expenses. However,
the bailee has a right of retention for damages
Note: The word “owner” above is inaccurate because mentioned in article 1951. (Art. 1944, NCC)
under Art. 1938, NCC, the bailor need not be the owner
2. The bailor who, knowing the flaws of the thing
of the thing loaned.
loaned, does not advise the bailee of the same,
shall be liable to the latter for the damages which
ACTS OF INGRATITUDE (Art. 765, NCC): he may suffer by reason thereof. (Art. 1951, NCC)
1. Bailee commit offenses against the person, honor
or the property of the bailor, or of his wife or RETENTION OF THE THING LOANED:
children under his(bailor) parental authority; - General Rule: The bailee has no right to retain the
2. Bailee imputes to the bailor any criminal offense, or thing loaned as security for claims he has against
any act involving moral turpitude, even though he the lender, even though they may be from
should prove it, unless the crime or the act has extraordinary expenses. (Art. 1944, NCC)
been committed against the bailee himself, his wife - The ownership remains in the bailor
or children under his authority; and because the bailee acquires only the use
3. Bailee unduly refuses the bailor support when the of the thing.
bailee is legally or morally bound to give support to - Only temporary use is given to the bailee.
the bailor. (Art. 1287, NCC)
- Exception: Claim for damages suffered because of
the flaws of the thing loaned. (Art. 1951, NCC)
Note: In the above cases, The bailor may demand the immediate
return of the thing loaned from the bailee. (Art. 1948, NCC)
EFFECT OF RETENTION OR ADVERSE CLAIM BY THE
BAILEE:
CATHOLIC VICAR APOSTOLIC OF MT. PROVINCE vs. CA - Mere failure of the bailee to return the subject
GR no. 80294-95, September 21, 1988 matter of commodatum to the bailor does not
constitute adverse possession by the bailee who
Private respondents were able to prove that their predecessors' holds the same in trust.
house was borrowed by petitioner Vicar after the church and the
convent were destroyed. They never asked for the return of the
house, but when they allowed its free use, they became bailors CATHOLIC VICAR APOSTOLIC
in commodatum and the petitioner the bailee. The bailees' failure OF MT. PROVINCE vs. CA
to return the subject matter of commodatum to the bailor did not 165 SCRA 515
mean adverse possession on the part of the borrower. The bailee
held in trust the property subject matter of commodatum. The The bailee declared subject lots in its name for taxation
adverse claim of petitioner came only in 1951 when it declared purposes. SC held that said action of the bailee by such adverse
the lots for taxation purposes. The action of petitioner Vicar by claims could not ripen into a Title by way of ordinary acquisitive
such adverse claim could not ripen into title by way of ordinary prescription because of the absence of just title.
acquisitive prescription because of the absence of just title.
The Court of Appeals found that the predecessors-in-interest RIGHT OF RETENTION FOR DAMAGES:
and private respondents were possessors under claim of - The exception under Art. 1951, NCC is of evident
ownership in good faith from 1906; that petitioner Vicar was only justice, however, the bailee’s right extends no
a bailee in commodatum; and that the adverse claim and further than to the retention of the thing loaned until
repudiation of trust came only in 1951. he is reimbursed for the damages suffered by him.
8 CREDIT TRANSACTIONS
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Morillo Notes
He cannot lawfully sell the thing to satisfy the said upon the security of, any obligation of claim arising out of any of the
damages. foregoing; and any transaction or series of transactions having a similar
purpose or effect.
REQUISITES FOR ART. 1951, NCC (WHERE RETENTION
"Finance charge" includes interest, fees, service charges, discounts, and
OF THE THING LOANED IS ALLOWED): such other charges incident to the extension of credit as the Board may be
1. There is a flaw or defect in the thing loaned; regulation prescribe.
2. The flaw or defect is hidden;
"Creditor" means any person engaged in the business of extending credit
3. The bailor is aware thereof; (including any person who as a regular business practice make loans or
4. He does not advise the bailee of the same; and sells or rents property or services on a time, credit, or installment basis,
5. The bailee suffers damages by reason of said flaw either as principal or as agent) who requires as an incident to the extension
or defect. of credit, the payment of a finance charge.
"Person" means any individual, corporation, partnership, association, or
other organized group of persons, or the legal successor or representative
Illustration:
of the foregoing, and includes the Philippine Government or any agency
If A lends to B his car without informing the latter that thereof, or any other government, or of any of its political subdivisions, or
its brake is not working properly, A will be liable if B is injured by any agency of the foregoing.
reason thereof. The liability imposed by law is a just sanction for
the bad faith committed by A. He has the obligation to warn the
latter of any defects in the car not known to and might cause ESSENTIAL REQUISITES OF THE CONTRACT OF
injury to B or interfere with the use of the car. SIMPLE LOAN OR MUTUUM:
1. Consent - manifested by the meeting of the offer and
If the defect is patent or could have been known to B acceptance upon the thing and the cause which are to
after casual inspection or A was not aware of the defect, A is not
constitute the contract. (Art. 1319, NCC)
liable. (Art. 1944, NCC)
- Consent must be given by parties with
In the first case, it is presumed that B will adopt the capacity to give consent. Minors and
precautions or will take the risk incident to using the car. In the insane or demented persons cannot give
second case, A is liable for b’s injury. consent to a contract of mutuum. (Art.
1327, NCC)
2. Object - refers to the money or any other consumable
WHERE FLAW IS UNKNOWN TO THE BAILOR:
thing (Art. 1933, NCC). It may also cover fungible
- If the defect is not known to the bailor, he is not
things. (Art. 1953, NCC)
liable. (commodatum is essentially gratuitous)
- If the object is a non-fungible thing and
- NOTE: this is different in sale and lease because in
the borrower has the obligation to give
these contracts, valuable consideration is received
things of the same kind, quantity, and
by the vendor and the lessor. (See Arts. 1547, quality, the contract is a Barter. (Art. 1954,
1653, 1458, and 1643, NCC)
NCC)
3. Cause - generally, mutuum is gratuitous (Art. 1933,
C. MUTUUM: NCC), the cause is the mere liberality of the benefactor.
(Art. 1350 NCC)
- There is no obligation to pay interest
DEFINITION OF MUTUUM: unless expressly stipulated in writing. (Art.
- It is a contract whereby one party delivers money 1956, NCC)
or other consumable thing to another who acquires
ownership thereof with the understanding or on
PARTIES TO A CONTRACT OF SIMPLE LOAN OR
condition that the borrower shall pay the same MUTUUM:
amount of the same kind and quality. (Art. 1933, - The borrower and the creditor are the parties to the
NCC) contract of mutuum.
- A person who receives a loan of money or any - The creditor must be the owner of the thing loaned
other fungible thing acquires the ownership thereof,
because he transfers the ownership of the thing
and is bound to pay to the creditor an equal loaned. (Art. 1933, 1953, NCC)
amount of the same kind and quality. (Art. 1953,
NCC) TRANSFER OF OWNERSHIP:
- In Mutuum, the borrower acquires ownership of the
RA 3765 (Truth in Lending Act): thing loaned. (Arts. 1933, 1953, NCC).
- The borrower becomes the owner from the moment
"Board" means the Monetary Board of the Central Bank of the
Philippines.
he receives the thing because of delivery and the
nature of the contract (not because the money or
"Credit" means any loan, mortgage, deed of trust, advance, or discount; fungible thing loses its identity).)
any conditional sales contract; any contract to sell, or sale or contract of
sale of property or services, either for present or future delivery, under
which part or all of the price is payable subsequent to the making of such
sale or contract; any rental-purchase contract; any contract or
arrangement for the hire, bailment, or leasing of property; any option,
demand, lien, pledge, or other claim against, or for the delivery of,
property or money; any purchase, or other acquisition of, or any credit
CREDIT TRANSACTIONS 9
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Morillo Notes
BPI FAMILY BANK vs. FRANCO
4. Principal Contract - its existence is not dependent on
GR no. 123498, November 23, 2007 another contract;
5. Informal Contract - No particular form is generally
FACTS: required for the contract of Simple Loan or Mutuum;
Franco opened three accounts, namely, a current,4 savings,5 - However, if the amount involved exceeds
and time deposit,6 with BPI-FB. The current and savings P500, it must appear in writing, even a
accounts were respectively funded with an initial deposit of private one (Art. 1358, NCC) This
P500,000.00 each, while the time deposit account had
requirement is only for the convenience of
P1,000,000.00 with a maturity date of August 31, 1990. The total
the parties and will not affect the validity
amount of P2,000,000.00 used to open these accounts is
traceable to a check issued by Te-vesteco allegedly in of the contract. (Tan vs, Villapaz, 475
consideration of Franco’s introduction of Eladio Teves, who was SCRA 720)
looking for a conduit bank to facilitate Tevesteco’s business 6. It may be Gratuitous Contract, if there is no stipulation
transactions, to Jaime Sebastian, who was then BPI-FB SFDM’s to pay interest; or Onerous Contract, if there is a
Branch Manager. In turn, the funding for the P2,000,000.00 stipulation to pay interest. (Art. 1933, NCC)
check was part of the P80,000,000.00 debited by BPI-FB from
FMIC’s time deposit account and credited to Tevesteco’s current
OBLIGATIONS OF THE BORROWER:
account pursuant to an Authority to Debit purportedly signed by
1. Pay the lender an equal amount of the same kind
FMIC’s officers. It appears that the signatures of FMIC’s officers
on the Authority to Debit were forged. Unfortunately, Tevesteco and in quality (Art. 1953, NCC);
had already effected several withdrawals from its current 2. Pay interest if expressly stipulated in writing. (Art.
account (to which had been credited the P80,000,000.00 1956, NCC)
covered by the forged Authority to Debit) amounting to
P37,455,410.54, including the P2,000,000.00 paid to Franco.
Article 1955. The obligation of a person who borrows money
On September 8, 1989, impelled by the need to protect its shall be governed by the provisions of articles 1249 and 1250 of
interests in light of FMIC’s forgery claim, BPI-FB instructed Jesus this Code.
Arangorin to debit Franco’s savings and current accounts for the
amounts remaining therein. In the meantime, two checks drawn If what was loaned is a fungible thing other than money, the
by Franco against his BPI-FB current account were dishonored debtor owes another thing of the same kind, quantity and quality,
upon presentment for payment, and stamped with a notation even if it should change in value. In case it is impossible to
“account under garnishment.” BPI-FB urges the court that the deliver the same kind, its value at the time of the perfection of the
legal consequence of FMIC’s forgery claim is that the money loan shall be paid. (NCC)
transferred by BPI-FB to Tevesteco is its own, and considering
that it was able to recover possession of the same when the
FORMS OF PAYMENT:
money was redeposited by Franco, it had the right to set up its
ownership thereon and freeze Franco’s accounts. 1. If the thing loaned is Money - payment should be
made in the currency stipulated (Art. 1249, NCC)
RULING: a. If the agreement is silent on the currency -
There is no doubt that BPI-FB owns the deposited monies in the the payment must be made in the
accounts of Franco, but not as a legal consequence of its currency in which the money was
unauthorized transfer of FMIC’s deposits to Tevesteco’s account. delivered (Art. 1933, NCC) = The Borrower
BPI-FB conveniently forgets that the deposit of money in banks must pay “the same amount of the same
is governed by the Civil Code provisions on simple loan or
kind and quality”.
mutuum. As there is a debtor-creditor relationship between a
bank and its depositor, BPI-FB ultimately acquired ownership of b. If it is impossible to deliver in the relevant
Franco’s deposits, but such ownership is coupled with a currency - The payment must be made in
corresponding obligation to pay him an equal amount on the currency which is legal tender in the
demand. Although BPI-FB owns the deposits in Franco’s philippines (Arts. 1249, 1955, NCC)
accounts, it cannot prevent him from demanding payment of - All notes and coins issued by
BPI-FB’s obligation by drawing checks against his current BSP are legal tender in the
account, or asking for the release of the funds in his savings Philippines for all debts (public or
account. Thus, when Franco issued checks drawn against his
private)
current account, he had every right as creditor to expect that
those checks would be honored by BPI-FB as debtor. - Check is not a legal tender unless
it was encashed. (Art. 1249,
NCC)
CHARACTERISTICS OF THE CONTRACT OF SIMPLE c. In case of Extraordinary Inflation or
LOAN OR MUTUUM: Deflation - the basis of payment shall be
1. Real Contract - The delivery of the thing loaned is the value of the currency at the time of the
necessary for the perfection of the contract of simple creation of the obligation. (Art. 1250, NCC)
loan or mutuum. (Art. 1933, 1316, NCC) - Requisites for extraordinary
2. Unilateral Contract - Once the subject matter has been inflation (or deflation) to affect an
delivered, it creates obligations on the part of only one obligation:
party (the borrower). 1. An official declaration of
3. Nominate Contract - It has given a specific name by the extraordinary inflation or
Civil Code. (Art. 1307, NCC) deflation from BSP;
2. Obligation was contractual;
10 CREDIT TRANSACTIONS
CREDIT TRANSACTIONS
Morillo Notes
3. Parties expressly agreed to can dispose of the thing borrowed and his act will
consider the effects of the not be considered misappropriation thereof.
extraordinary inflation or - No estafa is committed by a person who refuses to
deflation. (Equitable PCI vs. pay his debt or denies its existence.
Ng Sheung Ngor, 541 SCRA
223)
GUINGONA vs. CITY FISCAL OF MANILA
2. If the thing loaned if a Fungible Thing - the GR no. L-60033, April 4, 1984
borrower is obliged t pay the lender another thing
of the same kind, quality, and quantity. If it is It must be pointed out that when private respondent David
impossible to do, the borrower shall pay its value at invested his money on nine. and savings deposits with the
the time of the perfection of the loan. aforesaid bank, the contract that was perfected was a contract
of simple loan or mutuum and not a contract of deposit. Thus,
Fungible Thing - those usually dealt with by number, Article 1980 of the New Civil Code provides that “Fixed, savings,
and current deposits of-money in banks and similar institutions
weight, or measure (such as rice, oil, sugar, etc.) so that any
shall be governed by the provisions concerning simple loan.”
given unit or portion is treated as the equivalent of any other Bank deposits are in the nature of irregular deposits. They are
unit or portion. really 'loans because they earn interest. All kinds of bank
deposits, whether fixed, savings, or current are to be treated as
Can the creditor demand payment or can the borrower loans and are to be covered by the law on loans (Art. 1980 Civil
make payment before the maturity date? Code Gullas vs. Phil. National Bank, 62 Phil. 519). Current and
- Gen. Rule: If the loan is gratuitous, the borrower saving deposits, are loans to a bank because it can use the
may pay before maturity date because, generally, same. The petitioner here in making time deposits that earn
interests will respondent Overseas Bank of Manila was in reality
the creditor suffers no prejudice with the return of
a creditor of the respondent Bank and not a depositor. The
the money before the maturity date. respondent Bank was in turn a debtor of petitioner. Failure of the
- Exception: If the loan is with interest, the period is respondent Bank to honor the time deposit is failure to pay its
established to benefit both the creditor and the obligation as a debtor and not a breach of trust arising from a
borrower, hence, as a consequence, the creditor depositary's failure to return the subject matter of the deposit.
cannot demand payment and the borrower cannot
pay before the maturity date *unless agreed by the Hence, the relationship between the private respondent and the
parties) Nation Savings and Loan Association is that of creditor and
debtor; consequently, the ownership of the amount deposited
was transmitted to the Bank upon the perfection of the contract
PLACE OF PAYMENT: and it can make use of the amount deposited for its banking
1. If the parties agreed on the place of payment - the operations, such as to pay interests on deposits and to pay
payment must be made in the place stipulated. withdrawals. While the Bank has the obligation to return the
2. If no place of payment was stipulated - the place of amount deposited, it has, however, no obligation to return or
payment shall be the domicile of the debtor. (Art. deliver the same money that was deposited. And, the failure of
1251, par. 1, NCC) the Bank to return the amount deposited will not constitute
estafa through misappropriation punishable under Article 315,
par. l(b) of the Revised Penal Code, but it will only give rise to
EXTINGUISHMENT OF CONTRACT OF MUTUUM
civil liability over which the public respondents have no-
(SIMPLE LOAN): jurisdiction.
- Mutuum terminates by reason of (1) confusion; (2) if
the debtor succeeds the creditor in the thing
loaned (merger); (3) condonation of the debt; (4) by LIWANAG vs. CA
compensation; and (5) Novation. GR no. 114398, October 24, 1997
- Loss of the thing will not extinguish the obligation
unless otherwise provided on the contract. FACTS:
- Debtor must deliver a generic thing and Carmen Liwanag and a certain Thelma Tabligan went to the
genus non periit. house of complainant Isidora Rosales and asked her to join them
in the business of buying and selling cigarettes. Convinced of the
feasibility of the venture, Rosales readily agreed. Under their
RISK OF LOSS AND DETERIORATION: agreement, Rosales would give the money needed to buy the
- In a mutuum, risk problems do not arise because cigarettes while Liwanag and Tabligan would act as her agents,
both ownership and possession pass on to the with a corresponding 40% commission to her if the goods are
borrower and the contractual obligations do not sold; otherwise the money would be returned to Rosales.
come into existence without the delivery taking Consequently, Rosales gave several cash advances to Liwanag
place. If the borrower loses the money or the and Tabligan amounting to P633,650.00.
goods, this does not affect his obligation to repay
During the first two months, Liwanag and Tabligan made periodic
the creditor.
visits to Rosales to report on the progress of the transactions.
The visits, however, suddenly stopped, and all efforts by Rosales
NO CRIMINAL LIABILITY FOR FAILURE TO PAY IN to obtain information regarding their business proved
SIMPLE LOAN: futile.Alarmed by this development and believing that the
- In simple loan (or mutuum), the borrower acquires amounts she advanced were being misappropriated, Rosales
ownership of the money, goods, or personal filed a case of estafa against Liwanag.
property borrowed. being the owner, the borrower
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Morillo Notes
ISSUE: discharged from his duty to
W/N parties entered into a partnership agreement pay.
RULING:
NO, Estafa is a crime committed by a person who defrauds DIFFERENCE BETWEEN MUTUUM, COMMODATUM
another causing him to suffer damages, by means of AND BARTER:
unfaithfulness or abuse of confidence, or of false pretenses of
MUTUUM: COMMODATUM: BARTER:
fraudulent acts. The elements of estafa are present, as follows:
(1) that the accused defrauded another by abuse of confidence
Subject matter is Bailee is bound to Subject matter is a
or deceit; and (2) that damage or prejudice capable of pecuniary
money or any return the identical non-fungible
estimation is caused to the offended party or third party, and it is other fungible thing borrowed when (non-consumable) thing.
essential that there be a fiduciary relation between them either in things. the time has expired or
the form of a trust, commission or administration. the purpose of it has One party gives the
been served. equivalent thing in return
The receipt signed by Liwanag indicates that the money for what he has received
delivered to Liwanag was for a specific purpose, that is, for the from the other party.
purchase of cigarettes, and in the event the cigarettes cannot be
sold, the money must be returned to Rosales. Thus, even
COMMON LOAN TERMINOLOGIES:
assuming that a contract of partnership was indeed entered into
by and between the parties, we have ruled that when money or 1. Principal - the amount of loan.
property have been received by a partner for a specific purpose 2. Maturity Date - the date on which the amounts due
(such as that obtaining in the instant case) and he later under the loan agreement must be fully paid.
misappropriated it, such partner is guilty of estafa. Neither can 3. Bullet Payment (Balloon Payment) - when the
the transaction be considered a loan, since in a contract of loan principal is due and payable on the maturity date.
once the money is received by the debtor, ownership over the a. Loan is Amortizing - If portions of the principal
same is transferred. Being the owner, the borrower can dispose
are payable over the life of the loan.
of it for whatever purpose he may deem proper.
b. Amortization - the partial payment of the
In the instant petition, however, it is evident that Liwanag could principal.
not dispose of the money as she pleased because it was only 4. Fixed Interest Rate - the interest rate that does not
delivered to her for a single purpose, namely, for the purchase of change during the term of the loan.
cigarettes, and if this was not possible then to return the money 5. Floating interest Rate - the interest rate that changes
to Rosales. Since in this case there was no transfer of ownership based on market rates.
of the money delivered, Liwanag is liable for conversion under 6. Interest Payment Dates - refers to the dates on which
Art. 315, par. l(b) of the Revised Penal Code.
the interest is due and payable.
7. Covenant - refers to the obligation of the borrower to or
COMMODATUM vs. MUTUUM (Simple Loan): not to do something.
a. Affirmative Covenant - an obligation of the
COMMODATUM MUTUUM borrower to do something.
b. Negative Covenant - an obligation of the
Subject matter involves Subject matter is money or
borrower not to do something.
something not consumable. another consumable thing.
8. Right to Prepayment refers to the right given to the
Ownership of the thing loaned Ownership of the thing loaned borrower in a Voluntary Prepayment Clause to prepay
is retained by the lender. is transferred to the borrower. the loan (usually on specified days). On the other hand,
a Mandatory Prepayment Clause gives the lender the
Essentially gratuitous May be gratuitous or it may be right to require prepayment of the loan upon occurrence
onerous (with stipulation to of certain events.
pay interest) 9. Breakage Costs - refers to the costs incurred by the
lender because of the borrower’s failure to prepay under
Borrower must return the Borrower need to pay only the the conditions agreed upon.
same thing loaned. same amount of the same 10. Prepayment Premium - refers to the fee collected by
kind and quality.
the lender from the borrower for prepaying the loan.
Real or personal property Personal property only
11. Grace Period (Cure Period) - refers to the time given
to the borrower to remedy a default under the loan
A loan for use or temporary Loan for consumption agreement.
possession 12. Default - refers to a breach by the borrower of the loan
agreement.
Bailor may demand the return Lender may not demand its - If no cure period was given for that default, a
of the thing loaned before the return before the lapse of the default is also an Event of Default.
expiration of the term in case term agreed upon. - If a cure period was given and the borrower
of urgent need. could not cure or remedy the breach of
contract, the default becomes an Event of
The loss of the subject matter The borrower suffers the loss Default.
is suffered by the bailor since even if caused exclusively by a
he is the owner. fortuitous event and he is not
12 CREDIT TRANSACTIONS
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13. Acceleration Clause - gives the lender the right to RULING:
declare the loan immediately due and payable upon the NO, Both courts (rtc and CA) faultily concluded that the principal
event of default. sum loaned by petitioner and her deceased parents amounted to
- Because of the event of default, the lender can ₱2,000,000.00 and the ₱100,000.00 was added as interest
demand the repayment of the principal, because petitioner undertook to pay the loan in installments.
interests and other amounts due under loan
even before the maturity date of the loan. It is fundamental that for monetary interest to be due, there must
be an express written agreement therefor. Article 1956 of the
Civil Code provides that "[n]o interest shall be due unless it
INTEREST: bas been expressly stipulated in writing." In this relation, case
law states that the lack of a written stipulation to pay interest on
the loaned amount bars a creditor from charging monetary
interest and the collection of interest without any stipulation
Article 1956. No interest shall be due unless it has been
therefor in writing is prohibited by law.
expressly stipulated in writing. (NCC)
Here, respondent herself admitted that there was no written
agreement that interest would be due on the sum loaned, only
Article 1958. In the determination of the interest, if it is payable that there was an implicit understanding that the same would be
in kind, its value shall be appraised at the current price of the subject to interest since she also borrowed the same from banks
products or goods at the time and place of payment. (NCC) which, as a matter of course, charged interest. Respondent also
testified on cross examination that the ₱2,100,000.00
corresponds only to the principal and does not include interest.
INTEREST IS NOT LIMITED IN MONEY:
- Under Art. 1958 (NCC), if the interest is payable in All told, having established that no novation took place and that
kind, its value shall be appraised at the current no interest was actually due, and factoring in the payments
price of the products or goods at the time and already made for her account, petitioner is, thus, ordered to pay
place of payment. respondent the amount of ₱l,010,049.00, which is the remaining
- Purpose of Art. 1958 (NCC): To make usury harder balance of her principal debt to the latter in the original amount
to perpetrate. (Briones v. Cammayo, 41 SCRA 404) of ₱l,400,000.00.
Example: B borrowed P10,000 from L payable in palay in 1 year PEN vs. JULIAN
which shall be appraised at the current market price at the time GR no. 160408, January 11, 2016
and place of payment. When the contract was entered into, the
price per cavan of palay was P1,000. On the due date of the FACTS:
loan, the price increased to P1,500. The CA pronounced the deed of sale as void but not because of
the supposed lack of consideration as the RTC had indicated,
in this case, the value of the palay shall be appraised at P1,500 but because of the deed of sale having been executed at the
per cavan same time as the real estate mortgage, which rendered the sale
as a prohibited pactum commissorium in light of the fact that the
deed of sale was blank as to the consideration and the date,
KINDS OF INTEREST which details would be filled out upon the default by the
1. Monetary Interest - compensation for the use of respondents; that the promissory notes contained no stipulation
money (Art. 1956, NCC) on the payment of interest on the obligation, for which reason no
2. Compensatory Interest - imposed by law or by courts monetary interest could be imposed for the use of money; and
as penalty or indemnity for damages, or for breach of that compensatory interest should instead be imposed as a form
contractual obligations. (See Arts. 2209, 2212, NCC) of damages arising from Linda's failure to pay the outstanding
obligation.
ODIAMAR vs. VALENCIA RULING:
GR no. 213583, September 12, 2018 Anent interest, the CA deleted the imposition of monetary
interest but decreed compensatory interest of 12% per annum.
FACTS:
Respondent alleged that the petitioner owed her P2,100,000.00, Interest that is the compensation fixed by the parties for the use
including the petitioner’s parents debt amounting to or forbearance of money is referred to as monetary interest. On
P700,000.00. Petitioner purportedly issued a check which was the other hand, interest that may be imposed by law or by the
later dishonored upon presentment to the bank. Thus, the courts as penalty or indemnity for damages is called
respondent filed a complaint for collection of sum of money. compensatory interest. In other words, the right to recover
Petitioner alleged that it was her deceased parents who owed interest arises only either by vi11ue of a contract or as damages
respondent the money, and that respondent’s claim should be for delay or failure to pay the principal loan on which the interest
filed in the proceedings for the settlement of the deceased’s is demanded.
estates. She asserted that the respondent merely persuaded her
to issue a check to guarantee her deceased parents’ loan. The The CA correctly deleted the monetary interest from the
RTC and CA held the petitioner liable for the entire debt. judgment. Pursuant to Article 1956 of the Civil Code, no interest
shall be due unless it has been expressly stipulated in writing. In
ISSUE: order for monetary interest to be imposed, therefore, two
W/N the ₱100,000.00 of the ₱2,100,000.00 debt was in the requirements must be present, specifically: (a) that there has
nature of accrued monetary interests. been an express stipulation for the payment of interest; and (b)
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that the agreement for the payment of interest has been reduced
2. The agreement to pay interest must be in writing;
in writing. Considering that the promissory notes contained no - The collection of interest with no stipulation
stipulation on the payment of monetary interest, monetary reduced in writing is prohibited by law (Tan vs.
interest cannot be validly imposed. Valdehueza, 66 SCRA 61)
- Unilateral impositions of interest do not suffice as
The CA properly imposed compensatory interest to offset the proof of an agreement to pay interest. (Phil.
delay in the respondents' performance of their obligation. Phosphate Fertilizer vs. Kamalig, 540 SCRA 139)
Nonetheless, the imposition of the legal rate of interest should be
- the requirement that the payment of interest must
modified to conform to the prevailing jurisprudence. The rate of
be expressly stipulated in writing applies to
12% per annum imposed by the CA was the rate set in
accordance with Eastern Shipping Lines, Inc., v. Court of monetary interest, not to compensatory interest.
Appeals. In the meanwhile, Bangko Sentral ng Pilipinas Monetary 3. The interest must be lawful.
Board Resolution No. 796 dated May 16, 2013, amending
Section 2 of Circular No. 905, Series of 1982, and Circular No.
EUSEBIO-CALDERON vs. PEOPLE
799, Series of 2013, has lowered to 6% per annum the legal rate
GR no. 158495, October 21, 2004
of interest for a loan or forbearance of money, goods or credit
starting July 1, 2013. This revision is expressly recognized in
The civil liability of petitioner includes only the principal amount
Nacar v. Gallery Frames. It should be noted, however, that
of the loan. With respect to the interest checks she issued, the
imposition of the legal rate of interest at 6% per annum is
same are void. There was no written proof of the payable interest
prospective in application.
except for the verbal agreement that the loan shall earn 5%
interest per month. Under Article 1956 of the Civil Code, an
Accordingly, the legal rate of interest on the outstanding
agreement as to payment of interest must be in writing,
obligation of P43,492.15 as of June 28, 1990, as the CA found,
otherwise it cannot be valid. Consequently, no interest is due
should be as follows: (a) from the time of demand on October 13,
and the interest checks she issued should be eliminated from the
1994 until June 30, 2013, the legal rate of interest was 12% per
computation of her civil liability.
annum conformably with Eastern Shipping lines; and (b)
following Nacar, from July 1, 2013 until full payment, the legal
However, while there can be no stipulated interest, there can be
interest is 6% per annum.
legal interest pursuant to Article 2209 of the Civil Code. It is
elementary that in the absence of a stipulation as to interest, the
OTHER KINDS OF INTEREST: loan due will now earn interest at the legal rate of 12% per
annum. In the case of Eastern Shipping Lines, Inc. v. Court of
1. Simple Interest:
Appeals, we established the guidelines particularly for the award
- Interest that is paid for the principal at a certain of interest in the concept of actual and compensatory damages,
rate fixed or stipulated by the parties. the rate of interest, as well as the accrual thereof as
2. Compound Interest: follows:”When the obligation is breached, and it consists in the
- Interest that is imposed on the interest due and payment of a sum of money, i.e., a loan or forbearance of money,
unpaid. the interest due should be that which may have been stipulated
- The accrued interest is added to the principal sum in writing. Furthermore, the interest due shall itself earn legal
and the whole (principal + accrued interest) is interest from the time it is judicially demanded. In the absence of
stipulation, the rate of interest shall be 12% per annum to be
treated as a new principal upon which the interest
computed from default, i.e., from judicial or extrajudicial demand
for the next period is calculated. under and subject to the provisions of Article 1169 of the Civil
3. Legal Interest: Code.”
- Interest that the law directs to be charged in the
absence of any agreement (as to the rate) between Hence, petitioner is liable for the payment of legal interest per
the parties. annum to be computed from December 20, 1994, the date when
- Legal Interest Rate: 6% per annum (BSP Circular she received the demand letter. After the judgment becomes
no. 799, Series of 2013) final and executory until the obligation is satisfied, the amount
due shall earn interest at 12% per year, the interim period being
4. Lawful Interest:
deemed equivalent to a forbearance of credit.
- Interest that the law allows or does not prohibited
which is the rate of interest within the maximum In view of our ruling that there can be no stipulated interest in
prescribed by law. this case, there is no need to pass upon the second issue of
5. Unlawful or Usurious interest: whether or not the interests were usurious.
- Interest that is paid or stipulated to be paid beyond
- Note: Pursuant to BSP Circular no. 700, Series of
the maximum fixed by law
2013, the legal interest rate shall be 6% per annum
REQUISITES TO RECOVER INTEREST:
1. The payment of interest must be expressly stipulated; SPS. BARRERA vs. SPS. LORENZO
- If a particular rate of interest has been expressly GR no. 130994, September 18, 2002
stipulated by the parties in writing, that interest
FACTS:
shall be applied and not the legal interest. (Casa
On May 14, 1991, Sps. Barreras executed a real estate mortgage
Filipina vs. Deputy Secretary, 209 SCRA 399)
in favor of Sps. Lorenzos to secure the loan of P325,000. The
- If the parties expressly agreed in writing on the mortgage contract provides that the new loan shall be payable
payment of interest but the exact rate of the within 3 months (from May 14, 1991 until August 14, 1991); that
interest is not mentioned, the legal rate of 6% shall it shall earn 5% per month, and should Sps. Barreras fail to pay
be payable. their own within the said period, the mortgaged shall be
14 CREDIT TRANSACTIONS
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foreclosed. between the parties. In resolving an issue based upon a
contract, we must first examine the contract itself, especially the
Sps. Barreras failed to pay on August 14, 1991 but Sps. provisions thereof which are relevant to the controversy. The
Lorenzos allowed them to complete their payment until general rule is that if the terms of an agreement are clear and
December 23, 1993, in which they paid a total of P687,000. leave no doubt as to the intention of the contracting parties, the
Subsequently, Sps. Lorenzos demanded payment of P325,000 literal meaning of its stipulations shall prevail. It is further
plus interest to Sps. Barreras but the latter claimed that they required that the various stipulations of a contract shall be
overpaid their obligation and demanded the return of their land interpreted together, attributing to the doubtful ones that sense
title. which may result from all of them taken jointly.
Sps. Barrera filed a complaint for sum of money against Sps. In this case, the phrase "for the last six months only" should be
Lorenzos but the RTC ruled in their favor, which held that the taken in the context of the entire agreement. We agree with and
stipulated 5% monthly interest to be paid by Sps. Barreras adopt the CA’s interpretation of the phrase in this wise: ”Their
corresponds only to the period from May 14, 1991 up to August agreement speaks of two (2) periods of six months each. The
14, 1991, the term of the loan. Thereafter, the monthly interest first six-month period was given to plaintiff-appellee (respondent)
should be 12% per annum. However, the CA reversed it and to make up her mind whether or not to purchase
contended that the 5% monthly interest should be until the loan defendant-appellant’s (petitioner's) property. The second
was fully paid. six-month period was given to defendant-appellant to pay the P2
million loan in the event that plaintiff-appellee decided not to buy
ISSUE: the subject property in which case interest will be charged "for
W/N the 5% monthly interest on the loan was only for 3 months the last six months only", referring to the second six-month
(from may 14, 1991 until August 14, 1991) rather than until the period. This means that no interest will be charged for the first
loan was fully paid. six-month period while appellee was making up her mind
whether to buy the property, but only for the second period of six
RULING: months after appellee had decided not to buy the property. This
YES, When the terms of a contract are clear and leave no doubt is the meaning of the phrase "for the last six months only".
as to the intention of the contracting parties, the literal meaning Certainly, there is nothing in their agreement that suggests that
of its stipulations governs. In such cases, courts have no interest will be charged for six months only even if it takes
authority to alter a contract by construction or to make a new defendant-appellant an eternity to pay the loan.”
contract for the parties. It is clear from the (contract) stipulations
that the loan shall be payable within 3 months (from May 14, The agreement that the amount given shall bear compounded
1991 up to August 14, 1991), during such period, the loan shall bank interest for the last six months only, i.e., referring to the
earn an interest of 5% per month. there is no written agreement second six-month period, does not mean that interest will no
between the parties that the loan will continue to bear 5% longer be charged after the second six-month period since such
monthly interest beyond the agreed three-month period. stipulation was made on the logical and reasonable expectation
that such amount would be paid within the date stipulated.
Applying Art. 1956, NCC, “No interest shall be due unless it has Considering that petitioner failed to pay the amount given which
been expressly stipulated in writing.” - the RTC correctly held under the Memorandum of Agreement shall be considered as a
that the monthly interest of 5% corresponds only to the 3-month loan, the monetary interest for the last six months continued to
period of the loan. (from May 14, 1991 to August 14, 1991), as accrue until actual payment of the loaned amount.
agreed by the parties in writing. Thereafter, the interest rate for
the loan is 12% per annum. The payment of regular interest constitutes the price or cost of
the use of money and thus, until the principal sum due is
returned to the creditor, regular interest continues to accrue
FRIAS vs. SAN DIEGO-SISON since the debtor continues to use such principal amount. It has
GR no. 155223, April 4, 2007 been held that for a debtor to continue in possession of the
principal of the loan and to continue to use the same after
Petitioner contends that the interest, whether at 32% per annum maturity of the loan without payment of the monetary interest,
awarded by the trial court or at 25% per annum as modified by would constitute unjust enrichment on the part of the debtor at
the CA which should run from June 7, 1991 until fully paid, is the expense of the creditor.
contrary to the parties’ Memorandum of Agreement; that the
agreement provides that if respondent would decide not to Petitioner and respondent stipulated that the loaned amount
purchase the property, petitioner has the period of another six shall earn compounded bank interests, and per the certification
months to pay the loan with compounded bank interest for the issued by Prudential Bank, the interest rate for loans in 1991
last six months only; that the CA’s ruling that a loan always bears ranged from 25% to 32% per annum. The CA reduced the
interest otherwise it is not a loan is contrary to Art. 1956 of the interest rate to 25% instead of the 32% awarded by the trial
New Civil Code which provides that no interest shall be due court which petitioner no longer assailed.
unless it has been expressly stipulated in writing.
In Bautista v. Pilar Development Corp., We upheld the validity of
We (Supreme Court ) are not persuaded. While the CA’s a 21% per annum interest on a ₱142,326.43 loan. In Garcia v.
conclusion (that a loan always bears interest otherwise it is not a Court of Appeals, We sustained the agreement of the parties to a
loan) is flawed since a simple loan may be gratuitous or with a 24% per annum interest on an ₱8,649,250.00 loan. Thus, the
stipulation to pay interest, We find no error committed by the CA interest rate of 25% per annum awarded by the CA to a ₱2
in awarding a 25% interest per annum on the two-million peso million loan is fair and reasonable.
loan even beyond the second six months stipulated period. - Note: according to Atty. Llaguno, the Frias vs. San
Diego-Sison case is the better ruling from Sps.
The Memorandum of Agreement executed between the
petitioner and respondent on December 7, 1990 is the law Barrera vs. Sps. Lorenzo Case
CREDIT TRANSACTIONS 15
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SPS. ABELLA vs. ABELLA applicable legal rate of interest, which refers to "the
GR no. 195166, July 8, 2015 prevailing rate at the time when the agreement was entered
into.” In the instant case, the legal rate of interest prevailing at
Respondents entered into a simple loan or mutuum, rather than the time of the entering of the Credit Agreement is 12%. Hence,
a joint venture, with petitioners. Moreover, a Simple loan may be the CA did not err in imposing monetary interest of 12% on the
gratuitous or with a stipulation to pay interest. The text of the outstanding principal loan obligation. Although, in accordance
acknowledgment receipt is uncomplicated and straightforward. It with Nacar v. Gallery Frames, the monetary interest rate of 12%
attests to: first, respondents' receipt of the sum of P500,000.00 per annum should be applied from the time the agreement was
from petitioner Alma Abella; second, respondents' duty to pay entered into until June 30, 2013. Starting July 1, 2013 until the
tack this amount within one (1) year from March 22, 1999; and finality of this Decision, the monetary interest rate that shall be
third, respondents' duty to pay interest. Consistent with what applied to the principal loan obligation is 6% per annum.
typifies a simple loan, petitioners delivered to respondents with
the corresponding condition lat respondents shall pay the same Vasquez argues that the imposable monetary interest should be
amount to petitioners within one (1) year. the nature of the pegged at 6% per annum all throughout, citing Nacar v. Gallery
contractual relation between petitioners and respondents, Frames. In arguing that 6% should be the imposable interest rate
controversy persists over respondents' duty to pay conventional all throughout, Vasquez cites the aforesaid case, which states
interest, i.e., interest as the cost of borrowing money. that "[i]n the absence of stipulation, the rate of interest shall be
6% per annum to be computed from default, i.e., from judicial or
On the matter of interest, the text of the acknowledgment receipt extrajudicial demand under and subject to the provisions of
is simple, plain, and unequivocal. It attests to the contracting Article 1169 of the Civil Code.”
parties' intent to subject to interest the loan extended by
petitioners to respondents. The controversy, however, stems Vasquez's argument is erroneous. It must be recalled that
from the acknowledgment receipt's failure to state the exact rate there are two types of interest — monetary interest and
of interest. compensatory interest. Interest as a compensation fixed by the
it remains that where interest was stipulated in writing by the parties for the use or forbearance of money is referred to as
debtor and creditor in a simple loan or mutuum, but no exact monetary interest, while interest that may be imposed by law or
interest rate was mentioned, the legal rate of interest shall apply. by courts as penalty for damages is referred to as compensatory
At present, this is 6% per annum, subject to Nacar's qualification interest. The 6% per annum to be computed from default cited
on prospective application. by Vasquez, referring to Nacar v. Gallery Frames, refers to an
award of interest in the concept of actual and compensatory
Applying this, the loan obtained by respondents from petitioners damages when a loan obligation is breached. But the 12% per
is deemed subjected to conventional interest at the rate of 12% annum interest imposed by the CA on the principal loan
per annum, the legal rate of interest at the time the parties obligation, which is pegged at the legal rate of interest prevailing
executed their agreement. Moreover, should conventional at the time the agreement was entered into, refers to monetary or
interest still be due as of July 1, 2013, the rate of 12% per annum conventional interest, and not compensatory interest. Again,
shall persist as the rate of conventional interest. This is so jurisprudence holds that when the provision on the loan
because interest in this respect is used as a surrogate for the agreement on monetary or conventional interest is struck down
parties' intent, as expressed as of the time of the execution of for being null and void, the courts shall replace the null and void
their contract. In this sense, the legal rate of interest is an interest rate with the legal rate of interest prevailing at the time
affirmation of the contracting parties' intent; that is, by their the agreement was entered into. As stated earlier, such legal rate
contract's silence on a specific rate, the then prevailing legal rate is 12% per annum, to be applied from the time the loan
of interest shall be the cost of borrowing money. This rate, which agreement was entered into until June 30, 2013. Then, from July
by their contract the parties have settled on, is deemed to 1, 2013 until the finality of this Decision, the monetary interest
persist regardless of shifts in the legal rate of interest. Stated rate that shall be applied to the principal loan obligation is 6%
otherwise, the legal rate of interest, when applied as per annum. To arrest the incurring of interest pending litigation,
conventional interest, shall always be the legal rate at the time an option that would have been available to the debtor was to
the agreement was executed and shall not be susceptible to consign the amount of the principal loan obligation before the
shifts in rate. RTC. This was not done by Vasquez.
For its part, PNB argues that, upon the declaration of nullity of
VASQUEZ vs. PNB the interest adjustment clauses of the loan documents, the
GR no. 228355, August 28, 2019 originally stipulated interest rates of 16.5% per annum for the
Pangkabuhayan Loan and 18% per annum for the RCL should
The Court has held that in a situation wherein the interest rate be imposed, and not the legal rate of 12% per annum.
scheme imposed by the bank was struck down because the
bank was allowed under the loan agreement to unilaterally PNB's argument is likewise erroneous. The Court has
determine and increase the imposable interest rate, thus being previously held that when an escalation clause has been
null and void, "only the interest rate imposed is nullified; annulled, ordinarily, the principal amount of the loan should be
hence, it is deemed not written in the contract. The agreement subjected to the original or stipulated interest rate of interest.97
on payment of interest on the principal loan obligation However, such rule does not find any application in the instant
remains."89 Hence, Vasquez is still obligated to pay back the case. As already explained extensively, the Court finds that the
principal loan obligation of P1,400,000.00 with interest. loan documents, on their face, are ambiguous and unclear as to
the real stipulated rate of interest. Further, the Court has also
What then would be the conventional or monetary interest rate to found that the original interest rate scheme envisioned under the
be imposed on the outstanding principal loan obligation? Credit Agreement, owing to its unilateral nature that violates the
Jurisprudence has held that in a similar situation wherein an principle of mutuality of contracts, is null and void. Hence, with
interest rate on a loan has been declared null and void due to the respect to the imposition of monetary or conventional interest,
violation of the mutuality of contracts, the Court shall apply the the Court cannot refer back to the allegedly stipulated interest
rate scheme. It shall resort to the imposition of the legal rate of
16 CREDIT TRANSACTIONS
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Morillo Notes
interest at the time of the entering of the loan agreement, i.e., 3. Obligation to Pay Sum Interest shall be Interest shall be
12% per annum. of Money5 is imposed by the imposed by the
BREACHED court at the rate of court at the
6% per annum\. prevailing legal
interest prescribed
Floating Interest Rate System - instances wherein an
NO INTEREST by BSP, pursuant to
interest rate scheme which does not specifically indicate a shall be adjudged Arts. 2210-2211,
particular interest rate may be validly imposed. (Vasquez vs. on unliquidated NCC.
PNB, GR no. 228355,August 28, 2019) claims or
damages, except NO INTEREST shall
when or until the be adjudged on
GUIDELINES UNDER JURISPRUDENCE: demand can be Unliquidated Claims
established with or Damages until
NACAR VS. LARA GIFTS VS. reasonable the demand can be
GALLERY MIDTOWN certainty. established with
FRAMES INDUSTRIALS reasonable
certainty.
GR no. 189871, GR no. 225433,
INSTANCES:
August 12, 2013 August 28, 2019 Accrual With Interest shall Prevailing interest
Periods: Reasonable began to run from rate shall run from
1. Obligation to Pay Loan Interest due Interest due shall be Certainty the time the claim the time the claim is
or Forbearance of should be that of that was stipulated is made (judicially made (extrajudicially
Money1 is BREACHED + what is stipulated by the parties in or extrajudicially) or judicially) until full
Interest is Stipulated in writing. writing provided that payment
it is not excessive.
Without Interest shall Prevailing Legal
Interest due shall Accrual Period: Reasonable begin to run only Interest shall run
itself earn legal From the date of Certainty from the date the only from the date
interest from the it default2 until full judgment of the of judgment of the
is judicially payment, w/o court is made. trial court until full
demanded compounding payment
interest unless
expressly stipulated The actual base The actual base for
for computation of the computation of
None Interest due on the legal interest shall the interest shall be
Principal Amount be on the amount on the principal
accruing from the finally adjudged. amount finally
adjudged, without
judicial demand
shall SEPARATELY compounding
earn legal interest interest unless the
(at the prevailing latter is expressly
stipulated
BSP prescribed
rate) until frum
payment.
Note: The ruling under the case of Lara Gifts & Decors, Inc.
vs. Midtown Industrial is the prevailing guidelines.
2. Obligation to Pay Loan 6% per annum Interest on the
or Forbearance of Principal amount FORBEARANCE OF MONEY, GOODS, CREDITS OR
Money3 is BREACHED + shall be the
JUDGMENTS - refers to “arrangements other than a loan
Interest is NOT Prevailing BSP
Stipulated prescribed Legal agreement”, where a person acquiesces to the temporary
Interest Rate (6% use of his money, goods or credits pending happening of
per annum) certain events or fulfillment of certain conditions. (Lara’s Gift
& Decors vs. Midtown Industrial, GR no.225433, August 28,
Accrual Period: Accrual Period:
From Judicial or From the date of
2019)
Extrajudicial default4 until full
demand under payment, w/o
Art. 1169, NCC) compounding NACAR vs. GALLERY FRAMES
interest unless GR no. 189871, August 13, 2013
expressly stipulated
In the absence of an express stipulation as to the rate of interest
None Interest due on the that would govern the parties, the rate of legal interest for loans
Principal Amount or forbearance of any money, goods or credits and the rate
accruing from the allowed in judgments shall no longer be twelve percent (12%)
judicial demand per annum - as reflected in the case of Eastern Shipping Lines
shall SEPARATELY
earn legal interest
and Subsection X305.1 of the Manual of Regulations for Banks
(at the prevailing and Sections 4305Q.1, 4305S.3 and 4303P.1 of the Manual of
BSP prescribed Regulations for Non-Bank Financial Institutions, before its
rate) until frum amendment by BSP-MB Circular No. 799 - but will now be six
payment. percent (6%) per annum effective July 1, 2013. It should be
noted, nonetheless, that the new rate could only be applied
prospectively and not retroactively. Consequently, the twelve
1
Includes loan or forbearance of money, goods, credits or judgements
2
From Extrajudicial or Judicial Demand
3 5
Includes loan or forbearance of money, goods, credits or judgements DOES NOT INCLUDE loan or forbearance of money, goods, credits or
4
From Extrajudicial or Judicial Demand judgements
CREDIT TRANSACTIONS 17
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Morillo Notes
percent (12%) per annum legal interest shall apply only until
percent (6%) per annum pursuant to Article 2209 of
June 30, 2013. Come July 1, 2013 the new rate of six percent the Civil Code.
(6%) per annum shall be the prevailing rate of interest when - To be clear, however, Article 2212 of the Civil Code,
applicable. which provides that "interest due shall earn legal
interest from the time it is judicially demanded,
although the obligation may be silent upon this
HUN HYUNG PARK vs. EUNG WON CHOI point," does not apply because "interest due" in
GR no. 220826, March 27, 2019 Article 2212 refers only to accrued interest. A look
at the counterpart provision of Article 2212 of the
FACTS: new Civil Code, Article 1109 of the old Civil Code,
Hun Park extended a loan to Won Choi for P1,875,000. As
supports this. It provides: “Art. 1109. Accrued
payment, Choi issued a check in favor of Park, however when
interest shall draw interest at the legal rate from
Park deposited the check it was dishonored for being closed.
Subsequently, Park filed a complaint for estafa against Choi the time the suit is filed for its recovery, even if the
before the Court. Choi admitted he borrowed money from Park obligation should have been silent on this point. In
only for P1,500,000 and not P1,875,000. commercial transactions the provisions of the Code
of Commerce shall govern. Pawnshops and
ISSUE: savings banks shall be governed by their special
W/N Choi is liable for P1,500,000 only for the loan. regulations.”
- In interpreting the above provision of the old Civil
RULING:
Code, the Court ruled that Article 1109 applies only
NO, Choi is liable to pay Park the principal amount of
P1,875,00,00 and the corresponding legal interest thereon. The to conventional obligations containing a stipulation
only basis of Choi in support of his contention is the P1,500,000 on interest. Similarly, Article 2212 of the new Civil
is the principal and P375,000 interest in his Counter-Affidavit Code contemplates, and therefore applies, only
Hence, Choi’s contention fails to comply with Art. 1956, Civil when there exists stipulated or conventional
Code, which provides that no interest shall be due unless it has interest.
been expressly stipulated in writing. Based on the facts, Court
ruled that the entire principal amount owed by Choi to Park is
the face value of the check (P1,875,000) LARA’S GIFTS & DECORS, INC. vs. MIDTOWN
INDUSTRIAL SALES
GR no. 225433, August 28 2019
Notes in the case of Park v. Choi:
- Inasmuch as the parties did not execute a written The term "forbearance" in the context of the Usury Law has
loan agreement, and consequently, did not been defined as "a contractual obligation of lender or creditor to
stipulate on the imposition of interest, Article 1956 refrain, during a given period of time, from requiring the borrower
or debtor to repay a loan or debt then due and payable."
of the Civil Code, which states that "no interest
shall be due unless it has been expressly stipulated Forbearance of money, goods or credits should therefore refer to
in writing," operates to preclude the imposition and arrangements other than loan agreements, where a person
running of monetary interest on the principal. In acquiesces to the temporary use of his money, goods or credits
other words, no monetary interest having been pending happening of certain events or fulfillment of certain
agreed upon between the parties, none accrues in conditions.
favor of Park.
- Nevertheless, the moment a debtor incurs in delay Under Articles 2210 and 2211 of the Civil Code (breach of
contract and quasi-delict), when the obligation, other than loans
in the payment of a sum of money, the creditor is
or forbearance of money, goods or credits, is breached, the
entitled to the payment of interest as indemnity for
court may in its discretion impose an interest on the damages
damages arising out of that delay. Article 2209 of awarded. The interest imposed in the discretion of the court will
the Civil Code provides that: "if the obligation be the prevailing legal interest prescribed by the Bangko Sentral
consists in the payment of sum of money, and ng Pilipinas.
the debtor incurs in delay, the indemnity for
damages, there being no stipulation to the In contrast, Article 2209 of the Civil Code is applicable only to
contrary, shall be the payment of the interest loans or forbearance of money, goods or credit which arise out
of "obligations consisting in the payment of a sum of money, and
agreed upon, and in the absence of stipulation,
the debtor incurs in delay," and thus where there is a
the legal interest, which is six percent (6%) per debtor-creditor relationship. Articles 2210 and 2211 refer to
annum." obligations that do not involve the payment of a sum of money
- Consequently, by operation of Article 2209 of the and there is no debtor-creditor relationship. Moreover, the
Civil Code, Choi becomes liable to pay Park payment of interest in Article 2209 is mandatory, while the
compensatory interest to indemnify Park for the payment of interest in Articles 2210 and 2211 is discretionary on
damages the latter suffered as a result of Choi's the court.
delay in the payment of the loan. Delay in this case,
pursuant to Article 1169 of the Civil Code, begins COMPOUNDED INTEREST (WHEN UNPAID INTEREST
to run from the time Park extrajudicially demanded EARNS INTEREST):
from Choi the fulfillment of his loan obligation that
is, on May 19, 2000. There being no stipulation as Article 1959. Without prejudice to the provisions of article 2212,
to the rate of compensatory interest, the rate is six interest due and unpaid shall not earn interest. However, the
18 CREDIT TRANSACTIONS
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contracting parties may by stipulation capitalize the interest due
paid?
and unpaid, which as added principal, shall earn new interest.
(NCC) Answer:
a. Payment during finality of Judgment shall be
P1,974,400.00
Article 2212. Interest due shall earn legal interest from the time it - Principal Amount = P1,000,000
is judicially demanded, although the obligation may be silent - Monetary Interest: [P1,000,000 x 12% = 120,000] x
upon this point. (NCC) 5 years (from PN Date) = P600,000.00
- Compensatory Interest: [P1,000,000 x 12% =
GENERAL RULE: Accrued interest (interest due and unpaid) P120,000] x 3 years (from time of demand) =
shall not earn interest. P360,000
EXCEPTION: - Compound Interest: Interest only on the interest
1. When Judicially Demanded under Art. 2212, NCC: that has accrued as of judicial demand and on
interest that was stipulated - monetary interest. At
2. When there is an express stipulation made by the
parties that the interest due and unpaid shall be the time of judicial demand, the monetary interest
added to the principal obligation and the resulting that has accrued is accrued monetary interest only.
total amount shall earn interest, (Mambulao Lumber At the time of judicial demand, the monetary
Co. vs. PNB, 22 SCRA 359) interest that has accrued for 2 years of the PN is
P240,000. thus, (P240,000 x 6% = P14,400).
- Total Computation: [1,000,000 + 600,000 + 360,000
COMPUTATION EXERCISES ON INTEREST: + 14,400 = P1,974,400.00
1. B borrowed from C P1,000,000 for 1 year. No interest
was agreed upon in writing. At the end of one year, C b. Each type of interest will continue running for
demanded payment but B was unable or refused to another year. (Lara’s Gift case). Hence, no more
pay. After 2 more years, B was ready to pay. In addition grossing up of all as one principal as this part of
to the principal sum of P1,000,000, How much interest the Nacar doctrine was deleted. Therefore, B shall
(if any) must B pay? pay only the total amount of P2,214,400.00
- Principal amount = P1,000.000
Answer: B must pay P120,000 as interest. - Monetary Interest: [1,000,000 x 12% = P120,000] x
6 years (interest from PN Date) = P720,000
- B is not liable for monetary interest because it was
not agreed in writing. - Compensatory Interest: [1,000,000 x 12% =
- B is liable for compensatory interest counted from 120,000] x 4 years (from time of demand) =
the time of demand or for 2 years therefrom in the P480,000
amount of P120,000.00. - Compounded Interest: P240,000 x 6% = P14,400
- [P1,000,000 x 6% = 60,000] x 2 years = P120,000 - Total computation: [1,000,000 + 720,000 + 480,000
+ 14,400] = P2,214,400
2. B borrowed from C P1,000,000 for 2 years. It was
agreed in writing that the interest would be 12% per
annum. At the end of 2 years, C made an extrajudicial
demand but B was unable or refused to pay. At the end Escalation and De-escalation Clauses:
of 3 more years, B was ready to pay. How much all
must B pay?
Escalation Clause - a stipulation allowing an increase in the
Answer: B must pay a total amount of P1,960,000.00 interest rate originally agreed upon by the parties.
- Principal debt - P1,000,000
- Monetary Interest: De-escalation Clause - a stipulation allowing a decrease in
- [P1,000,000 x 12% = 120,000] x 5 years6 = P600,000 the interest rate originally agreed upon by the parties.
- Compensatory Interest:
- [P1,000,000 x 12%7 = P120,000] x 3 years = P360,000 ESCALATION CLAUSE ARE GENERALLY VALID:
- Total Computation: - These are valid stipulations in commercial
- [P1,000,000 + 600,000 + 360,000] = P1,960,000
contracts to maintain fiscal stability and to retain
the value of money on long-term contracts. (New
3. B borrowed from C P1,000,000 for 2 years. It was
Sampaguita Builders vs. PNB, 235 SCRA 565
agreed in writing that interest would be 12% per
(2004))
annum. At the end of 2 years, C made a judicial - A stipulation that the interest rate will be increased
demand (a court action was instituted. 3 years after if the BSP raises its rediscounting rates is valid.
filing the case, a judgment was rendered in favor of C. (Concepcion vs. CA, 274 SCRA 614)
(a) How much all must B pay? (b) If B pays the judgment
debt only a year after its finality, How much should be
ESCALATION CLAUSE MUST NOT BE SOLELY
POTESTATIVE:
6
Refers to the no. of years the monetary interest accrued - An escalation clause that grants the creditor-lender
7
Rate is 12% because the SC says that the compensatory rate follows an unbridled right to adjust the interest
the monetary rate.
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independently and upwardly, completely depriving
the debtor-borrower of the right to assent to an Escalation clauses are not basically wrong or legally
important modification in the agreement is void. objectionable so long as they are not solely potestative but
(Juico vs. Chinabank, 695 SCRA 520) based on reasonable and valid grounds. Here, as clearly
- A stipulation that the bank can increase the demonstrated above, not only the increases of the interest rates
stipulated interest per annum “within the limits on the basis of the escalation clause patently unreasonable
allowed by law at any time depending on whatever and unconscionable, but also there are no valid and
reasonable standards upon which the increases are
policy (the bank) may adopt in the future” is void.
anchored.”
(Silos vs. PNB, GR no. 181045, July 2, 2014)
Applying the foregoing in the instant case, to reiterate once
CONSEQUENCES OF INVALID ESCALATION CLAUSE: more, PNB itself readily admits in its Petition that the
- An invalid escalation clause does not affect the modification of the applicable interest rates under the Credit
validity of the loan agreement because it is Agreement is made dependent "on [the] future policy adopted by
separable from other stipulations of the loan [PNB].” It has been indubitably established that the escalation of
agreement. Hence, the creditor is entitled to the interest rates in the instant case is solely potestative on the
part of the creditor and not anchored on valid and
payment of the principal amount of the loan.
reasonable standards.
- Note: Since the escalation clause is invalid, the
interest rate payable by the borrower should be the Considering the foregoing, without a doubt, the interest rate
original interest rate agreed upon by the parties. scheme imposed upon Vasquez under the loan agreement is
Moreover, the borrower is not estopped from clearly one-sided, unilateral, and violative of one of the
questioning the validity of the clause or the interest fundamental characteristics of contracts - which is the
rate imposed. essential equality of the contracting parties, oftentimes
called the principle of mutuality of contracts. Therefore, the
interest rate scheme provided under the Credit Agreement and
VASQUEZ vs. PNB the promissory notes is null and void.
GR no. 228355, August 28, 2019
Floating rates of interest refer to the variable interest rates stated
on a market-based reference rate agreed upon by the parties.
Unconscionable Rates and the Usury Law:
Stipulations on floating rate of interest differ from escalation
clauses. Escalation clauses are stipulations which allow for the USURIOUS CONTRACTS DECLARED VOID:
increase of the original fixed interest rate. In contrast, a floating
- Contracts and stipulations, under any cloak or
rate of interest pertains to the interest rate itself that is not fixed
as it is dependent on a market-based reference that was agreed device whatever, intended to circumvent the laws
upon by the parties. Court explained that the BSP allows banks against usury shall be void. The borrower may
and borrowers to agree on a floating rate of interest provided recover in accordance with the laws on usury. (Art.
that it must be based on market-based reference rates: Ӥ 1957, NCC)
X305.3 Floating rates of interest. The rate of interest on a - Usurious contracts shall be governed by the Usury
floating rate loan during each interest period shall be stated Law and other special laws, so far as they are not
on the basis of Manila Reference Rates (MRRs), T-Bill Rates inconsistent with this Code. (Art. 1961, NCC)
or other market based reference rates plus a margin as may
be agreed upon by the parties.”
USURY LAW NOW IS LEGALLY NON-EXISTENT:
The Court explained that "[t]his BSP requirement is consistent - Central Bank Circular No. 905 (effective Jan. 1,
with the principle that the determination of interest rates cannot 1983) removed the Usury Law ceiling on interest
be left solely to the will of one party. It further emphasizes that rates for secured and unsecured loans, regardless
the reference rate must be stated in writing, and must be of maturity, rendering it legally ineffective.
agreed upon by the parties.” Hence, in order for the concept of - According to the SC, the aforesaid circular
a floating rate of interest to apply, it presupposes that a did not repeal nor in any way amend the
market-based reference rate is indicated in writing and agreed
Usury Law but simply suspended its
upon by the parties. In the aforesaid case, the Court did not
deem the interest rate imposed therein as an imposable floating effectivity. (Medel vs. CA, 299 SCRA 481)
rate of interest because the "reference rates are not contained in
writing as required by law and the BSP.” INTEREST RATE DEPENDS UPON AGREEMENT:
- The interest legally chargeable now depends upon
Applying the foregoing in the instant case, a perusal of the loan the agreement between the lender and the
documents reveals that PNB did not envision a rate scheme borrower. (Liam Law vs. Olympic Sawmill Co., 129
wherein a non fixed interest rate is made dependent on a SCRA 439). Note: The imposed rate should be in
market-based reference rate. There is absolutely no
writing.
market-based reference rate indicated in the loan
documents. On the contrary, PNB admits that under the Credit
Agreement, the interest rates are made dependent on "whatever Note: While the Usury Law ceiling on interest rates was
policy it may adopt in the future,” and not on MRRs, T-Bill Rates suspended, it does not grant the lender independent authority to
or other similar market-based reference rates as required by the raise interest rates to levels which will either enslave their
BSP. The fact alone that there is no market-based reference rate borrowers. When the agreed rate is found to be “excessive,
stipulated in writing negates any idea that a floating rate of iniquitous, unconscionable or exorbitant, the courts may declare
interest system is applicable in the instant case. the rate illegal and reduce the same by reason of equity. (Imperial
20 CREDIT TRANSACTIONS
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vs. juacian, 427 SCRA 517) either by force of another person or by force of circumstances.
However, the premise is not always true. There are imperfections
EXAMPLES OF FAIR AND REASONABLE INTEREST in the loan market. One party may have more bargaining power
RATE: than the other. A borrower may be in need of funds more than a
1. 25% per annum interest on a P2 Million loan (Frias lender is in need of lending them. In that case, the lender has
vs. CA, 520 SCRA 244) more commanding power to set the price of borrowing than the
2. Interest rate of 24% per annum agreed upon by the borrower has the freedom to negotiate for a lower interest rate.
parties. (Bacolor vs. Banco Filipino Savings, 515
Petitioner obtained the loan out of extreme necessity. As pointed
SCRA 244)
out by respondent, the property would have been earlier
3. 23% per annum interest rate and 12% per annum foreclosed by the National Housing Authority if not for the loan.
penalty charge on Petitioner’s P1,700,000 loan. Moreover, it would be unjust to impose a heavier burden upon
(Mallari vs. Prudential Bank, 697 SCRA 555) petitioner, who would already be losing his and his family's
4. 5% per month interest rate (Pascual vs. Ramos, home. Respondent would not be unjustly deprived if the interest
384 SCRA 105) rate is reduced. After all, respondent still has the right to
foreclose the property. Thus, we affirm the Court of Appeals
Decision to reduce the interest rate to I% per month or 12% per
EXAMPLES OF EXCESSIVE INTEREST RATE, HENCE
annum.
INVALID:
a. Interest rate of 5.5% per month or 66% per annum
(Medel vs Cruz, 359 Phil. 820);
SECURITY BANK vs. RTC MAKATI
b. interest rate of 3% per month or 36% per annum GR no. 113926, October 23, 1996
(Ruiz vs. CA, 401 SCRA 410);
c. Stipulated 6% per month or 72% per annum FACTS:
interest on a P60,000 was annulled by the SC. On April 27, 1983, Magtanggol Eusebio executed Promissory
(Solangon vs. Salazar, 412 SCRA 816); Note No. TL/74/178/83 in favor of Security Bank and Trust Co.
d. 10% and 8% interest rates per month on a (SBTC) in the total amount of P100,000.00 payable in six
P1,000,000 lan was excessive. (Cuaton vs. Salud, monthly installments with a stipulated interest of 23% per annum
up to the fifth installment.
421 SCRA 278);
e. Interest rate of 16% per month (Imperial vs. On July 28, 1983,Eusebio again executed Promissory Note No.
Jaucian, 427 SCRA 517) TL/74/1296/83 in favor of SBTC. Eusebio bound himself to pay
f. 7% interest per month on a P15,000 loan the sum of P100,000.00 in six (6) monthly installments plus 23%
amounting to 84% per annum (Arrofo vs. Quino, interest per annum.
449 SCRA 284);
g. Interest rate of 6% per month or 72% per annum is Finally, another Promissory Note No. TL74/1491/83 was
similarly invalid (Carpo vs. Chua, 471 SCRA 471); executed on August 31, 1983 in the amount of P65,000.00.
Eusebio agreed to pay this note in six (6) monthly installments
h. Interest rate of 4% per month or 48% per annum
plus interest at the rate of 23% per annum.
was deemed to be highly unconscionable (Bulos
vs. Yasuma (527 SCRA 727); Upon the failure and refusal of Eusebio to pay the aforestated
i. Interest rate of 10% per month as agreed upon by balance payable, a collection case was filed in court by SBTC. 5
the parties is excessive, iniquitous, and On March 30, 1993, the court a quo rendered a judgment in
unconscionable (Svendsen vs People, 546 SCRA favor of SBTC and order Eusebio to:
659) 1. Pay the sum of P16,665.00, plus interest of 12% per
annum starting 27 September 1983, until fully paid;
2. Pay the sum of P83,333.00, plus interest of 12% per
VITUG vs. ABUDA annum starting 28 August 1983, until fully paid;
GR no. 201264, January 1, 2016 3. Pay the sum of P65,000.00, plus interest of 12% per
annum starting 31 August 1983, until fully paid;
The Court of Appeals correctly found that the interest rates of 4. Pay the sum equivalent to 20% of the total amount
5% or 10% per month imposed on petitioner's loan were due and payable to plaintiff as and by way of
unconscionable. attorney’s fees
Parties are free to stipulate interest rates in their loan contracts in ISSUE:
view of the suspension of the implementation of the Usury Law W/N the RTC has the right to change to interest rate of the PNs
ceiling on interest effective January 1, 1983. The freedom to executed by SBTC and Eusebio?
stipulate interest rates is granted under the assumption that we
have a perfectly competitive market for loans where a borrower RULING:
has many options from whom to borrow. It assumes that parties NO, The rate of interest was agreed upon by the parties freely.
are on equal footing during bargaining and that neither of the Significantly, respondent did not question that rate. It is not for
parties has a relatively greater bargaining power to command a respondent court a quo to change the stipulations in the contract
higher or lower interest rate. It assumes that the parties are where it is not illegal. Furthermore, Article 1306 of the New Civil
equally in control of the interest rate and equally have options to Code provides that contracting parties may establish such
accept or deny the other party's proposals. In other words, the stipulations, clauses, terms and conditions as they may deem
freedom is granted based on the premise that parties arrive at convenient, provided they are not contrary to law, morals, good
interest rates that they are willing but are not compelled to take customs, public order, or public policy. We find no valid reason
CREDIT TRANSACTIONS 21
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Morillo Notes
for the respondent court a quo to impose a 12% rate of interest
- Credit card issuers shall impose an interest or
on the principal balance owing to petitioner by respondent in the finance charge on all credit transactions not to
presence of a valid stipulation. In a loan or forbearance of exceed an annual interest rate of 24%, except
money, the interest due should be that stipulated in writing, and credit card installment loans which shall be subject
in the absence thereof, the rate shall be 12% per annum. Hence, to monthly add-on rate exceeding 1% (Sec. 2):
only in the absence of a stipulation can the court impose the - In case of card cash advances, aside from
12% rate of interest. the foregoing applicable maximum interest
rate caps, no other charge or fee shall be
The promissory notes were signed by both parties voluntarily.
imposed or collected apart from the
Therefore, stipulations therein are binding between them.
Respondent Eusebio, likewise, did not question any of the processing fee in the maximum amount of
stipulations therein. In fact, in the Comment filed by respondent P200 per transaction.
Eusebio to this court, he chose not to question the decision and - The rate of interest, including commissions,
instead expressed his desire to negotiate with the petitioner premiums, fees and other charges, on any loan, or
bank for "terms within which to settle his obligation. forbearance of any money, goods or credits
regardless of maturity and whether secured or
unsecured, shall not be subject to any regulatory
D. CREDIT ACCOMMODATIONS: ceiling, EXCEPT for the interest or finance charges
imposed on credit card receivables, including cash
advances. (Secs. 4 and 5)
OTHER FORMS OF MUTUUM:
1. Credit Cards
2. Letters of Credit 2. LETTERS OF CREDIT:
3. Financial Lease (RA 5980)
MEANING OF LETTERS OF CREDIT:
1. CREDIT CARD: - Letters of credit are those issued by one merchant
to another, or for the purpose of attending to a
commercial transaction. (Art. 567, Code of
DEFINITION OF CREDIT CARDS:
Commerce)
- Any card, plate, coupon book or other credit device
existing for the purpose of obtaining money,
NATURE OF LETTERS OF CREDIT:
property, labor or services on credit. (Sec. X320.1,
Manual of Regulations for Banks) BANK OF AMERICA, NT & SA vs. CA
- it means any card, plate, coupon book, or other GR no. L-105395, December 10, 1993
credit device existing for the purpose of obtaining
A letter of credit is a financial device developed by merchants
money, goods, property, labor or services or any
as a convenient and relatively safe mode of dealing with sales of
thing of value on credit. (Sec. 3(f), RA 8484) goods to satisfy the seemingly irreconcilable interest of a seller,
who refuses to part with his goods before he is paid, and a buyer,
BSP CIRCULAR NO. 1098, S. 2020 (Ceiling On Interest Or who wants to have control of the goods before paying. To break
Finance Charges For Credit Card Receivables): the impasse, the buyer may be required to contract a bank to
- Banks shall impose an interest or finance charge on issue a Letter of Credit in favor of the seller so that (by virtue of
all credit card transactions not to exceed an annual the letter of credit) the issuing bank can authorize the seller to
interest of 24%, EXCEPT credit card installment draw drafts and engage to pay them upon their presentment
simultaneously with the tender of documents required by the
loans which shall be subject to monthly add-on
letter of crest. The buyer and seller agree on what documents
rate not exceeding 1%. (Sec. 1) are to be presented for payment, but ordinarily they are
- In case of credit card cash advances, documents of title evidencing or attesting to the shipment of the
aside from the foregoing applicable goods to the buyer.
maximum interest rate caps, no other
charge or fee shall be imposed or Once the credit is established, the seller ships the goods to
collected apart from the processing fee in the buyer and the process secures the required shipping
the maximum amount of P200 per documents or documents of title. to get paid, the seller executes
a draft and pays cash to the seller if it finds that the documents
transaction.
submitted by the seller conform with what the letter of credit
- Banks shall only charge interest or finance charges
required. the bank then obtains possession of the documents
arising from the non-payment in full or on time of upon paying the seller. The transaction is completed when the
the outstanding balance based on the unpaid buyer reimburses the issuing bank and acquires the documents
amount of the outstanding balance as of statement entitling him to the goods. Under this arrangement, the seller
cut-off date, only apply to change in interest or gets paid only if he delivers the documents of title over the
finance charges and the change in processing fees goods, while the goods only after reimbursing the bank.
brought about by the imposition of the cap on
interest or finance charges on all credit card PURPOSE OF LETTERS OF CREDIT:
transactions and the imposition of the maximum - The primary purpose of the letter of credit is to
amount of processing fee on credit card advances substitute for and therefore support, the agreement
which will take effect on November 3, 2020 (Sec. 1)
22 CREDIT TRANSACTIONS
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Morillo Notes
of the buyer/importer to pay money under a period, within 6 months from its date in any point
contract or other arrangement. of the Philippines, and within 12 months outside
- It creates in the seller/exporter a secure thereof, it shall be void in fact and in law. (art. 572,
expectation of payment. (Reliance Commodities vs. Code of Commerce)
Daewoo Industrial, GR no. L-100831, December
17, 1993)
RELIANCE COMMODITIES vs. DAEWOO INDUSTRIAL
GR no. 100831, December 17, 1993)
ESSENTIAL CONDITIONS OF LETTERS OF CREDIT:
1. To be issued in favor of a determined person and FACTS:
not to order; Reliance Commodities and Daewoo Industrial entered into a
2. To be limited to a fixed and specified amount, or to contract of sale wherein Daewoo shall ship and deliver 2,000
one or more indeterminate amounts, but all within a metric tons of Foundry Pig Iron (“Pig Irons”) to Reliance for
maximum sum the limit of which must be exactly 400,000USD. The shipment was fully paid but the subject cargo
fell short of 135.655 metric tons of Pig Irons. Subsequently,
stated. (Art. 568, Code of Commerce)
Reliance and Daewoo entered another contract. Daewoo
acknowledged the short shipment of 135.655 metric tons and
EFFECT OF ABSENCE OF THE ESSENTIAL CONDITIONS bound itself to reduce the price in order to compensate Reliance
TO A LETTER OF CREDIT: thereof. However, the contract was not consummated. Reliance
- Letters of credit which do not have one of the filed with ChinaBan an application for a Letter of Credit (L/C) in
aforesaid conditions shall be considered to be favor of Daewoo but it was denied and Reliance was asked to
simply as letters of recommendation. (Art. 568, last submit purchase orders from end-users to support its
par., Code of Commerce) application. Reliance was not to raise the purchase order and
because of its failure to comply with its undertaking under the
contract, Daewoo was forced to sell the foundry pig irons to
THREE DISTINCT RELATIONSHIPS IN A LETTERS OF another buyer at a lower price. Reliance filed an action for
CREDIT TRANSACTION: damages against Daewoo for the recovery of P226,370.48
1. One contract relationship links the party applying representing the value of the short delivery of 135.655 metric
for the Letters of Credit (the account party or buyer tons of foundry pig iron under the first contract. Daewoo filed a
or importer) and the party for whose benefit the counterclaim, contending that Reliance was guilty of breach of
Letters of Credit is issued (the beneficiary or seller contract when it failed to open a letter of credit as required in the
or exporter); second contract.
2. A second contract relationship is between the
ISSUE:
account party and the issuing bank; and W/N the failure of Reliance to open a letter of credit (L/C) is liable
3. The third contract relationship is established to Daewoo for damages?
between the issuing bank and the beneficiary.
(Reliance Commodities vs. Daewoo Industrial, GR RULING:
no. L-100831, December 17, 1993) Daewoo is liable for damages because the contract to deliver the
goods were already perfected. The opening of an L/C upon
RIGHTS AND LIABILITIES: application of Reliance was not a condition precedent for the
birth of the obligation of Reliance to purchase foundry pig iron
- One who issues a letter of credit shall be liable to
from Daewoo. As a rule, the failure to open the appropriate letter
the person on whom it was issued for the amount of credit did not prevent the birth of the contract, and neither did
paid by virtue of the same within the maximum such failure extinguish the contract.
fixed therein. (Art. 569, Code of Commerce)
- Letters of credit cannot be protested, even when In the instant case, the opening of the letter of credit in favor of
not paid, nor can the holder thereof acquire any Daewoo was an obligation of Reliance and the performance of
right of action for said non-payment against the that obligation by Reliance was a condition for enforcement of
person who issued it. (Art. 569, Supra) the reciprocal obligation of Daewoo to ship the subject matter of
the contract – the foundry pig iron – to Reliance. But the contract
- The payor shall have a right to demand the proof of
itself between Reliance and Daewoo had already sprung into
the identity of the person in whose favor the letter legal existence and was enforceable.
of credit was issued. (Art. 569, Supra);
- The drawer of a letter of credit may annul it, Thus the failure of a buyer seasonably to furnish an agreed letter
informing the bearer and the person to whom it is of credit is a breach of the contract between buyer and seller.
addressed of said revocation. (Art. 570, Code of Where the buyer fails to open a letter of credit as stipulated, the
Commerce) seller or exporter is entitled to claim damages for such breach.
- The holder of a letter of credit shall pay the drawer Damages for failure to open a commercial credit may, in
appropriate cases, include the loss of profit which the seller
the amount received without delay. (Art. 571, Code
would reasonably have made had the transaction been carried
of Commerce). Should he not do so, an action out.
including attachment may be brought to recover
said amount with the legal interest and the current Once the credit is established, the seller ships the goods to the
exchange in the place where the payment was buyer and in the process secures the required shipping
made on the place where it was repaid. (Supra. documents or documents of title. To get paid, the seller executes
- If the holder of a letter of credit does not make use a draft and pays cash to the seller if it finds that the documents
thereof within the period agreed upon with the submitted by the seller conform with what the letter of credit
requires. The bank then obtains possession of the documents
drawer of the same, or, in the absence of a fixed
CREDIT TRANSACTIONS 23
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Morillo Notes
upon paying the seller. The transaction is completed when the
months, regardless of the terms and conditions of
buyer reimburses the issuing bank and acquires the documents the assignment or purchase.
entitling him to the goods. Under this arrangement, the seller
gets paid only if he delivers the documents of title over the In the case of assignment of credit or the buying of
goods, while the goods only after reimbursing the bank. installment papers, accounts receivable and other
evidence of indebtedness pertaining to appliances,
furniture, and office equipment, the purchase
3. FINANCIAL LEASE: discount, exclusive of interest charges, shall be
limited to eighteen (18%) per cent of the value at
maturity of the credit assigned or receivable
RA 5980, FINANCING COMPANY ACT:
purchased, based on a period of twelve months or
less, and to one and one-half (1 1/2%) per cent for
DEFINITION OF TERMS: each additional month or fraction thereof in excess
● Financing companies - are corporations, or of twelve months, regardless of the terms and
partnerships, except those regulated by the Central
conditions of the assignment or purchase.
Bank of the Philippines, the Insurance
Commissioner and the Cooperatives Administration
In case of factoring of accounts receivables or other
Office, which are primarily organized for the
evidences of indebtedness, the discounting rate
purpose of extending credit facilities to consumers
that can be charged, exclusive of interest and other
and to industrial, commercial, or agricultural charges, shall not exceed two per cent of the value
enterprises, either by discounting or factoring of the credit assigned or receivable purchased for
commercial papers on accounts receivable, or by every thirty days, regardless of the terms and
buying and selling contracts, leases, chattel
conditions of the factoring agreement.
mortgages, or other evidences of indebtedness, or
by leasing of motor vehicles, heavy equipment and
The Securities and Exchange Commission, in
industrial machinery, business and office machine
consultation with the financing companies, shall
and equipment, appliances and other movable
prescribe reasonable limitations on fees, service
property; and other charges which shall be uniform for all
● Credit - mean any loan, mortgage, deed of trust, financing companies, taking into consideration the
advance, or discount; any conditional sales nature of the transaction or service and the cost
contract, any contract to sell, or sale or contract of
thereof to the financing companies. (Sec. 5, RA
sale of property or service, either for present or
5980)
future delivery, under which, part or all the price is
payable subsequent to the making of such sale or
contract; any rental-purchase contract; any option, BELTRAN vs. PAIC FINANCE CORPORATION
demand, lien, pledge, or other claim against, or for GR nos. 83113 & 83256, May 19, 1992
the delivery of, property or money, any purchase, or
FACTS:
other acquisition of or any credit upon the security Sps. Beltran purchased from Service Equipment (SESCO) 1 unit
of, any obligation or claim arising out of the of Infra-Red Analyzer (SUN 1115) for P137,000. Upon delivery of
foregoing; and any transaction or series of the unit, Sps. Beltrans issued 2 checks as down payment.
transactions having a similar purpose or effect; and Further, SESCO agreed that the balance of the purchase price
● Purchase discount - refers to the difference would be placed under a financing arrangement in which SESCO
between the value of the receivable purchased or was to enter with PAIC Finance. When Sps. Beltran issued
credit assigned, and the net amount paid by the another check in favor of SESCO, the latter delivered SUN 1115
to PAIC Finance in which PAIC Finance executed a contract of
finance company for such purchase or assignment,
lease with Sps. Beltran (lessees) over SUN 1115, for a period of
exclusive of fees, service charges, interests and 36 months. When SUN 1115 malfunctioned, Sps. Beltrans
other charges incident to the extension of credit. returned the unit and discontinued paying the monthly rental
(Sec. 3, RA 5980) fees to PAIC Finance. After demanding payments from Sps.
Beltrans, PAIC Fiance filed a complaint for a sum of money
LIMITATION ON PURCHASE DISCOUNTS, FEES, against the spouse before the RTC.
SERVICE AND OTHER CHARGES:
- In the case of assignments of credit or the buying RTC held the transaction between PAIC Finance and Sps.
Beltrans as a contract of lease, and dismissed the complaint
of installment papers, accounts, receivables and
filed by PAIC Finance because the thing leased was totally unfair
other evidences of indebtedness by financing for the purpose of the lease due to PAIC Finance’s failure to
companies, the purchase discount, exclusive of repair the defect. On appeal, the CA held that the transaction
interest and other charges shall be limited to between the parties was not a lease but a contract of sale
fourteen (14%) percent of the value of the credit because the said leased contract is a scheme to simile the real
assigned or the value of the installment papers, agreement which is a financing arrangement for the Sps.
accounts receivable and other evidence of Beltrans to pay the unpaid price of SUN 1115 to PAIC Finance
indebtedness purchased based on a period of
ISSUE:
twelve (12) months or less, and to one and
W/N the transaction between PAIC Finance and Sps. Beltran is a
one-sixth (1 1/6%) percent of each additional lease contract or a contract of sale.
month or fraction thereof in excess of twelve
24 CREDIT TRANSACTIONS
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Morillo Notes
that relationship remains. The sale of the
RULING: equipment by the supplier thereof to the financial
The principal transactions were two-fold; (1) Sale of Sun 1115 lessor and the latter’s legal ownership thereof are
from SESCO to PAIC FInance/Sps. Beltrans; and (2) a financial intended to secure the repayment over time of the
arrangement permitting Sps. Beltrans to use SUN 1115 and pay purchase price of the equipment, plus financing
for it by installments for 36 months. SC hold that the transaction charges, through the payment of lease rentals; that
transaction between the PAIC Finance and Sps. Beltrans was a legal title is the upfront security held by the
Financial lease, valid and enforceable contract as between the 2
financial lessor, a security probably superior in
contracting parties. Financial leases cannot be casually
dismissed as “simulated contracts.” They are genuine contracts
some instances to a chattel mortgagee’s lien.
recognized under Sec. 3, RA 5980 (Financial Company Act). (Beltran vs. PAIC Finance, GR no. 83113, May 19,
1992)
“Financial lease is a contract involving payment over an
obligatory period of specified rental amount for the use of a LEGAL TITLE IS LODGED IN THE FINANCIAL LESSOR:
lessor’s property, sufficient in total to amortize the capital outlay - A financing lease may be seen to be a contract sui
of the lessor and to provide for the lessor’s borrowing costs and generis, possessing some but not necessarily all of
profits. x x x The lessee (not the lessor) exercises the choice of
the elements of an ordinary or civil law lease. Thus,
the asset and is normally responsible for maintenance, insurance
and such other expenses pertinent to the use, preservation and
legal title to the equipment leased is lodged in the
operation of the asset.” financial lessor. The financial lessee is entitled to
the possession and use of the leased equipment.
At the same time, the financial lessee is obligated
FINANCIAL LEASE IS NOT A SIMULATED CONTRACT: to make periodic payments denominated as lease
- In this jurisdiction, financial leases as a species of rentals, which enable the financial lessor to recover
secured financing are of fairly recent vintage. the purchase price of the equipment which had
Financial leases, while they are complex been paid to the supplier thereof. (Beltran vs. PAIC
arrangements, cannot be casually dismissed as Finance, GR no. 83113, May 19, 1992)
"simulated contracts." To the contrary, they are
genuine or legitimate contracts which have been
accorded statutory and administrative recognition. E. CRIMINAL VIOLATIONS:
Section 3 (a) of Republic Act No. 5980, as
amended by Presidential Decrees Nos. 1454 and CRIMINAL VIOLATIONS ON LOAN:
1793, known as the "Financing Company Act”. 1. Estafa:
(Beltran vs. PAIC Finance, GR no. 83113, May 19, GENERAL ELEMENTS OF ESTAFA:
1992) 1. The accused defrauded another (a) by abuse of
confidence, or (b) by means of deceit; and
PURPOSE OF FINANCIAL LEASE: 2. that damage or prejudice capable of pecuniary
- The basic purpose of a financial leasing transaction estimation is caused to the offended party or third
is to enable the prospective buyer of equipment. person.
who is unable to pay for such equipment in cash in
one lump sum, to lease such equipment in the Aside from the elements that We have discussed
meantime for his use, at a fixed rental sufficient to earlier, in the crime of estafa by postdating or issuing a bad
amortize at least 70% of the acquisition cost check, deceit and damage are essential elements of the
(including the expenses and a margin of profit for offense and have to be established with satisfactory proof to
the financial lessor) with the expectation that at the warrant conviction. (People vs. Dock Ong, GR no. 93849,
end of the lease period. the buyer/financial lessee December 20, 1991)
will be able to pay any remaining balance of the
purchase price. (Beltran vs. PAIC Finance, GR no. 2. Criminal liabilities under the Truth in Lending Act:
83113, May 19, 1992)
NATURE OF BUSINESS OF FINANCING COMPANY: 3. Arts. 315(3)(a), 317 & 318, Revised Penal Code:
- A financing company is not a buyer or seller of SWINDLING BY MINOR:
goods; it is not a trading company. Neither is it an - Any person who taking advantage of the
ordinary leasing company; it does not make its inexperience or emotions or feelings of a minor, to
profit by buying equipment and repeatedly leasing his detriment, shall induce him to assume any
out such equipment to different users thereof. But a obligation or to give any release or execute a
financial lease must be preceded by a purchase transfer of any property right in consideration of
and sale contract covering the equipment which some loan of money, credit or other personal
becomes the subject matter of the financial lease. property, whether the loan clearly appears in the
The financial lessor takes the role of the buyer of document or is shown in any other form, shall
the equipment leased. And so the formal or suffer the penalty of arresto mayor and a fine of a
documentary tie between the seller and the real sum ranging from 10 to 50 per cent of the value of
buyer of the equipment, i.e., the financial lessee, is the obligation contracted by the minor. (Art. 317,
apparently severed. In economic reality, however, RPC)
CREDIT TRANSACTIONS 25
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Morillo Notes
OTHER DECEIT: DEPOSITOR NEED NOT BE THE OWNER OF THE THING:
- Any person who, for profit or gain, shall interpret - The depositor need not be the owner of the thing
dreams, make forecasts, tell fortunes, or take deposited because a contract of deposit does not
advantage of the credulity of the public in any other transfer ownership of the thing deposited. The
similar manner, shall suffer the penalty. (Art. 318, depositary cannot demand that the depositor prove
RPC) his ownership of the thing deposited. (Art. 1984,
NCC)
4. Criminal Liabilities under RA 8484:
PRINCIPAL PURPOSE OF DEPOSIT: SAFEKEEPING:
1. The principal purpose of Deposit is the safekeeping
of the thing delivered. Thus, if safekeeping is only
II. DEPOSIT
an accessory or secondary obligation of the
(Arts. 1962-2009, NCC)
recipient of the thing, it cannot constitute as a
contract of deposit but some other contract like
lease, commodatum or agency. (Art. 1868, NCC)
- Example: Delivery of money to a person so
A. NATURE OF A DEPOSIT: he may make payment or invest the money
for the account of the giver, or of documents
DEFINITION OF A CONTRACT OF DEPOSIT: or records to a lawyer hired to represent a
- A deposit is constituted from the moment a person party to a suit cannot be regarded as Deposit
receives a thing belonging to another, with the but only as Agency because the principal
obligation of safely keeping it and of returning the end of the contract is representation of one
same. (Art. 1961, NCC) by another and not the custody of the thing.
- If the safekeeping of the thing delivered is not the 2. Where the balance of a commission account
principal purpose of the contract, there is no remains in the possession of the agent at the
deposit but some other contract. (Art. 1962, NCC) principal’s disposal, the same acquires at once the
character of deposit which the former must return
ESSENTIAL REQUISITES OF A CONTRACT OF or restore to the latter at any time it is demanded.
DEPOSIT: (US vs. Igpuara, 22 Phil. 619)
1. Consent of the Contracting Parties: 3. If the document which embodies the contract
- Manifested by the meeting of the offer and states that US Dollars in cash were received by the
acceptance upon the thing and the cause which bank for safekeeping this arrangement is a
are to constitute the contract. (Art. 1319, NCC) contract of deposit under Art. 1961, NCC. (BPI vs.
- Consent must be given by parties with capacity to IAC, 164 SCRA 630)
give consent.
2. Object/Subject Matter: CHARACTERISTICS OF A CONTRACT OF DEPOSIT:
- Gen. Rule: Only movable things may be the object 1. Real Contract:
of a deposit. (Art. 1966, NCC) - Contract of deposit is perfected by the delivery of
- Exception: In Judicial deposits, deposit may cover the subject matter of the contract. (Art. 1316, NCC)
movable and immovable property for the purpose - An agreement to constitute a deposit is binding,
of protecting the rights of parties to a suit. (Art. but the deposit itself is not perfected until the
2005-2006, NCC) delivery of the thing. (Art. 1963, NCC)
3. Cause or Consideration: 2. Unilateral or Bilateral Contract:
- deposit is essentially gratuitous except when the - It is generally a unilateral contract because it
depositary paid fees or engaged in the business of gives rise to the principal obligation (on the part of
storing goods. the depositary) to safely keep the thing and return
it.
- It becomes a bilateral contract only when the
Note: Delivery of the thing is also an essential requisite of the
contract. (Art. 1316, NCC). The delivery by the depositor of the
depositor has agreed to pay remuneration to the
thing to the depositary transfers possession of the thing in the depositary.
concept of a deposit. Without delivery, the depositary cannot 3. Nominate Contract:
comply with its obligation of safely keeping the thing and - It has been given a specific name by the Civil
returning it. Code. (Art. 1307, NCC)
4. Principal Contract:
- Its existence is not dependent on another contract.
PARTIES TO A CONTRACT OF DEPOSIT:
5. Informal Contract:
- The depositor and the depositary are the parties to
- No particular form is required for the contract. (Art.
the contract of deposit.
1969, NCC)
- There may be more than one depostor, such as
6. Gratuitous or Onerous Contract:
when the deposit is made by two or more persons
each of whom believes himself to be entitled to the
thing deposited. (Art. 1968, NCC)
26 CREDIT TRANSACTIONS
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Morillo Notes
- Gen. Rule: Deposit is generally a gratuitous safekeeping or mere custody consumption of the subject
contract because the depositor does not pay matter
compensation to the depository.
- Exception: When there is an agreement to the The depositor can demand the The lender must wait until the
contrary, or unless the depository is engaged in the return of the subject matter at expiration of the period
business of storing goods. (Art. 1965, NCC), or will granted to the debtor
involuntary deposits, Art. 1997, par. 2, NCC):
(1) When there is a contrary stipulation - provided Both movable and immovable Only money or other
it is not contrary to law, morals, good customs, property may be the object consumable thing is the object
public order or public policy. (Art. 1306, NCC)
(2) When the depository is engaged in the
business of storing goods - the purpose is for COMPANIA AGRICOLA DE ULTRAMAR vs. NEPOMUCENO
GR no. L-32778, november 14, 1930
compensation and not generosity.
(3) Involuntary deposits - Where the property is
FACTS:
saved from destruction during a calamity by The Compania Agricola de Ultramar filed a claim against one of
another person without the knowledge of the the insolvents Mariano Velasco & Co., claiming the sum of
owner, the latter is bound to pay the former for P10,000, with the agreed interest thereon at the rate of 6 per
just compensation. (Negotiorum Gestio). (Art, cent per annum from April 5, 1918, until its full payment was a
2168, NCC) deposit with said Mariano Velasco & Co. and asked the court to
declare it a preferred claim.
US vs. IGPUARA The assignee of the insolvency argued that the claim was
GR no. L-7593, March17, 1913 thereupon referred by the court to a Commissioner to receive the
evidence, and on September 23, 1929, the court rendered a
A deposit is constituted from the time a person receives a thing decision declaring that the alleged deposit was a preferred claim
belonging to another with the obligation of keeping and returning for the sum mentioned, with interest at 6 per cent per annum
it. (Art. 1758, Civil Code.) from April 5, 1918, until paid. From this decision the assignee
appealed.
It was held that failure to return the thing deposited was not
sufficient, but that it was necessary to prove that the depositary The evidence presented by the claimant Compania Agricola de
had appropriated it to himself or diverted the deposit to his own Ultramar consisted of a receipt in writing, and the testimony of
or another's benefit. He was accused or refusing to restore, and Jose Velasco who was manager of Mariano Velasco & Co. at the
it was held that the code does not penalize refusal to restore but time the note was executed. The receipt reads as follow:
denial of having received. So much for the crime of omission;
now with reference to the crime of commission, it was not held in Received from the "Compania Agricola de
that decision that appropriation or diversion of the thing Ultramar" the sum of ten thousand Philippine
deposited would not constitute the crime of estafa. pesos as a deposit at the interest of six per cent
annually, for the term of three months from date.
In the second of said decisions, the accused "kept none of the
proceeds of the sales. Those, such as they were, he turned over In witness thereof, I sign the present.
to the owner;" and there being no proof of the appropriation, the
agent could not be found guilty of the crime of estafa. MARIANO VELASCO & CO.
By (Sgd.) JOSE VELASCO
B. DIFFERENCE OF DEPOSIT FROM OTHER
CONTRACTS: Manager.
P10,000.00.
1. From Commodatum:
In his testimony, Jose Velasco stated that his signature on the
DEPOSIT COMMODATUM
receipt was authentic and that he received the said sum of
P10,000 from the appellee and deposited it with the bank in the
The principal purpose is The principal purpose is the current account of Mariano Velasco & Co.
safekeeping transfer of the use
RULING:
May or may not be gratuitous Always gratuitous There are three points of difference between a loan and an
irregular deposit. The first difference which he points out
In extrajudicial deposit, only Movable and immovable consists in the fact that in an irregular deposit the only benefit is
movable (corporeal) things property may be the object. that which accrues to the depositor, while in a loan the essential
may be the object cause for the transaction is the necessity of the borrower. The
contract in question does not fulfill this requirement of an
irregular deposit. It is very apparent that it was not for the sole
2. From Mutuum:
benefit of Rogers. It, like any other loan of money, was for the
DEPOSIT MUTUUM benefit of both parties. The benefit which Smith, Bell & Co.
received was the use of the money; the benefit which Rogers
The principal purpose is The principal purpose is the received was the interest on his money. In the letter in which
CREDIT TRANSACTIONS 27
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Morillo Notes
Smith, Bell & Co. on the 30th of June, 1888, notified the plaintiff customer of a safe-deposit company, the parties, since the
of the reduction of the interest, they said: "We call your attention relation is a contractual one, may by special contract define their
to this matter in order that you may if you think best employ your respective duties or provide for increasing or limiting the liability
money in some other place." of the deposit company, provided such contract is not in
violation of law or public policy. It must clearly appear that there
Nor does the contract in question fulfill the third requisite actually was such a special contract, however, in order to vary
indicated by Manresa, which is, that in an irregular deposit, the the ordinary obligations implied by law from the relationship of
depositor can demand the return of the article at any time, while the parties; liability of the deposit company will not be enlarged
a lender is bound by the provisions of the contract and cannot or restricted by words of doubtful meaning. The company, in
seek restitution until the time for payment, as provided in the renting safe-deposit boxes, cannot exempt itself from liability for
contract, has arisen. It is apparent from the terms of this loss of the contents by its own fraud or negligence or that, of its
documents that the plaintiff could not demand his money at any agents or servants, and if a provision of the contract may be
time. He was bound to give notice of his desire for its return and construed as an attempt to do so, it will be held ineffective for
then to wait for six months before he could insist upon payment. the purpose. Although it has been held that the lessor of a
safe-deposit box cannot limit its liability for loss of the contents
In the present case the transaction in question was clearly not thereof through its own negligence, the view has been taken that
for the sole benefit of the Compania Agricola de Ultramar; it was such a lessor may limit its liability to some extent by agreement
evidently for the benefit of both parties. Neither could the alleged or stipulation ."
depositor demand payment until the expiration of the term of
three months.
C. KINDS OF DEPOSITS:
3. From Lease (Safety Deposit Box):
CA AGRO-INDUSTRIAL DEVELOPMENT vs. CA KINDS OF DEPOSITS:
GR no. 90027, march 3, 1993 1. Judicial Deposit - takes place when an attachment or
seizure of property in litigation is ordered; or
The contractual relation between a commercial bank and another 2. Extrajudicial Deposit - which can be either:
party in the contract of rent of a safety deposit box is one of a. Voluntary - wherein the delivery is made by the
bailor and bailee.
will of the depositor or by two or more persons
The contract in the case at bar is a special kind of deposit. It each of whom believes himself entitled to the
cannot be characterized as an ordinary contract of lease under thing deposited; or
Article 1643 because the full and absolute possession and b. Necessary - made in compliance with a legal
control of the safety deposit box was not given to the joint obligation, or on occasion of any calamity, or by
renters – the petitioner and Pugaos. American Jurisprudence: travellers in hotels and inns or by travellers with
“The prevailing rule is that the relation between a bank renting common carries.
out safe-deposit boxes and its customer with respect to the
contents of the box is that of a bail or bailee, the bailment being
for hire and mutual benefit.” 1. SEQUESTRATION OR JUDICIAL DEPOSIT:
Our provisions on safety deposit boxes are governed by Section
72 (a) of the General Banking Act, and this primary function is MEANING OF SEQUESTRATION:
still found within the parameters of a contract of deposit like the - It is the deposit of a thing in litigation in the hands
receiving in custody of funds, documents and other valuable of a third person, during the settlement of the
objects for safekeeping. The renting out of the safety deposit issues between those who allege rights to the
boxes is not independent from, but related to or in conjunction
thing. This can either be (1) conventional or (2)
with, this principal function. Thus, depositary’s liability is
judicial. (Planiol & Ripert, Treatise on Civil Law (Vol.
governed by our civil code rules on obligation and contracts, and
thus the SBTC would be liable if, in performing its obligation, it is 2, Part 2)
found guilty of fraud, negligence, delay or contravention of the
tenor of the agreement. 1. Conventional Sequestration - the thing in litigation can
be deposited with a sequestrator with the consent of all
those who claim a right to it. If not, it is an ordinary
SIA vs. CA deposit and not a sequestration. (Planiol & Ripert, Supra)
GR no. 102970, May 13, 1993
2. Judicial Sequestration - when deposit is ordered by the
Court explicitly rejected the contention that a contract for the court. It takes place when an attachment or seizure of
use of a safety deposit box is a contract of lease governed by
property in litigation is ordered by a court. (Art. 2005,
Title VII, Book IV of the Civil Code. Nor did We fully subscribe to
the view that it is a contract of deposit to be strictly governed by NCC)
the Civil Code provision on deposit; it is, as We declared, a
special kind of deposit. The prevailing rule in American CUSTODIA LEGIS:
jurisprudence — that the relation between a bank renting out - A thing is in custodia legis, when it is shown that it
safe deposit boxes and its customer with respect to the contents has been and is subjected to the official custody of
of the box is that of a bailor and bailee, the bailment for hire and the judicial or executive officer in pursuance of his
mutual benefit — has been adopted in this jurisdiction. execution of a legal writ.
- Only when property is lawfully seized and taken by
"With respect to property deposited in a safe-deposit box by a
virtue of legal process and authority, and placed in
28 CREDIT TRANSACTIONS
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Morillo Notes
the possession of a public officer such as a sheriff,
2. EXTRAJUDICIAL DEPOSIT:
or an officer of the court empowered to hold it such
as a receiver, it is considered in the custody of the
law, and not otherwise. (Bagalihog vs. Fernandez, An extrajudicial deposit is either voluntary or
108 Phil. 560) necessary. (Art. 1967, NCC)
ESCROW ORDER:
a. Voluntary Deposit:
- An escrow order may be issued by a court in the
exercise of its intrinsic power to issue orders and
other ancillary writs and processes incidental or DEFINITION OF VOLUNTARY DEPOSIT:
reasonably necessary to exercise its main - A voluntary deposit is one wherein the delivery is
jurisdiction. made by the will of the depositor. (Art. 1968, NCC)
- The deposit of rental in escrow with a bank,
receiver, or administrator, in the name of the court, MODES OF VOLUNTARY DEPOSIT:
is only an incident in the main proceeding - placing 1. When the delivery is made by the will of the
property in litigation under judicial possession. depositor; or
- The term escrow applies to deposit with a third 2. When deposit is made by two or more persons
person of any written instrument importing a legal each of whom believes himself entitled to the thing
obligation. (Province of Bataan vs. Villafuerte, Jr., deposited with a third person, who shall deliver it in
367 SCRA 620) a proper case to the one to whom it belongs. (Art.
1968, NCC)
OBLIGATION OF DEPOSITORY OF SEQUESTRATED
PROPERTY: DIFFERENCE BETWEEN VOLUNTARY AND NECESSARY
- The depositary of sequestrated property is the DEPOSITS:
person appointed by the court. (Art. 2007, NCC)
- The depositary has the obligation to take care of Voluntary the depositor has complete freedom in
the property with the diligence of a good father of a Deposits choosing the depository
family. (Art. 2008, NCC)
- The depositary may not be relieved of his Necessary there is lack of free choice in the
responsibility until the litigation is ended or the Deposits depository
court so orders. (Art. 2007, NCC)
RULES ON INCAPACITATED PARTIES:
DIFFERENCE BETWEEN JUDICIAL AND a. If depositary is capacitated and depositor is incapacited:
EXTRAJUDICIAL DEPOSITS: - If a person having capacity to contract accepts a
JUDICIAL EXTRAJUDICIAL deposit made by one who is incapacitated, the
DEPOSITS: DEPOSITS: former shall be subject to all the obligations of a
depositary, and may be compelled to return the
Cause or By the will of the court By the will of the thing by the guardian, or administrator, of the
Origin parties, hence there is a person who made the deposit, or by the latter
contract himself if he should acquire capacity. (Art. 1970,
NCC)
Purpose To secure the right of a Custody and
party to recover in case safekeeping of the
b. If the depository is incapaciated and depositor is
of a favorable judgment thing capacitated:
- If the deposit has been made by a capacitated
Subject Matter Either movable or Only immovable person with another who is not, the depositor shall
immovable property property
only have an action to recover the thing deposited
while it is still in the possession of the depositary,
Remuneration Always remunerated May be compensated
(onerous) or not or to compel the latter to pay him the amount by
which he may have enriched or benefited himself
In whose In behalf of the person In behalf of the with the thing or its price. (Art. 1971, NCC)
behalf it is held who (by the judgment) depositor or third
- However, if a third person who acquired the thing
has a right person designated
acted in bad faith, the depositor may bring an
Termination When the controversy Generally, when the action against him for its recovery. (Art. 1971, NCC)
which gave rise to the depositor claims back c. If depositor became incapaciated after he made the
deposit has come to an the thing which is then deposit:
end (unless the court so returned to the
- If the depositor should lose his capacity to contract
orders) depositor.
after having made the deposit, the thing cannot be
Principles Governed by the Civil Civil Code only returned except to the persons who may have the
Applicable Code and Rules of administration of his property and rights. (Art. 1986,
Court
NCC)
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Morillo Notes
OBLIGATION OF THE DEPOSITARY: Obligation Not To Transfer Deposit to Third Persons:
1. Principal Obligations: - General Rule: The depositary is liable for the loss of the
a. To keep the thing deposited; thing deposited if:
b. To not use the thing; a. He transfers the deposit with a third person
c. To return the thing. without authority although there is no
2. In matters concerning Safekeeping of the thing: negligence on his part and the third person;
a. To keep the thing safely; b. He deposits the thing with a third person who
b. Not to deposit the thing with a third is manifestly careless or unfit although
person; authorized, even in the absence of negligence;
c. Not to change the way of the deposit; or
d. To collect interest on certificates when c. The thing is lost through the negligence of his
they become due and preserve the value employees whether the latter are manifestly
of securities; careless or not.
e. Not to commingle grain and other articles - Exception: The depositary is not responsible if:
of the same kind and quality if there is a 1. The loss of the thing deposited is without the
stipulation to the contrary; negligence of the third person with whom he
3. In matters concerning Returning of the thing was allowed to deposit the thing if such third
deposited: person is not “manifestly careless or unfit.”
a. To return the thing with all its products, 2. He authorized the deposit of the thing with
accessions, and accessories; another person and designated the third
b. To return the thing closed and sealed if person
delivered in such condition (except in 3. if the deposit to a third party is necessary for
certain instances). the preservation of the thing.
I. LEVEL OF DILIGENCE: III. LIABILITY FOR A FORTUITOUS EVENT:
Diligence Required: Liability of the Depositary for the Loss of the Thing Due
- The diligence required of the depositary is that to a Fortuitous Event:
agreed upon by the parties who may limit or 1. If such liability is stipulated;
expand the degree of diligence required.. Ordinarily, 2. If the depositary uses the thing without the
the depositary must exercise over the thing depositor’s permission;
deposited the same diligence as he would exercise 3. If the depositary delays the return of the thing
over his property. deposited and the thing is loss due to a fortuitous
- The liability of the depositary for the care and event;
delivery of the thing is governed by the rules on 4. If the depositary allows others to use it, even
obligations. (Art. 1163, NCC) though he himself may have been authorized to use
the same. (Art. 1979, NCC)
Applicable Rules:
a. Depositary is liable if the loss or deterioration of the IV. CHANGING THE WAY OF THE DEPOSIT:
thing occurs through his fault or negligence, even if
the thing was insured. (Art. 1170, 2207, NCC) The depositary may change the way of the deposit
b. The loss of the thing while in the possession of the if under the circumstances he may reasonably presume that
depositary ordinarily raises a presumption of fault the depositor would consent to the change if he knew of the
on his part. (Art. 1265, NCC) facts of the situation. (Art. 1974, NCC)
c. If the contract does not state the diligence
required, the diligence of a good father of a family However, before the depositary may make such
shall be observed. (Art. 1173, NCC) change, he shall notify the depositor thereof and wait for his
d. The required degree of care is greater if the deposit decision, unless delay would cause danger. (Art. 1974, NCC)
is for compensation than when it is gratuitous. This
is similar to the rules on agency and common V. RETURNING OF THE THING THAT WAS DEPOSITED:
carrier. (Arts. 1909 & 1733, NCC)
Time of Return:
II. RULES ON DEPOSIT WITH A THIRD PERSON: - General Rule: The thing deposited must be
returned to the depositor upon demand, even
though a specified period or time for such return
Article 1973. Unless there is a stipulation to the contrary, the
depositary cannot deposit the thing with a third person. If deposit may have been fixed. (Art. 1988, NCC)
with a third person is allowed, the depositary is liable for the loss - If deposit is for a compensation - the
if he deposited the thing with a person who is manifestly careless depositary is entitled to the compensation
or unfit. The depositary is responsible for the negligence of his corresponding to the entire period.
employees. (NCC) - Exceptions:
a. In commodatum - the bailor cannot
demand the return of the thing loaned till
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after the expiration of the period has been made by one of them in which case delivery
stipulated, or after accomplishment of the should be made to him.
use for which the commodatum has been 3. If there is a Stipulation to Return the thing to one of
constituted. (Art. 1946) the depositors - The depositary is bound to return it only
b. When the thing deposited is judicially to the person designated although he has made no
attached while in the depositary’s demand for its return.
possession, or should he have been - If A and B are solidary or the thing deposited is
notified of the opposition of a third person a car which does not admit of division, the
to the return or the removal of the thing depositor can return to either, absent a contrary
deposited. In these cases, the depositary stipulation.
must immediately inform the depositor of
the attachment or opposition. (Art. 1988, Depositor Does Not Need To Prove His Ownership:
NCC) - General Rule: The depositary cannot demand that the
depositor prove his ownership of the thing deposited.
Obligation to Return Products, Accessories, and (art. 1984, par. 1, NCC)
Accessions: - When Third persons Appears to be the Owner:
- The thing deposited shall be returned with all its a. If the depositary discovered that the thing has
products, accessories and accession. (Art. 1983, been stolen and who the true owner is - the
NCC) because the depositor is still the owner or depositary must advise the owner of the
represents the owner of the thing deposited. deposit. (Art. 1984, NCC)
- Should the deposit consist of money, the b. In spite of such information, if the owner does
depositary has no right to make use thereof. (Art. not claim the thing deposited within the period
1978, NCC) and, therefore, he is not liable to pay of 1 month - the depositary shall be relieved of
interest or else he shall be liable for estafa. (Art. all responsibility by returning the thing
1983, NCC) deposited to the depositor. (Art. 1984, NCC)
- If the thing is returned to the
Place of Return: depositor after 1 month, the true
● When a Place is Designated - the thing deposited owner of the tithing may still
shall be at the place designated because it is agreed recover it through other legal
upon by the parties. (Art. 1987, NCC) processes.
○ The expenses for the transportation shall c. If the depository has reasonable grounds to
be borne by the depositor. (Art. 1987, believe that the thing has not been lawfully
NCC) acquired by the depositor - the depositary may
● Absence of Stipulation - The thing shall be returned at return the thing deposited to the depositor. (Art.
the place with the thing deposited might be, even if it 1984, NCC)
should not be the same place where the deposit was
made, provided that there was no malice on the part of Right of Depositary to Return The Thing Deposited:
the depositary. (Art. 1987, NCC) 1. If the Deposit is Gratuitous - the depositary who may
have justifiable reasons (ie. necessity of his going
abroad) for not keeping the thing deposited may return
Example: If the deposit was made in the residence of A in
Manila and A transfers his residence to Pateros, Metro Manila it to the depositor even before the time designated. If
and he has to bring the thing deposited to his new place of the depositor should refuse to receive it, the
residence. depositary may secure its consignation from the court.
(Art. 1989, NCC)
Absent a contrary stipulation, the place of return is the 2. If the Deposit is For Valuable Consideration - the
residence of A in Pateros, metro Manila, provided there was depositary has no right to return the thing deposited
no malice on the part of A.
before the expiration of the tie designated even if he
should suffer inconvenience as a consequence. He is
When Two or More Depositors Exists: bound by the period and restitution before its
1. If the Thing Deposited is Divisible and Depositors are expiration breaches his obligation.
Not Solidary - Each one depositor can demand only his
share proportionate thereto. VI. SPECIFIC OBLIGATIONS FOR
- if A and B deposited 1500 and 300 canvans of CERTAIN KINDS OF DEPOSITS:
rice, respectively, A can demand only 150
canvans. A. Obligation to Collect Interest On Choses
2. If the Obligation is Solidary or the thing deposited is in Action deposited:
not divisible - Each one of the solidary depositors may
do whatever may be useful to the others but not anything General Rule: The depositary holding certificates, bonds,
which may be prejudicial to the katter and the depositary securities or instruments which earn interest shall be bound
may return the thing to any of the solidary depositors to collect the latter when it becomes due, and to take such
unless a demand (judicial or extrajudicial) for its return steps as may be necessary in order that the securities may
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preserve their value and the rights corresponding to the b. Pay for damages should the seal or lock be broken
according to law. (art. 1975, NCC) through his fault which is presumed unless
Exception: The above rule does not apply to contracts for provided otherwise. (Art. 1981, par. 2, NCC); and
the rent of safety deposit boxes. (Art. 1975, NCC) c. Keep the secret of the deposit when the seal or
- A contract for the rent of safety deposit boxes is lock is broken, with or without his fault. (Art. 1981,
not an ordinary contract of lease of things but a par. 3, NCC)
special kind of deposit. Hence, it is not to be
strictly governed by the provisions of on deposit. Exception: When it becomes necessary to open a locked
(CA Agro-Industrial Development vs. CA, 219 box or receptacle, the depositary is presumed authorized to
SCRA 426) do so, if the key has been delivered to him; or when the
- In operating a safety deposit box, the box and the instructions of the depositor as regards the deposit cannot
contents thereof are in manual possession of the be executed without opening the box or receptacle. (Art.
lessor. however, neither the lessor nor the renter 1982, NCC)
can be given access to the contents of the box
without the consent and cooperation of the other.
B. Obligation Not to Commingle Things Deposited OBLIGATION OF THE DEPOSITOR:
If Stipulated: 1. Obligation to pay expenses of preservation (Art.
1992, NCC);
General Rule: The depositary may commingle grain or other 2. Obligation to pay losses incurred due to character
articles of the same kind and quality. In which case, the of thing deposited (Art. 1993, NCC);
various depositors shall own or have a proportionate interest
in the mass. (Art. 1976, NCC) I. OBLIGATION TO PAY EXPENSES
Exception: The depositary shall not comminge things OF PRESERVATION:
deposited if it was stipulated, even if they are of the same If the Deposit is Gratuitous:
kind and quality. (Art. 1976, NCC) - The depositor is obliged to reimburse the
depositary for the expenses he may have incurred
for the preservation of the thing deposited. (Art.
Example: A received from B for deposit of 30 Cavans
1992, NCC)
rice; 20 canvas of rice from C; and 10 cavans of rice from
- As the law makes no distinction, the right to
D, the rice being of the same kind and quality.
reimbursement covers all expenses for
- Absent of any contrary stipulation, A can
preserversation whether ordinary or extraordinary.
commingle the 60 canvas and B,C,D would become
The law refers to necessary expenses. (Art. 546,
the co-owners of the entire 60 canvas in the
NCC)
proportion of ½, ⅓, and , respectively.
- Useful expenses and expenses for pure luxury or
- If the articles deposited which belong to the
mere pleasure are not covered. (Art. 546, 548,
different depositors are not of the same kind and
NCC)
quality, it id the duty of the depositary to keep them
- Depositary is not entitled to the reimbursement of
separate or at least identifiable as he must return to
useful expenses incurred without the consent of
each depositor the identical article delivered.
the depositor. (p.204 De Leon, Credit Transaction,
2019)
C. Obligation Not to make Use of Thing Deposited
Unless authorized: If the Deposit is for Compensation or a Valuable
Consideration:
The depositary cannot make use of the thing - The expenses of preservation are borne by the
deposited without the express permission of the depositor. depositary (unless contrary stipulated) because
Otherwise, he shall be liable for damages. they are deemed included in the compensation.
(p.204, De Leon, Credit Transaction, 2019)
However, when the preservation of the thing
deposited requires its use, it must be used but only for that II. OBLIGATION TO PAY LOSSES INCURRED
purpose. (Art. 1977, NCC) DUE TO CHARACTER OF
THE THING DEPOSITED:
D. Obligation Not to Open the Thing Deposited General Rule:
Unless necessary: - The depositor shall reimburse the depositary for
any loss arising from the character of the thing
General Rule: When the thing deposited is delivered closed deposited. (Art. 1993, NCC)
and sealed, the depositary has the obligation to:
a. Return the thing deposited when delivered closed Exceptions:
and sealed, in the same conditions. (Art. 1981, par. 1. At the time of the constitution of the deposit the
1, NCC) depositor was not aware of;
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2. The depositor was not expected to know the 2. Upon the death of either the depositor or the
dangerous character of the thing deposited at the depositary in case of a gratuitous deposit (Art.
time of the constitution of the deposit; 1995, NCC);
3. Unless the depositor notified the depositary of the 3. Condonation (Art. 1231, NCC);
same; or 4. Confusion or Merger (Art. 1231, NCC);
4. The depositary was aware of it without advice from 5. Novation (Art. 1231, NCC);
the depositor (Art. 1993, NCC) 6. Return of the thing deposited by the depositary
(Art. 1989, NCC);
III.
ALIENATION IN GOOD FAITH 7. Conversion of a deposit into another contract if the
BY DEPOSITARY’S HEIR: depositor allows the depositary to use the thing
If the Heir Acted in Good Faith: (Art. 1978, NCC);
- The depositor's heir who in good faith may have
sold the thing which he did not know was COMPENSATION DOES NOT EXTINGUISHED DEPOSIT:
deposited, shall only be bound to return the price - Compensation is not proper when one debt arises
he may have received or to assign his right of from a deposit or from the obligations of a
action against the buyer in case the price has not depositary or of a bailee in commodatum. (Art.
been paid to him. (Art. 1991, NCC) 1287, NCC)
- Note: the word “depositor’s” should be read as
“depositary’s”
b. Necessary Deposit:
If the Heir Acted in Bad Faith:
- The heir is liable for damages such as Estafa. TYPES OF NECESSARY DEPOSITS:
- The sale or appropriation of the thing deposited 1. Legal Deposit;
constitutes estafa (Art. 315, par. 1(b), RPC) - These are deposits made in compliance with a
legal obligation (Art. 1996(1), NCC).
IV. DEPOSITARY’S RIGHT
OF RETENTION: Examples:
Article 1994. The depositary may retain the thing in pledge until a. Judicial deposit of a thing the possession of which
the full payment of what may be due him by reason of the is being disputed in a litigation by 2 or more
deposit. (NCC) persons (Art. 538, NCC)
b. Deposit with a bank or public institution of public
bonds or instruments of credit payable to order or
Thing Given As Security: bearer given in usufruct when the usufructuary
- The thing retained serves as security for the does not give proper security for their conservation.
payment of what may be due to the depositary by (Art. 586, NCC);
reason of the deposit. (Art 1965, 1992-1992, NCC) c. Deposit of a thing pledged when the creditor uses
- The right granted under Art. 1994, NCC is similar to the same without the authority of the owner or
that granted to the agent. (Art. 1914, NCC) misuses it in any other way. (Art. 2104, NCC)
d. Deposits required in suits under the Rules of Court;
Meaning of the phrase “what may be due to him”: and
- The phrase will include the (1) expenses incurred e. Those constituted to guarantee contracts with the
under Art. 1992, NCC; (2) the indemnification for government.
any loss suffered under Art. 1993, NCC, and (3) any
agreed remuneration in case of onerous deposits. 2. Miserable Deposit or Deposit on the occasion of any
(p.205, De Leon, Credit Transactions, 2019) calamity (Art. 1996(2), NCC);
- The phrase also includes (4) expenses of - In this deposit, the possession of movable property
preservation (ie. repair, food, healing, and insurance passes from one person to another by accident or
premium); and (5) any transportation expenses that
fortuitously through force of circumstances and
the depositor must reimburse to the depositary which the law imposes on the recipient the
under Art. 1987, NCC. (p. 205, Supra) obligations of a bailee.
- The more immediate object is to save the property
Fruits and Price of the Thing Validly Sold: rather than its safekeeping
- The depositary may also retain the fruits and the
price if the thing was validly sold. However, the Example: If X saves Y’s TV set in a fire, X is supposed to
depositary cannot retain different thing delivered by be its depositary.
the depositor to the depositary. (p.204, Supra)
3. Deposits made by travellers in hotels or inns (Art.
1998, NCC);
EXTINGUISHMENT OF DEPOSIT: - The keepers of hotels or inns shall be responsible
1. Upon the loss or destruction of the thing deposited for them as depositaries, provided that notice was
(Art. 1995, NCC); given to them, or to their employees, of the effects
brought by the guests and that, on the part of the
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latter, they take the precautions which said
hotel-keepers or their substitutes advised relative Extent of liability of keepers of hotels and inns:
to the care and vigilance of their effects. (Art. 1998, - The liability of keepers of hotels and inns is not
NCC) limited to lost or damaged in the hotel rooms which
come under the term “baggage” such as clothes,
4. Deposits made by passengers with common carriers but it also includes those lost or damaged in hotel
(Art. 1754, NCC) annexes such as vehicles in the hotel’s garage.
- Common carriers are responsible for the loss, (Durban Corporation vs. Pioneer Insurance &
destruction or deterioration of the good unless Surety, GR no. 179419, January 12, 2011)
provided by law. (Art. 1733, NCC)
DURBAN APARTMENTS vs. PIONEER INSURANCE
GOVERNING LAWS: GR no. 179419, January 12, 2011
a. Legal Deposits
- This shall be governed by the provisions of the law FACTS:
establishing it. (Art. 1997, par. 1, NCC) Jeffrey See arrived and checked in at City Garden Hotel in
- In case of deficiency, it shall be governed by the Makati before midnight. Its parking attendant, Vicente
rules of voluntary deposits. (Supra) Justimbaste, got the key of Jeffrey’s vehicle to park it. About
b. Deposits made on the occasion of any calamity: 1am, Jeffrey received a phone call from City Garden Hotel
informing him that his vehicle was carnapped while it was
- This shall be regulated by the provisions parked unattended at the parking area of a bank along Makati.
concerning voluntary deposits and by Art. 2168. Jeffrey reported the incident to the Police and later on, Pioneer
(Art. 1997, par. 2, NCC) Insurance (by subrogation_ filed a Complaint for damages
- When during a fire, flood, storm or other calamity, against Durban Apartments and Vicente Justimbaste alleging
property is saved from destruction by another that the Vitara was lost was due to their negligence because it
person without the knowledge of the owner, the wa discovered during investigation that this was the second time
latter is bound to pay the former just that a similar carnapping incident happened in the valet parking
service and no necessary precautions was taken to prevent its
compensation. (Art. 2168, NCC)
repetition.
c. Deposits made by travellers in hotels or inns:
- This is governed by Arts. 1998 up to 2004, NCC; In its Answer, Durban Apartment and Vicente alleged that Jeffrey
Art. 102, RPC did not check in at its hotel because he was a guest who
d. Deposits made by passengers with common carriers: requested a parking attendant to park his vehicle at any available
- The provisions of Arts. 1733 to 1753 shall apply to parking space which was parked at the bank’s parking area. That
the passenger’s baggage which is not in his it was a special privilege to Jeffrey and that it does not include
personal custody or in that of his employees. As to responsibility for any losses or damages to motor vehicles and
its accessories in the parking area.
other baggage, the rules in Arts. 1998 and 2000 to
2003 concerning the responsibility of hotel-keepers
ISSUE:
sha;; be applicable. (Art. 1754, NCC) W/N Durban Apartments is liable for the loss of Jefreey’s vehicle.
EFFECT OF DEPOSITS IN HOTELS OR INNS: RULING:
YES, A deposit is constituted from the moment a person
Requisites for keepers of hotels on inns to be held receives a thing belonging to another, with the obligation of
responsible as depositories regarding the effects of their safety keeping it and returning the same. if the safekeeping of
the thing delivered is not the principal purpose of the contract,
guest:
there is no deposit but some other contract (Art. 1962, NCC).
1. Hotel or Inn Keepers have been informed about the The deposit of effects made by travelers in hotels or inns shall
effects brought by the guest; and also be regarded as necessary. The keepers of hotels or inns
2. The guest have taken the precautions prescribed shall be responsible for them as depositaries, provided that
regarding their safekeeping. notice was given to them, or to their employees, of the effects
brought by the guest and that, on the part of the latter, they take
Article 102, Revised Penal Code; Subsidiary civil liability of
innkeepers, tavernkeepers and proprietors of the precautions which said hotel-keepers of their substitutes
establishments. - In default of the persons criminally liable, advised relative to the care and vigilance of their effect. (Art.
innkeepers, tavernkeepers, and any other persons or 1998, NCC)
corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal From the facts found, the insured Jeffrey deposited his vehicle
ordinances or some general or special police regulation shall for safekeeping with Durban Apartments, through the latter’s
have been committed by them or their employees.
employee, Vicente. In turn, Vicente issued a claim stub to Jeffrey.
Innkeepers are also subsidiarily liable for the restitution of Thus, the contract of deposit was perfected from Jeffrey’s
goods taken by robbery or theft within their houses from delivery, when he handed over to Vicente the keys to his vehicle,
guests lodging therein, or for the payment of the value thereof, which Vicente received with the obligation of safely keeping and
provided that such guests shall have notified in advance the returning it. Ultimately, Durban Apartment is liable for the loss of
innkeeper himself, or the person representing him, of the jeffrey’s vehicle.
deposit of such goods within the inn; and shall furthermore
have followed the directions which such innkeeper or his
representative may have given them with respect to the care
and vigilance over such goods. No liability shall attach in case
of robbery with violence against or intimidation of persons
unless committed by the innkeeper's employees.
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HOTEL BUSINESS ARE IMBUED WITH PUBLIC valet counter. A parking ticket was issued as a receipt and the
INTEREST: valet attendant (Maridano) parked it. Few minutes later, Maridano
- Hotel business caters to the public, they are bound noticed that the car was not in the parking slot and its keys were
to provide not only lodging for their guests but also no longer in the box where the valets usually kept it. The car was
security to the persons and belongings of their never recovered and Filipino Merchants (De Asis’s Employer’s
guests. Insurance) filed an action for damages against Triple-V Food
- Arts. 2000-2002 deals with the hotel-keeper’s Services.
degree and care and responsibility as to the
In its Answer, Triple-V Food Services claimed that it and its
personal effects of their guests. There is much
employees wasted no time in ascertaining the loss of the car and
greater reason to apply the same if not greater in informing De Asis of the discovery of the loss. Moreover, in
degree of care and responsibility when the lives accepting the complimentary valet service, she received a
and personal safety of their guests are involved. parking ticket wherein it is provided that “Management and staff
(Makati Shangri-la vs. Harper, 679 SCRA 444) will not be responsible for any loss of or damage incurred on the
vehicle nor valuables contained therein.”, which constitutes a
HOTEL KEEPER’S LIABILITY: waiver of any right to claim indemnity for the loss of the car and
that she assumed the risk of such loss.
When Liable: When Not Liable:
ISSUE:
1. Hotel-keeper’s employees or a a. Loss or injury was caused by W/N Triple-V (Kamayan Restaurant) is exempt from liability from
stranger loss or injury to the force majeure; the loss of De Asis’ car.
personal property of their b. Loss or injury is caused by
guests, and they have theft or robbery by a stranger
RULING:
provided the proper notice and with the use of arms or
have taken proper irresistible force (Art. 2001,
NO, When De Asis entrusted the car to Triple-V's valet attendant
precautions. (Art. 2000, NCC); NCC) while eating at its restaurant, the former expected the car’s safe
and c. Loss is due to the acts of the return at the end of her meal. Thus, Triple-V was constituted as a
2. Loss is caused by the act of a guests, his family, servants, or depositary of the same ccar. Triple-V cannot evade liability by
thief or robber done without visitors (Art. 2002, NCC); arguing by arguing that neither a contract of deposit nor that of
the use of arms and irresistible d. Loss arises from the character
insurance, guaranty, or surety for the loss of the car was
force. (Art. 2001, NCC) of the things brought into the
constituted when De Asis availed of its free valet parking service.
hotel.
In a contract of deposit, a person receives an object belonging
to another with the obligation of safely keeping it and returning
EXEMPTION OR DIMINUTION OF LIABILITY. the same. A deposit may be constituted even without any
- Hotel-keeper cannot free himself from responsibility consideration. It is not necessary that the depositary receives a
fee before it becomes obligated to keep the item entrusted for
by posting notices to the effect that he is not liable
safekeeping and to return it later to the depositor.
for the articles by the guest. Any stipulation
between the hotel-keepers and the guest whereby The parking claim stub embodying the terms and conditions of
the responsibility of the former as set forth in the parking, including that of relieving Triple-V from any loss or
articles 1998 to 2001 is suppressed or diminished damage to the car, is essentially a contract of adhesion, drafted
shall be void. (Art. 2003, NCC) and prepared by Triple-V alone with not participation on the part
of its customers, like De Asis, who merely adheres to it. Although
HOTEL-KEEPER’S RIGHT TO RETAIN: contracts of adhesion are not void themselves but the Courts will
not hesitate to rule out blind adherence thereto if they prove to
- The hotel-keeper has a right to retain the things
be one-sided under attending facts and circumstances.
brought into the hotel by the guest, as a security
for credits on account of lodging, and supplies
usually furnished to hotel guests. (Art. 2004, NCC)
- This right is, in the nature of a pledge,
III. GUARANTY AND SURETY
given to hotel-keepers to compensate
(Arts. 2047-2084, NCC)
them for the liabilities imposed upon them
by law. The bailee in commodatum may
likewise ratin the thing loaned for
damages by reason of defects thereof.
(Arts. 1944, 1951, NCC) A. NATURE OF GUARANTY AND SURETY:
- The act of obtaining food or accommodation in a
hotel or inn without paying therefor constitutes DEFINITION OF GUARANTY:
estafa. (Art. 315 (2)(e), RPC) - By guaranty, a person (called the guarantor) binds
himself to the creditor to fulfill the obligation of the
TRIPLE-V FOOD SERVICES vs. FILIPINO MERCHANTS principal debtor in case the latter should fail to do
INSURANCE so. (Art. 2047, par. 1, NCC)
GR no. 160544, February 21, 2005 - A contract of guaranty cannot exist without a valid
obligation. Nevertheless, a guaranty may be
FACTS: constituted to guarantee the performance of a
Jo-Anne De Asis dined at Kamayan Restaurant, QC, and she voidable or an enforceable contract. It may also
availed the latter’s valet service. Jo-Anne entrusted the car key
guarantee a natural obligation. (Art. 2052, NCC)
of her vehicle (which was company issued) to the restaurant's
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SCOPE OR COVERAGE OF GUARANTRY: limitations. (Arts., 2053, 2058, 2063, and 2065,
1. The principal obligations of the debtor (Art. 2055, NCC)
NCC) 5. Formal Contract:
2. The accessory obligations pertaining to the principal - Generally it is not a Formal Contract for its validity.
obligation (Art. 2055, NCC); It is governed by the Statute of Frauds and must be
3. The obligations that arise as a matter of law from the in writing in order to effect its enforceability. (Arts.
guaranteed obligations, such as the payment of 1403(2)(b); 2055, NCC)
interest if delay occurs; 6. Gratuitous or Onerous Contract:
4. The obligation to pay judicial costs incurred after the - A guaranty is gratuitous unless there is stipulation
guarantor has been judicially required to pay. (Art. to the contrary. (Art. 2048, NCC)
2055, NCC)
GUARANTY MAY SECURE THE PERFORMANCE OF A
ESSENTIAL REQUISITES OF A CONTRACT OF VOIDABLE, UNENFORCEABLE, AND NATURAL
GUARANTY: OBLIGATIONS:
1. Consent of the Contracting Parties: (a) Voidable contract - because such contract is binding
- Manifested by meeting of the offer and acceptance unless it is annulled by a proper action in court. (Art.
upon the thing and the cause which are to 1390, NCC). The guarantor may set up against the
constitute the contract. (Art. 1319, NCC) creditor all defenses which pertain to the principal
- Consent must be given by parties with the capacity debtor and are inherent in the debt, but not those that
to give consent. are purely personal to the debtor. (Art. 2081, NCC)
2. Object or Subject Matter: (b) Unenforceable contract - Although such contract is
- The obligation guaranteed by it. without force but it is not void (Art. 1403, NCC).
3. Cause or Consideration of the Contract: Likewise, the guarantor may set up against the creditor
- The cause of the contract of guaranty is the same all defenses which pertain to the principal debtor and
cause which supports the obligation as to the are inherent in the debt, but not those that are purely
principal debtor. personal to the debtor. (Art. 2081, NCC)
- The consideration which supports the obligation as (c) Natural Obligation - the creditor may proceed against
to the principal debtor is sufficient consideration to the guarantor although he has no right of action against
support the obligation of a guarantor or surety. the principal debtor because the latter’s obligation is
(Phil. Guaranty vs. Dinio, 102 Phil. 991) not civilly enforceable (Art. 1423, NCC). When the
- A guaranty or surety agreement is regarded valid debtor himself offers a guaranty for his natural
despite the absence of any direct consideration obligation, he impliedly recognizes his liability,
received by the guarantor or surety either from the transforming the obligation from a natural into a civil
principal debtor or from the creditor. (RCBC vs. obligation.
Arro, 115 SCRA 777)
- The guarantor or surety becomes liable for the debt DEFINITION OF SURETYSHIP:
or duty of another although he possesses no direct - if a person binds himself solidarily with the principal
or personal interest over the obligation nor does he debtor, the contract is called a suretyship and it will
receive any benefit therefore. (Garcia, Jr. vs. CA, be governed by Sec. 4, Chap. 3, Title I of the Civil
191 SCRA 493) Code. (Art. 2047, par. 2, NCC)
- A contractual relation resulting from an agreement
CHARACTERISTICS OF CONTRACT OF GUARANTY: whereby one person (the surety) engages to be
1. Consensual Contract: answerable to a third person (the obligee or
- It is perfected by mere consent, subject to the creditor) for the debt, default, or miscarriage of
Statute of Frauds (Art. 1315, NCC) another known as the principal or obligor or debtor.
2. Unilateral or Bilateral Contract: (Garcia, Jr. vs. CA, 191 SCRA 493)
- Generally a unilateral contract because it give rise
to the duty of the guarantor in relation to the DIFFERENCE BETWEEN GUARANTY AND SURETY:
creditor. I may be entered into even without the GUARANTY SURETY
intervention of the principal debtor. (Art. 2050,
NCC) The insurer of the solvency of the The insurer of the debt, and he
- it is Bilateral if a compensation is paid to the debtor and thus binds himself to obligates himself to pay if the
guarantor. pay if the principal is unable to principal does not pay.
pay.
3. Nominate Contract:
- It has been given a specific name by the Civil Code An undertaking that the debtor An undertaking that the debt shall
(Art. 1307, NCC) shall pay. be paid
4. Accessory Contract:
- It is dependent for its existence upon the principal Liability depends upon an Assumes liability as a regular party
independent agreement to pay the to the undertaking
obligation guaranteed by it.
obligation if the primary debtor
- it likewise subsidiary and conditional contract fails to do so.
because it takes effect only when the principal
debtor fails in his obligation, subject to certain Engagement is a collateral Charged as an original promisor
36 CREDIT TRANSACTIONS
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Morillo Notes
undertaking and debtor from the beginning
3. Liability Arises Only if Principal Debtor is held Liable:
- A surety is made principally to benefit the
Secondarily liable (ie. he contracts Secondary only to a valid principal creditor-obligee. If the principal debtor and surety
to pay if, by the use of due obligation, his liability to the are held liable, their liability to pay the creditor
diligence, the debt cannot be paid creditor is direct, primary, and would be solidary but the nature of the surety’s
by the principal) absolute
undertaking is such that it does not incur liability
Not bound to take notice of the Generally held to know every unless the principal debtor is held liable.
non-performance of his principal default of his principal (Government of the Philippines vs. Tizon, 20 SCRA
1187)
Usually not discharged either by Often discharged by the mere - Absent collusion, the surety is bound by a
mere indulgence of the creditor or indulgence of the creditor of the
the principal or by the want (lack) principal, and usually not liable
judgment against the principal even though he was
of notice of the default of the unless notified of the default of the not a party to the proceedings. The nature of its
principal no matter how much he principal. undertaking makes it privy to all proceedings
may be injured. against its principal. (Fin-man General Assurance
vs. Salik, 188 SCRA 740)
Can claim release from obligation Cannot claim release from his
under Art. 2080, NCC obligation underArt. 2080, NCC - However, a surety not given notice when
the claim for damages against the
principal in the replevin bond was heard is
PROVISIONS OF GUARANTY AND SURETY: entitled (as a matter of procedural due
Applicable Provisions Not Applicable Provisions process) to be heard when the judgment
for damages against, the principal is
1. Art. 2066, NCC - Right to a. Art. 2058, NCC - Surety does sought to be enforced against the surety’s
indemnification not have the benefit of
replevin bond. (Malayan Insurance vs.
2. Art. 2067 - Right to excussion
Subrogation b. Art. 2065, NCC - Surety Salao, 90 SCRA 252)
3. Art. 2079, NCC - Extension of cannot invoke Art. 2063 - The creditor may sure (separately or together) the
time granted creditor to the (compromise between creditor principal debtor and surety. Where there are several
debtor and principal debtor befits the
guarantor but does not
sureties, the obligee may proceed against any of
prejudice him) them. A creditor’s right to proceed against the
c. Art. 2071, NCC surety exists independently of his right to proceed
d. Art. 2080, NCC - surety cannot against the principal. (Nassco vs. Torrento, 20
claim release from his
obligation. SCRA 427; art. 1216, NCC)
e. Art. 2081, NCC - A surety of a distressed corporation can
be sued separately to enforce his liability
notwithstanding an order by the SEC
NATURE OF SURETY'S UNDERTAKING:
declaring the corporation under a state of
1. Liability is Contractual and Accessory but direct:
suspension of payment. (Gateway
- Surety’s liability to the creditor or promisee of the
Electronic vs. Asianbank, 574 SCRA 698)
principal is said to be direct and absolute. He is
- Unless required, a demand or notice of default is
directly, primarily, and equally bound with the
not required to fix the surety’s liability. (Umali vs.
principal as original promisor although he
CA, 189 SCRA 529)
possesses no direct or personal interest over the
- An accommodation party is liable on the instrument
latter’s obligations nor does he receive any benefit
to a holder for value, notwithstanding that such
therefrom. (Garcia, Jr. vs. CA, 191 SCRA 493)
holder at the time of taking the instrument knew
- It is not for the obligee to see to it that the principal
such person to be only an accommodation party
debtor pays the debt or fulfill the contract, but for
since the relation between them is that of the
the surety to see to it that principal debtor pays or
principal and surety, the accommodation party
performs. The surety does not insure the solvency
being the surety. (People vs. Maniego, 148 SCRA
of the debtor but the debt itself. (Paramount
30)
Insurance vs. CA, 310 SCRA 377)
4. Surety is Not Entitled to Exhaustion:
2. Liability is Limited by Terms of contract:
- A surety is not entitled to the exhaustion of the
- Liability on a bond is contractual in nature and
properties of the principal debtor. because the
restricted to the obligation expressly assumed
surety assumes a solidary liability for fulfilling the
therein.
principal obligation. (Art. 2059(2), NCC; Towers
- A contract of surety is not presumed. The extent of
Assurance Corp. vs. Ororama Supermart, 80 SCRA
the surety’s liability is determined only by the
262)
clause of the contract of suretyship and the
- Sureties do not insure the solvency of the debtor,
conditions stated in the bond. It cannot be
but the debt itself. This responsibility places the
extended by implication beyond the terms of the
surety on the same level as that of the principal
contract. (PNB vs.CA,198 SCRA 767)
debtor. The effect is that the creditor is given the
- A surety is not released by a change in the contract
right to directly proceed against either principal
without the effect of making its obligation more
debtor or surety. (Gilat Satellite vs. UCPB General
onerous. (Intra-Strata Assurance vs. Republic, 557
Insurance, GR no. 189563, April 7, 2014)
SCRA 363)
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Morillo Notes
5. Undertaking is to Creditor, Not to Debtor: SURETY FOR FUTURE DEBTS:
- In contract of surety, the surety’s undertaking is - The parties can agree that the surety will be liable
that the principal shall fulfill his obligation and that for debts incurred after the execution of the
the surety shall be relieved of liability when the suretyship agreement. (Lim vs. security bank, 718
obligation secured is performed. SCRA 709)
- The principal cannot claim that there has
been a breach of the surety’s obligation
FINMAN GENERAL ASSURANCE CORP. vs. NLRC
when the surety fails or refuses to pay the GR no. 94588, July 2, 1992
debt for the principal’s account. Such
failure or refusal does not relieve the Petitioner alleges that the POEA has no authority under its own
principal of his obligation to pay the Rules and Regulations to implead the surety of any recruitment
premium on the bond furnished by the or placement agency in actions and/or complaints for
surety. suspension, cancellation or revocation of license or authority of
- The surety makes no covenant or agreement with the latter: that, on the contrary, the authority of the POEA is
limited to a determination of whether there is sufficient cause for
the principal it will fulfill the obligation guaranteed
an action upon the agency’s license; that POEA’s jurisdiction to
to benefit the principal. Such promise is not implied hear and decide money claims is confined to
by law either; and this is true even where under the employer-employee relations arising out of, or by virtue of, any
contract the creditor is given the right to sue the law or contract, and not money claims arising from
principal, or the latter and the surety at the same pre-employment or during recruitment conducted by the
time. (Arranz vs. Manila Fidelity & surety, 101 Phil. respondent agency; and finally, that if ever the surety bond may
272) be held liable for infractions or violations of the Labor Code and
6. Surety is Not Entitled to Notice of Principal's Default: POEA rules and regulations, it shall be answerable only for the
sanctions, penalties or fines imposed upon the agency but
- Demand on the surety is unnecessary before suing
definitely not for money claims of applicants not arising from
them. A surety is not entitled (as a matter of right) employment contracts.
to be given a separate notice of the principal’s
default. Because the creditor owes no duty of The petition for certiorari is without merit. The POEA
active diligence to take care of the interest of the Administrator did not exceed his jurisdiction nor act with grave
surety, his mere failure to voluntarily inform the abuse of discretion in impleading FINMAN as a co-respondent in
surety of the default of the principal cannot (L) RRB Case No. 88-03-474 and directing it to pay jointly and
discharge the surety. severally with Pan Pacific the claims of the private respondents,
Galiza and Bumanglag, on the basis of the surety bond it issued
- Surety is bound to take notice of the principal’s
for Pan Pacific. Said surety bond guarantees the faithful
default and to perform the obligation. He cannot compliance by Pan Pacific of all laws relating to the use of its
complain that the creditor has not notified him license and its recruitment activities. The bond is conditioned
absent a special agreement to that effect in the upon the true and faithful performance and observance by Pan
contract of suretyship. The surety may be sued Pacific of its duties and obligations as a licensed placement
separately or with the principal debtor. (Gilat agency (Art. 31, Title I, Book One, Labor Code of the Phils.).
Satellite Networks vs. UCPB General Insurance, Accordingly, the nature of FINMAN’s obligation under the
720 SCRA 726) suretyship agreement makes it privy to the proceedings against
its principal, Pan Pacific. FINMAN is bound by a judgment
7. Prior demand by the creditor upon principal not
against its principal even though it was not a party to the
required: proceedings, for a surety is considered in law as being the same
- A creditor’s right to proceed against the surety party as the debtor in relation to whatever is adjudged touching
alone exists independently of his right to proceed the obligation of the latter, and their liabilities are interwoven as
against the principal where both principal and to be inseparable.
surety are equally bound. (Art. 1216, NCC)
- As soon as the principal is in default, the surety is
also in default. The proper remedy of the surety is GOVERNMENT OF THE PHILIPPINES vs. TIZON
to pay the debt and pursue the principal for GR no. L-22108, August 30, 1967
reimbursement. (Supra)
Solution of the question posed in this appeal hinges on the
8. Surety is not exonerated by neglect of creditor to sue
nature of the obligation assumed by the Surety under its bond.
principal: As Article 1222 of the new Civil Code provides: “A solidary
- Where a creditor refrains from proceeding against debtor may, in actions filed by the creditor, avail himself of all
the principal, the surety is not exonerated. Mere defenses which are derived from the nature of the obligation and
want of diligence or forbearance does not affect of those which are personal to him, or pertain to his own share.
the creditor’s rights vis-a-vis the surety, unless the With respect to those which personally belong to the others, he
surety requires him by appropriate notice to sue on may avail himself thereof only as regards that part of the debt for
the obligation. which the latter are responsible.”
- The neglect of the creditor to sue the principal
Pertinent parts of the surety bond provides: “That we, Tizon
when the debt falls due does not discharge the Engineering, as principal, and the Capital Insurance & Surety
surety, even if such delay continues until the Co., Inc., as surety, . . . are held and firmly bound unto the
principal becomes insolvent. The consequences of Republic of the Philippines, in the penal sum of P10,000.00, for
the delay are immaterial. the payment of which sum, well and truly to be made, we bind
ourselves, Jointly and Severally, by these presents.
38 CREDIT TRANSACTIONS
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Morillo Notes
debtor does not become a solidary co-debtor to all intents and
Whereas, the principal agrees to comply with all the terms and purposes. There is a difference between a solidary co-debtor
conditions of the proposal with the Bureau of Supply; and a fiador in solidum (surety). The latter, outside of the liability
he assumes to pay the debt before the property of the principal
NOW THEREFORE, the conditions of this obligations are such debtor has been exhausted, retains all the other rights, actions
that if the above bounden principal shall, in case he becomes the and benefits which pertain to him by reason of the fiansa; while a
successful bidder in any of the proposal of the Bureau of Supply solidary co-debtor has no other rights than those bestowed
— (a) accept a contract with the Republic of the Philippines, upon him.
represented by the Bureau of Supply; (b) faithfully and truly
performs in good faith the contract; (c) to pay to the Republic of Because the promissory note involved in this case expressly
the Philippines, in case of delay and/or default in the execution states that the three signatories therein are jointly and severally
of the contract, any loss or damages which the latter may suffer liable, any one, some or all of them may be proceeded against
by reason thereof, not to exceed the sum of P10,000.00, for the entire obligation. The choice is left to the solidary creditor
Philippine currency, then this obligation shall be void, otherwise (PBC) to determine against whom he will enforce collection.
it shall remain in full force and effect.” Consequently, the dismissal of the case against Pontanosas may
not be deemed as having discharged Inciong from liability as
It thus appears that the Surety bound itself, jointly and severally, well. As regards Naybe, suffice it to say that the court never
with the principal obligor to pay the Republic of the Philippines acquired jurisdiction over him. Inciong, therefore, may only have
any loss or damage the latter may suffer, not exceeding recourse against his co-makers, as provided by law.
P10,000.00, "in case of delay and/or default in the execution of
the contract."
ESCANO vs. ORTIGAS
However, although the defendants bound themselves in solidum, GR no. 151953, June 29, 2007
the liability of the Surety under its bond would arise only if its
co-defendant, the principal obligor, should fail to comply with the The Undertaking does not contain any express stipulation that
contract. the liability of the Surety is "consequent upon the the petitioners agreed "to bind themselves jointly and severally"
liability" of Tizon, or "so dependent on that of the principal in their obligations to the Ortigas group, or any such terms to
debtor" that the Surety "is considered in law as being the same that effect. Hence, such obligation established in the
party as the debtor in relation to whatever is adjudged, touching Undertaking is presumed only to be joint.
the obligation of the latter"; or the liabilities of the two
defendants herein "are so interwoven and dependent as to be A surety agreement the surety undertakes to be bound solidarily
inseparable." Changing the expression, if the defendants are with the principal debtor. Thus, a surety agreement is an ancillary
held liable, their liability to pay the plaintiff would be solidary, but contract as it presupposes the existence of a principal contract.
the nature of the Surety's undertaking is such that it does not It appears that Ortigas’s argument rests solely on the solidary
incur liability unless and until the principal debtor is held liable. nature of the obligation of the surety under Article 2047. In
tandem with the nomenclature "SURETIES" accorded to
petitioners and Matti in the Undertaking, however, this argument
INCIONG vs. CA can only be viable if the obligations established in the
GR no. 96405, June 26, 1996 Undertaking do partake of the nature of a suretyship as defined
under Article 2047 in the first place. That clearly is not the case
FACTS: here, notwithstanding the use of the nomenclature "SURETIES"
Rene Naybe took out a loan from Philippine Bank of in the Undertaking.
Communications (PBC) in the amount of P50k. For that he
executed a promissory note in the same amount. Naybe was A suretyship requires a principal debtor to whom the surety is
able to convince Baldomero Inciong, Jr. and Gregorio solidarily bound by way of an ancillary obligation of segregate
Pantanosas to co-sign with him as co-makers. The promissory identity from the obligation between the principal debtor and the
note went due and it was left unpaid. PBC demanded payment creditor. The suretyship does bind the surety to the creditor,
from the three but still no payment was made. PBC then sue the inasmuch as the latter is vested with the right to proceed against
three but PBC later released Pantanosas from its obligations. the former to collect the credit in lieu of proceeding against the
Naybe left for Saudi Arabia hence can’t be issued summons and principal debtor for the same obligation. At the same time, there
the complaint against him was subsequently dropped. Inciong is also a legal tie created between the surety and the principal
was left to face the suit. He argued that that since the complaint debtor to which the creditor is not privy or party to. The moment
against Naybe was dropped, and that Pantanosas was released the surety fully answers to the creditor for the obligation created
from his obligations, he too should have been released by the principal debtor, such obligation is extinguished. At the
same time, the surety may seek reimbursement from the
ISSUE: principal debtor for the amount paid, for the surety does in fact
W/N Inciong should be held liable. "become subrogated to all the rights and remedies of the
creditor.”
RULING:
YES, Inciong is considering himself as a guarantor in the Note that Article 2047 itself specifically calls for the application
promissory note. And he was basing his argument based on of the provisions on joint and solidary obligations to suretyship
Article 2080 of the Civil Code which provides that guarantors are contracts. Article 1217 of the Civil Code thus comes into play,
released from their obligations if the creditors shall release their recognizing the right of reimbursement from a co-debtor (the
debtors. It is to be noted however that Inciong did not sign the principal debtor, in case of suretyship) in favor of the one who
promissory note as a guarantor. He signed it as a solidary paid (i.e., the surety). However, a significant distinction still lies
co-maker. between a joint and several debtor, on one hand, and a surety on
the other. Solidarity signifies that the creditor can compel any
A guarantor who binds himself in solidum with the principal one of the joint and several debtors or the surety alone to answer
CREDIT TRANSACTIONS 39
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Morillo Notes
for the entirety of the principal debt. The difference lies in the DINO vs. CA
respective faculties of the joint and several debtor and the surety GR no. 89775, November 26, 1992
to seek reimbursement for the sums they paid out to the creditor.
FACTS:
In ruling for METROBANK, CA held that the Continuing
TYPES OF GUARANTY: Suretyship Agreements separately executed by the petitioners in
1977 were intended to guarantee payment of Uy Tiam's
In its broad (a) Personal guaranty - guaranty in the
outstanding as well as future obligations; each suretyship
sense strict sense, here, the guarantee is the
arrangement was intended to remain in full force and effect until
credit given given by the person who
METROBANK would have been notified of its revocation. Since
guarantees the fulfillment of the
no such notice was given by Dino & Uy, the suretyships are
principal obligation
deemed outstanding and hence, cover even the 1979 letter of
(b) Real guaranty - the guaranty is the
credit issued by METROBANK in favor of Uy Tiam.
property (movable or immovable). If
movable, the guaranty is in the form of
Dino & Uy filed a motion to reconsider the foregoing Decision.
real mortgage or antichresis; If movable,
They questioned the CA's construction of the suretyship
it is in the form of a pledge or chattel
agreements and its ruling with respect to the extent of their
mortgage.
liability thereunder. They argued that even if the agreements were
in full force and effect when METROBANK granted Uy Tiam's
Security interest created under the
application for a letter of credit in 1979, the CA nonetheless
Personal Property Security Act as a
seriously erred in holding them liable for an amount over and
form of a real guaranty.
above their respective face values.
As to its (a) Conventional - constituted by
ISSUE:
origin agreement of the parties.
W/N Dino & Uy may be held liable as sureties for the obligation
(b) Legal - imposed by law
contracted by Uy Tiam with METROBANK on 30 May 1979
(c) Judicial - required by a court to
under and by virtue of the Continuing Suretyship Agreements
guarantee the eventual right of a party
signed on 25 February 1977.
in a case.
RULING:
As to (a) Gratuitous - the guarantor receives no YES, The stipulations unequivocally reveal that the suretyship
consideration compensation or remuneration for agreement in the case at bar are continuing in nature. Dino & Uy
acting as such; or do not deny this; in fact, they candidly admitted it. Neither have
(b) Onerous - the guarantor receives they denied the fact that they had not revoked the suretyship
valuable consideration for his agreements. Dino & Uy maintain, however, that their Continuing
guaranty. Suretyship Agreements cannot be made applicable to the 1979
obligation because the latter was not yet in existence when the
As to the (a) Single - constituted solely to agreements were executed in 1977; under Article 2052 of the
person guarantee or secure performance by Civil Code, a guaranty "cannot exist without a valid obligation."
guaranteed the debtor of the principal obligation We cannot agree. First of all, the succeeding article provides
(b) Double (Sub-guaranty) - constituted to that "a guaranty may also be given as security for future debts,
secure the fulfillment by the guarantor the amount of which is not yet known." Secondly, Article 2052
of prior guaranty. speaks about a valid obligation, as distinguished from a void
obligation, and not an existing or current obligation. This
As to its (a) Definite (Limited) - limited to the distinction is made clearer in the second paragraph of Article
scope and principal obligation only, or to a 2052 which reads: “Nevertheless, a guaranty may be constituted
extent specific portion thereof; or to guarantee the performance of a voidable or an unenforceable
(b) Indefinite (Unlimited) - includes not contract. It may also guarantee a natural obligation.”
only the principal obligation but also
all its accessories, including judicial
costs.
FORTUNE MOTORS CORP vs. CA
GR no. 112191, February 7, 1997
GUARANTY OF FUTURE DEBTS:
FACTS:
- A guaranty may also be given as security for future Petitioners argue that future debts which can be guaranteed
debts, the amount of which is not yet known; there under Article 2053 of the Civil Code refer only to "debts existing
can be no claim against the guarantor until the debt at the time of the constitution of the guaranty but the amount
is liquidated (Art. 2053, NCC). thereof is unknown," and that a guaranty being an accessory
- Under Art. 2053, NCC, it is not limited to a single obligation cannot exist without a principal obligation. Petitioners
transaction but contemplates a future course of claim that the surety undertakings cannot be made to cover the
dealings, covering a series of transactions generally Financing Agreement executed by Fortune, Filinvest and CARCO
since the latter contract was not yet in existence when said
for an indefinite time or until revoked. It covers all
surety contracts were entered into.
transactions, including those arising in the future,
which are within the description or contemplation RULING:
of the contract of guaranty, until the expiration or The facts of the instant case bring us to no other conclusion than
termination thereof. (Dino vs. CA, 216 SCRA 9) that the surety undertakings executed by Chua and Rodrigueza
were continuing guaranties or suretyships covering all future
40 CREDIT TRANSACTIONS
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Morillo Notes
obligations of Fortune Motors (Phils.) Corporation with Filinvest
HOW A GUARANTY IS CONSTRUED?
Credit Corporation. This is evident from the written contract itself - A guaranty is not presumed. It must be express
which contained the words "absolutely, unconditionally and and cannot extend to more than what is stipulated
solidarily guarantee(d)" to Respondent Filinvest and its affiliated (Art. 2055, NCC)
and subsidiary companies the "full, faithful and prompt - Gen. Rule: If there is any doubt on the terms and
performance, payment and discharge of any and all obligations conditions of the guaranty or surety agreements,
and agreements" of Petitioner Fortune "under or with respect to the doubt should be resolved in favor of the
any and all such contracts and any and all other agreements
guarantor or surety (PNB vs. CA, 198 SCRA 767)
(whether by way of guaranty or otherwise)" of the latter with
- Exception: Compensated Sureties. If there is any
Filinvest and its affiliated and subsidiary companies "now in
force or hereafter made." Moreover, Petitioner Rodrigueza and ambiguity in the surety bond, it should be
Joseph Chua knew exactly where they stood at the time they interpreted against the surety company that
executed their respective surety undertakings in favor of Fortune. prepared it.
As stated in the petition: "Before the execution of the new
agreement, Edgar L. Rodrigueza and Joseph Chua were required
to sign blank surety agreements, without informing them how PNB vs. CA
much amount they would be liable as sureties. However, GR no. 33174, July 4, 1991
because of the desire of petitioners, Chua and Rodrigueza to
have the cars delivered to petitioner, Fortune, they signed the FACTS:
blank promissory notes." It is obvious from the foregoing that Estanislao Depusoy, doing business under the name of E.E.
Rodrigueza and Chua were fully aware of the business of Depusoy Construction, and the Republic of the Philippines
Fortune, an automobile dealer; Chua being the corporate entered into a building contract for the construction of the GSIS
president of Fortune and even a signatory to the Financial building at Arroceros Street, Manila, Depusoy to furnish all
Agreement with Filinvest. Both sureties knew the purpose of the materials, labor, plans, and supplies needed in the construction.
surety undertaking which they signed and they must have had an Depusoy applied for credit accommodation with the plaintiff.
estimate of the amount involved at that time. Their undertaking This was approved by the Board of Directors in various
by way of the surety contracts was critical in enabling Fortune to resolutions subject to the conditions that he would assign all
acquire credit facility from Filinvest and to procure cars for payments to be received from the Bureau of Public Works of the
resale, which was the business of Fortune. Respondent Filinvest, GSIS to the bank, furnish a surety bond, and the surety to
for its part, relied on the surety contracts when it agreed to be deposit P10,000.00 to the plaintiff. Luzon thereafter executed
the assignee of CARCO with respect to the liabilities of Fortune two surety bonds, one for the sum of P40,000.00 (Exhibit D) and
with CARCO. After benefiting therefrom, petitioners cannot now the other for P60,000.00, (Exhibit E) which states that: ‘That we,
impugn the validity of the surety contracts on the ground that E. E. DEPUSOY CONSTRUCTION CO., of 32 2nd Street, San
there was no preexisting obligation to be guaranteed at the time Beda Subdv., Manila, as principal and LUZON SURETY
said surety contracts were executed. They cannot resort to COMPANY, INC., a corporation duly organized and existing
equity to escape liability for their voluntary acts, and to heap under and by virtue of the laws of the Philippines, as surety, are
injustice to Filinvest, which relied on their signed word. held and firmly bound unto the PHILIPPINE NATIONAL BANK of
Manila in the sum of P60,000.00, Philippine Currency, for the
payment of which sum, well and truly to be made, we bind
GUARANTY OF CONDITIONAL OBLIGATIONS: ourselves, our heirs, executors, administrators, successors, and
- A conditional obligation may also be secured. (Art. assigns, jointly and severally, firmly by these presents:
2053, NCC)
The liability of LUZON SURETY COMPANY, INC., under this
- If the principal obligation is subject to a suspensive bond will expire January 31, 1957. Furthermore, it is hereby
condition, the guarantor is liable only after fulfilling agreed and understood that the LUZON SURETY COMPANY,
the condition. if it is subject to a resolutory INC. will not be liable for any claim not discovered and presented
condition, the happening of the condition to the company within THREE (3) months from the expiration of
extinguishes both the principal obligation and the this bond and that the obligee hereby waives his right to file any
guaranty. court action against the surety after the termination of the period
of the three months above mentioned.”
GUARANTOR’S LIABILITY CANNOT EXCEED PRINCIPAL
ISSUE:
OBLIGATION: W/N The lower court erred in not holding that the bonds Exhs.
- The guarantor cannot bind himself for more than "D" and "E" and letters of extension were compensated surety
the principal debtor and even if he does his liability agreements executed as required by PNB board resolution for
shall be reduced to the limits of that of the debtor. the purpose of securing the payment to the PNB of the amount
However, a guarantor may bind himself for less advanced by the said bank to the appellee Estanislao Depusoy
than that of the principal. (Art. 2054, NCC) to finance the construction of the GSIS building subject to the
- Creditors suing on a suretyship bond may recover construction contract; in not finding that Exhs. "F" and "I" are
indubitable proofs that defendant-appellee Luzon Surety
from the surety as part of their damages, interest
Company, Inc., is liable for the repayment of the P100,000.00
(legal rate), judicial costs, and attorney’s fees when loan and the additional accommodations granted to the
appropriate, even without stipulation and even if defendant-appellee Estanislao Depusoy; and in not finding and
the surety would become liable to pay more than holding that Exhs. "D" and "E" in the sense that they have been
the total amount stipulated in the bond. (See Art. extended so as to secure new accommodations aside from the
2055, par. 2, NCC; Dino vs. CA, 216 SCRA 92) original obligation mentioned in said bonds.
RULING:
We are in full accord with the conclusion of the trial court and the
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SELECTION OF GUARANTOR:
Court of Appeals that the bonds executed by private respondent
LSCI were to guarantee the faithful performance of Depusoy of 1. Specified person stipulated as guarantor:
his obligation under the Deed of Assignment and not to - The creditor required and stipulated that a
guarantee the payment of the loans or the debt of Depusoy to specified person should be a guarantor, the
petitioner to the extent of P100,000.00. The language of the substitution of guarantor may not be demanded
bonds is clear, explicit and unequivocal. It leaves no room for because the selection of the guarantor is a term or
interpretation. Article 1370 of the Civil Code provides: “If the a condition of the agreement and, as a party, the
terms of a contract are clear and leave no doubt upon the
creditor is bound thereby. (Art. 1159, 1306, 2057,
intention of the contracting parties, the literal meaning of its
stipulations shall control.”
NCC)
2. Guarantor selected by the principal debtor:
Besides, even if there had been any doubt on the terms and - The principal debtor answers for the integrity,
conditions of the surety agreement, the doubt should be capacity, and solvency of the guarantor because
resolved in favor of the surety. As concretely put in Article 2055 the guarantor must possess the qualifications
of the Civil Code, "A guaranty is not presumed, it must be prescribed not only at the moment the guaranty is
expressed and cannot extend to more than what is stipulated given but also thereafter, until the extinguishment of
therein."
the debt.
3. Guarantor personally designated by the creditor:
CONTINUING GUARANTY: - The creditor considers the guarantor to have the
- A guaranty shall be construed as continuing when qualifications for the purpose, and the
by the terms thereof it is evident that the object is responsibility for the selection should fall upon him
to give a standing credit to the principal debtor to and not on the debtor.
be used from time to time either indefinitely or until
a certain period, especially if the right to recall the ESTATE OF HEMADY vs. LUZON SURETY CO.
guaranty is expressly reserved. (Dino vs. CA, 216 GR no. L-8437, November 28, 1956
SCRA 91)
- Where the contract states that the guaranty is to “ART. 2057. — If the guarantor should be convicted in first
secure advances to be made “from time to time,” instance of a crime involving dishonesty or should become
or obligations “now in force or hereafter made,” it insolvent, the creditor may demand another who has all the
qualifications required in the preceding article. The case is
will be construed to be a continuing one. In other
excepted where the creditor has required and stipulated that a
jurisdictions, it has been held that using particular specified person should be guarantor.”
words and expressions such as payment of “any
debt,” “any indebtedness,” or “any sum,” or the From this article it should be immediately apparent that the
guarantee of “any transaction,” or “money to be supervening dishonesty of the guarantor (that is to say, the
furnished the principal debtor “at any time,” or “on disappearance of his integrity after he has become bound) does
such time” that the principal debtor may require, not terminate the contract but merely entitles the creditor to
have been construed to indicate a continuing demand a replacement of the guarantor. But the step remains
optional in the creditor: it is his right, not his duty; he may waive
guaranty. (Dino vs. CA, Supra)
it if he chooses, and hold the guarantor to his bargain. Hence
Article 2057 of the present Civil Code is incompatible with the
QUALIFICATIONS OF A GUARANTOR: trial court’s stand that the requirement of integrity in the
1. The guarantor possesses integrity; guarantor or surety makes the latter’s undertaking strictly
2. He has capacity to bind himself; and personal, so linked to his individuality that the guaranty
3. He has sufficient property to answer for the automatically terminates upon his death.
obligation which he guarantees. (Art. 2056, NCC)
The contracts of suretyship entered into by K. H. Hemady in
favor of Luzon Surety Co. not being rendered intransmissible due
EFFECT OF SUBSEQUENT LOSS OF REQUIRED
to the nature of the undertaking, nor by the stipulations of the
QUALIFICATIONS: contracts themselves, nor by provision of law, his eventual
- If the guarantor should be convicted of a crime liability thereunder necessarily passed upon his death to his
involving dishonesty or he becomes insolvent, heirs. The contracts, therefore, give rise to contingent claims
General Rule, the creditor may demand another provable against his estate under section 5, Rule 87.
guarantor with the proper qualifications under Art.
2056, NCC. Exception: If the creditor has required “The most common example of the contigent claim is that which
and stipulated that a specified person should be arises when a person is bound as surety or guarantor for a
principal who is insolvent or dead. Under the ordinary contract of
the guarantor. (Art. 2057, NCC)
suretyship the surety has no claim whatever against his principal
- Note: Art. 2057, NCC requires conviction in the first until he himself pays something by way of satisfaction upon the
instance of a crime involving dishonesty, However, obligation which is secured. When he does this, there instantly
a judicial declaration of insolvency is unnecessary arises in favor of the surety the right to compel the principal to
for the creditor to have the right to demand another exonerate the surety. But until the surety has contributed
guarantor. something to the payment of the debt, or has performed the
secured obligation in whole or in part, he has no right of action
against anybody — no claim that could be reduced to judgment.
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MARRIED WOMAN AS GUARANTOR (LIABILITY OF THE itself be deemed an obligation for the benefit of the conjugal
CONJUGAL FUND): partnership. It is for the benefit of the principal debtor and not for
- A married woman may guarantee an obligation the surety or his family.
without the husband’s consent, but shall not
thereby bind the conjugal partnership, except in In the case at bar, the principal contract, the credit line
cases provided by law. (Art. 2049, NCC) agreement between petitioner and respondent corporation, was
- Gen. Rule: A married woman who acts as a solely for the benefit of the latter. The accessory contract (the
indemnity agreement) under which individual respondent
guarantor ordinarily binds only her separate
Martinez assumed the obligation of a surety for respondent
property. (Art. 145, Family Code)
corporation was similarly for the latter’s benefit. Petitioner had
- Exception: She may also bind the community or the burden of proving that the conjugal partnership of the
conjugal partnership property with her husband's spouses Martinez benefited from the transaction. It failed to
consent, and in cases provided by law such as discharge that burden.
when the guaranty has redounded to the benefit of
the family. (Arts. 70-71, 94(3), 121(3) and 122,
Family Code) B. EFFECT OF GUARANTY BETWEEN GUARANTOR
AND CREDITOR:
SECURITY BANK vs. MAR TIERRA
GR no. 143382, November 29, 2006 CONCEPT OF EXCUSSION:
FACTS:
- The guarantor cannot be compelled to pay the
Respondent Mar Tierra Corporation, through its president, creditor unless the latter has (1) exhausted all the
Wilfrido C. Martinez, applied for a P12,000,000 credit property of the debtor, and (2) has resorted to all
accommodation with petitioner Security Bank and Trust the legal remedies against the debtor. (Art. 2058,
Company. Petitioner approved the application and entered into a NCC)
credit line agreement with respondent corporation. It was - The guarantor binds himself to the creditor to fulfill
secured by an indemnity agreement executed by individual the obligation of the principal debtor only in case
respondents Wilfrido C. Martinez, Miguel J. Lacson and Ricardo the latter should fail to do so, and cannot do so.
A. Lopa who bound themselves jointly and severally with
(Art. 2047, NCC). If the principal debtor fulfills the
respondent corporation for the payment of the loan.
obligation guaranteed, the guarantor is discharged
Respondent corporation was not able to pay all its debt balance from any responsibility.
as it suffered business reversals, eventually ceasing operations. - While a guarantor enjoys excussion, nothing
Petitioner filed a complaint against respondent corp and prevents him from paying the obligation once
individual respondents. demand is made on him. Excussion is a right
granted to him by law and as such he may opt to
RTC issued a writ of attachment on all real and personal make use of it or waive it. (JN Dev. Corp. vs. Phil.
properties of respondent corporation and individual respondent
Export and Foreign Loan, 468 SCRA 555)
Martinez including the conjugal house and lot of the spouses but
it found that it did not redound to the benefit of his family, hence,
it ordered the lifting of the attachment on the conjugal house and DUTY OF CREDITOR TO SECURE JUDGMENT AGAINST
lot of the spouses Martinez. Petitioner appealed to CA. It DEBTOR BEFORE EXHAUSTION:
affirmed RTC decision. Petitioned to SC. - Generally, an ordinary personal guarantor (not a
pledgor or mortgagor) may demand exhaustion of
ISSUE: all the property of the debtor before he can be
W/N the conjugal partnership may be held liable for an indemnity compelled to pay. (Art. 2058, NCC)
agreement entered into by the husband to accommodate a third
- The creditor may hold the guarantor liable only
party.
after the judgment has been obtained against the
RULING: principal debtor and the latter is unable to pay.
NO, SC upheld the CA. Under Article 161(1) of the Civil Code, (Baylon vs. CA, 312 SCRA 502)
the conjugal partnership is liable for “all debts and obligations
contracted by the husband for the benefit of the conjugal EXCEPTIONS TO THE BENEFIT OF EXCUSSION:
partnership.” The court ruled in Luzon Surety Co., Inc. v. de 1. If the guarantor does not comply with Art. 2060, NCC;
Garcia that, in acting as a guarantor or surety for another, the - If the guarantor did not point out to the creditor the
husband does not act for the benefit of the conjugal partnership
available property of the debtor within the
as the benefit is clearly intended for a third party. In Ayala
Investment and Development Corporation v. Court of Appeals, Philippine territory
we ruled that, if the husband himself is the principal obligor in 2. If the guarantor bound himself solidarily with the principal
the contract, i.e., the direct recipient of the money and services debtor (Art. 2047, NCC);
to be used in or for his own business or profession, the 3. If the guarantor is a judicial bondsman and sub-surety
transaction falls within the term “obligations for the benefit of the (Art. 2084, NCC);
conjugal partnership.” In other words, where the husband 4. Where a pledge or mortgage has been given by him as a
contracts an obligation on behalf of the family business, there is special security (Philamgen Insurance Co. vs. Ramos, 16
a legal presumption that such obligation redounds to the benefit
SCRA 298);
of the conjugal partnership. On the other hand, if the money or
services are given to another person or entity and the husband
acted only as a surety or guarantor, the transaction cannot by
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5. If the guarantor fails to interpose it as a defense before HOW GUARANTOR USES EXCUSSION:
judgment is rendered against him. (Saavedra vs. Price, 1. When the guarantor set it up against the creditor
68 PHIL. 699); upon the latter’s demand for payment from him:
6. Under Art. 2059, NCC: - Demand for payment by the creditor upon the
a. If the guarantor has expressly renounced guarantor can be made only after judgment on the
excussion; debt for obviously the “exhaustion of the principal
b. If the guarantor has bound himself solidarily with debtor’s property” cannot even begin to take place
the debtor; before judgment has been obtained.
c. In case of insolvency of the debtor; - Joining the guarantor in the suit against the
d. When the guarantor has absconded, or cannot be principal debtor is not the demand intended by law
sued within the Philippines unless he has left a but actual demand. (Baylon vs. CA, 312, SCRA
manager or representative; 502)
e. If it may be presumed that an execution on the - Type of demand: Judicial or extrajudicial demand
property of the principal debtor would not result in 2. When the guarantor points out to the creditor
the satisfaction of the obligation. available property of the debtor within the Philippine
territory.
PROCEDURE TO MAKE GUARANTOR LIABLE (ART. - As soon as the creditor is required to pay, he must
2062, NCC): also point out to the creditor available property (not
1. Creditor must sue the Principal Debtor alone, except in in litigation or encumbered) of the debtor within the
cases under Art. 2059: Philippines. (Luxon Steel Corp. vs. Sia, 28 SCRA
- Generally, the creditor may hold the guarantor only 58)
after judgment has been obtained against the - Failure of the guarantor to point out to the creditor
principal debtor and the latter is unable to pay. the debtor’s property sufficient to clever his debt
2. Guarantor must be notified so he may appear: forecloses his right to set up the defense of
a. If the guarantor appears - he is given the benefit of excussion. (Bitanga vs. Pyramid Construction, 563
exhaustion even if the judgment is rendered against SCRA 544)
him and the principal debtor. The voluntary
appearance of the guarantor does not constitute a DUTY OF NEGLIGENT CREDITOR:
renunciation of his right to excussion. (Art. 2059(1), - The guarantor having fulfilled all the conditions
NCC) required in Art. 2060, NCC, the creditor who is
b. If he does not appear - he cannot set up the negligent in exhausting the property pointed out
defenses allowed to him by law, and no longer be shall suffer the loss, to the extent of said property,
possible for him to question the validity of the for the insolvency of the debtor resulting from such
judgment rendered against the debtor. negligence. (Art. 2061, NCC)
3. Hearing before the execution can be issued against the - After the guarantor has fulfilled the conditions
guarantor: required for making use of the benefit of
- A guarantor is entitled to be heard before an exhaustion, it is the duty of the creditor to exhaust
execution can be issued against him where he is all the property of the debtor pointed out by the
not a party in the case involving his principal. guarantor and to resort to all legal remedies against
Notice and hearing constitute the essence of the debtor by the guarantor and to resort to all legal
procedural due procedural due process. (Towers remedies against the debor, and if he fails to do so,
Assurance Corp. vs. Ororama Supermarket, 80 he shall suffer the loss but only for the value of said
SCRA 313) property for the insolvency of the debtor.
JOINDER OF GUARANTOR AND PRINCIPAL AS PARTIES
BAYLON vs. CA
DEFENDANT: GR no. 109941, August 17, 1999
- General Rule - The guarantor, not being a joint
contractor with his principal, cannot be sued with FACTS:
his principal. (Art. 2062, NCC) Pacionara Baylon introduced Rosita Luanzon to Leonila
- Exception - If it would serve merely to delay the Tomacruz which is the co-manager of her husband in PLDT.
ultimate accounting of the guarantor. Baylon invited Leonila to lend Rosita money for her business as
- In a case, the Court overruled the objection there contractor and in return pay the amount and a monthly interest
rate of 5%.
was a misjoinder of parties defendant “it having
been proved that the principal is not able to Persuaded by Baylon’s assurances that the business was stable
perform a contract which he has made and for and the high interest rate Leonila lent Rosita P 150,000. Rosita
which in collateral agreement, the guarantors on the other hand issued and signed a promissory note
become liable no different result would be attained acknowledging the receipt of P 150,000 payable on August 22,
if the plaintiff were forced to institute separate 1987. Baylon signed the promissory note as “guarantor”. Later
actions against the principal and guarantors. (US on, Rosita failed to pay the said amount forcing Leonila to file a
vs. Varadero De La Quinta, 40 Phil. 48) case for collection of sum of money against Rosita and Baylon.
However, summons were never served to Rosita.
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Baylon denied having guaranteed the payment of the promissory
does not prejudice the principal debtor. (Art. 2063,
note and claims that the money given to Rosita was not a loan NCC)
but an investment and that assuming that the loan was - A compromise cannot prejudice the guarantor or
guaranteed Leonila has not exhausted the property of Rosita nor the debtor when he is not a party to the
resorted to all legal remedies against Rosita as required by law. compromise. A guarantor may not bind himself for
Trial court ruled in favor of Leonila making Baylon liable for the more than the principal debtor both as regards the
said amount. This decision was affirmed by the C.A. amount and the onerous nature of the conditions.
(Art. 2054, par. 2, NCC)
ISSUE:
- However, if the guarantor or debtor is not a party to
W/N Baylon should be held liable for the amount of the
promissory note. such compromise, the same can benefit him as it is
in the nature of a stipulation in favor of a third
RULING: person which the guarantor or debor may accept
NO, Petitioner is invoking the benefit of excussion pursuant to unless it has been revoked before his acceptance.
article 2058 of the Civil Code, which provides that “The (Art. 1311, par. 2, NCC)
guarantor cannot be compelled to pay the creditor unless the
latter has exhausted all the property of the debtor, and has
ILLUSTRATION:
resorted to all the legal remedies against the debtor.”
Case: D owes C P10,000 with G as the guarantor:
It is axiomatic that the liability of the guarantor is only subsidiary. ● If D and C agree to reduce the debt to P8,000 G (the
All the properties of the principal debtor must first be exhausted guarantor) is liable to C for only P8,000 if D does not pay C
before his own is levied upon. Thus, the creditor may hold the because the compromise benefits G.
guarantor liable only after judgment has been obtained against
the principal debtor and the latter is unable to pay, "for obviously ● If the amount is increased to P12,000 G is liable only for
the 'exhaustion of the principal's property' — the benefit of P10,000 because the compromise cannot prejudice him.
which the guarantor claims — cannot even begin to take place
before judgment has been obtained." This rule is embodied in ● If the agreement is between C and G whereby D is given an
article 2062 of the Civil Code which provides that the action extension of time within which to pay such extension
brought by the creditor must be filed against the principal debtor accrues to the benefit of D(the principal debtor)
alone, except in some instances when the action may be
brought against both the debtor and the principal debtor. ● However, a compromise between C and G shortening the
period for payment it is not binding upon D because the
Under the circumstances availing in the present case, the court same cannot prejudice him.
held that it is premature to even determine whether or not
petitioner is liable as a guarantor and whether she is entitled to
the concomitant rights as such, like the benefit of excussion, JOINT GUARANTY:
since the most basic prerequisite is wanting — that is, no
Article 2065. Should there be several guarantors of only one
judgment was first obtained against the principal debtor Rosita debtor and for the same debt, the obligation to answer for the
B. Luanzon. It is useless to speak of a guarantor when no debtor
same is divided among all. The creditor cannot claim from the
has been held liable for the obligation which is allegedly secured
guarantors except the shares which they are respectively bound
by such guarantee. Although the principal debtor Luanzon was
to pay, unless solidarity has been expressly stipulated.
impleaded as defendant, there is nothing in the records to show
that summons was served upon her. Thus, the trial court never
The benefit of division against the co-guarantors ceases in the
even acquired jurisdiction over the principal debtor. The court
same cases and for the same reasons as the benefit of excussion
held that private respondent must first obtain a judgment against
against the principal debtor. (NCC)
the principal debtor before assuming to run after the alleged
guarantor.
BENEFIT OF DIVISION AMONG SEVERAL
EXCUSSION IN SUB-GUARANTY: GUARANTORS:
- The guarantor of a guarantor shall enjoy the benefit - In addition to the benefit of exhaustion (excussion),
Art. 2065, NCC, entitles the several guarantors of
of excussion, both with respect to the guarantor
and to the principal debtor. (Art. 2064, NCC) only 1 debtor and for the same debt, to the benefit
- A guarantor has the right to demand the exhaustion of division. However, this benefit cannot be availed
of the properties of the principal debtor. (Art. 2958, if there are 2 or more debtors of one debt each with
NCC) different guarantors, or if there are 2 or more
guarantors of the same debtor but not only for the
DEFINITION OF COMPROMISE same debt.
- It is a contract whereby the parties, by making - The liability of joint guarantors is divided among
reciprocal concessions, avoid a litigation or put an them/ Therefore, the guarantors are not liable to the
end to one already commenced. (Art. 2028, NCC) creditor beyond the shares which they are
respectively bound to pay. (See Art. 1208, NCC)
EFFECTS OF COMPROMISE:
EXCEPTIONS TO THE RULE ON JOINT GUARANTORS:
- A compromise between the creditor and the
- When solidarity has been expressly stipulated. (Art.
principal debtor benefits the guarantor but does
2074, par. 2, NCC)
not prejudice him. That which is entered into
- If any of the circumstances enumerated in Art.
between the guarantor and the creditor benefits but
2059, NCC, should take place, as would the benefit
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of excussion of the debtor’s property. (Cacho vs. WHAT COMPRISES INDEMNITY?
Valles, 45 Phil. 107) 1. The total amount of the debt:
- This includes interest paid by the guarantor.
CONDITIONS/REQUISITES FOR BENEFIT OF DIVISION: - Guarantor has no right to demand reimbursement
1. There are several guarantors of only one debtor until he has actually paid the unless expressly
and for the same debt; stipulated. (Tuazon vs. Machuca, 46 Phil. 561)
2. The benefit of division is claimed promptly; 2. The legal interests thereon from the time the payment
3. Solidarity has not been expressly stipulated. was made known to the debtor, even though it did not
earn interest for the creditor:
Examples:
- The notice is, in effect, a demand so that if the
1. If G and H are the guarantors of the debt of D to C in the debtor does not pay immediately, he incurs in
amount of P10,000, C can demand from G or H only ½ of delay, and, hence, renders him liable for legal
the obligation unless G and H had bound themselves interest, as indemnity. (PNB vs. Luzon Surety, 68
solidarily with D in which case they would be sureties and, SCRA 207)
therefore, C can hold each responsible for the entire - it is immaterial that the debt did not earn interest
P10,000. for the creditor, because the guarantor’s right to
legal interest is granted by law by virtue of the
C may also demand from G or H the entire obligation in the
payment he has made, and is independent of the
cases mentioned under Art. 2059, NCC, as where G or H
has expressly renounced the benefit of division. creditor’s right to claim interest which was
necessarily regulated by the stipulations between
2. If G and H are the guarantors of D and E (solidary debtors), him and the debtor.
respectively, for the debt of P10,000 which D and E - Under Art. 2066, NCC, if the debt guaranteed (and
borrowed from C, C can hold either G or H responsible as paid by the guarantor) pays interest at a higher rate
guarantor for the entire P10,000. Here, the debtors are than the legal rate of interest, it is debatable
distinct and the guarantors are bound by distinct ties to
whether the guarantor may invoke payment of
different debtors.
interest at such a higher rate.
If the obligation of D and E is joint, there are actually two 3. The expenses incurred by the guarantor after having
debts, the debt of D for P5,000 and the debt of E for notified the debtor that payment had been demanded
P5,000. G, for instance, cannot demand that the claim of C of him:
for P5,000 against D be divided G and H. - The expenses referred to are only those that the
guarantor has to satisfy in accordance with law due
to the guaranty, not those which depend upon his
BENEFIT OF EXCUSSION AMONG SEVERAL
will or own acts or gis fault for these are his
GUARANTORS:
exclusive personal responsibility.
- In order that a guarantor may be entitled to the
- These expenses are limited to those incurred by
benefit of division, it is not required that he point
the guarantor after having notified the debtor that
out the property of his co-guarantors because the
payment has been demanded of him by the
obligation of the guarantor with respect to his
creditor.
co-guarantors is not subsidiary but direct and does
4. Damages, if they are due:
not depend as to its origin on the solvency or
- The general rules on damages under Arts.
insolvency of the latter. If one of them should turn
2195-2235, NCC, shall apply.
out to be insolvent, his share has to be borne by
- Note that the damage suffered by the guarantor
the others. (Art. 2073, NCC)
with respect to the payment of money to the
- However, when a creditor claims the share of a
creditor is compensated by the payment of legal
guarantor from the others on the ground of
interests to the guarantor.
insolvency, the latter can set up against the creditor
the existence of the property of the supposed
EXCEPTIONS TO THE RIGHT TO INDEMNITY OR
insolvent, possessing the same conditions as
REIMBURSEMENT:
required by Art. 2060, NCC.
1. If the guaranty is constituted without the knowledge or
against the will of the principal debtor, the guarantor can
C. EFFECTS OF GUARANTY BETWEEN recover only insofar as the payment had been beneficial
THE DEBTOR AND THE GUARANTOR: to the debtor. (Art. 2050, NCC);
2. Payment by a third person who does not intend to be
reimbursed by the debtor is deemed to be a donation,
INDEMNIFICATION:
which, however, requires the debtor’s consent. But the
- The guarantor who pays for a debtor must be
payment is valid as to the creditor who has accepted it.
indemnified by the latter. (Art. 2066, NCC). Since
(Art. 1238, NCC);
the debtor is the one directly and principally liable,
3. The right to demand reimbursement is subject to a
it is just that the guarantor who makes payment
waiver.
must be indemnified by the debtor.
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EFFECT OF PAYMENT BY THE GUARANTOR: GUARANTOR’S RIGHT TO SUBROGATION:
- If the guarantor should pay without notifying the - The guarantor who pays is subrogated by virtue
debtor, the latter may enforce against him all the thereof to all the rights which the creditor had
defenses which he could have set up against the against the debtor. (Art. 2067, NCC)
creditor at the time the payment was made. (Art. - If the guarantor has compromised with the creditor,
2068, NCC he cannot demand of the debtor more than what he
- if the debtor repeated payment: has really paid. (Art. 2067, NCC)
- Gen. Rule: Before the guarantor pays the - Payment against the will of the debtor
creditor, he must first notify the debtor. If he Whoever pays on behalf of the debtor without the
fails to notify and the debtors repeats the knowledge or against the will of the latter, cannot
payment, the guarantor’s only remedy is to compel the creditor to subrogate him in his rights
collect from the creditor but he has no cause such as those arising from a mortgage, guaranty or
of action against the debtor for the return of penalty. (Art. 1237, NCC)
the amount paid by him (guarantor) even if the
creditor should become insolvent. (The GUARANTOR’S LEGAL REMEDIES AGAINST THE
guarantor bears the loss. PRINCIPAL DEBTOR BEFORE PAYMENT:
- Exception: Guarantor may still claim 1. Obtain release from guaranty; or
reimbursement from the debtor despite lack of 2. Demand a security to protect him from any
notice if these conditions are present: proceedings by the creditor and from the danger of
(a) Creditor becomes insolvent; insolvency of the debtor. (Art. 2071, NCC)
(b) Guarantor was prevented by
fortuitous event to advise the debtor
Note: The guarantor’s remedies are alternative.
of the payment; and
(c) Guaranty is gratuitous.
Note: In a gratuitous guaranty, the guarantor receives
Instances When the Remedy of Art 2071, NCC Applies:
nothing and it would be unfair to deny him the right to 1. When the guarantor is sued for the payment;
recover from the principal debtor. If the creditor is solvent, 2. In case of insolvency of the principal debtor;
the guarantor must still recover from him. 3. When the debtor has bound himself to relieve him
from the guaranty within a specified period, and
EFFECT OF PAYMENT BEFORE DESIGNATED PERIOD: this period has expired;
- If the debt was for a period and the guarantor paid 4. When the debt has become demandable, by
it before it became due, he cannot demand reason of the expiration of the period for payment;
reimbursement of the debtor until expiration of the 5. After the lapse of 10 years, when the principal
period unless the payment has been ratified by the obligation has no fixed period for its maturity,
debtor. (Art. 2069, NCC) unless it be of such nature that it cannot be
- If the demand on the guarantor was made during extinguished except within a period longer than 10
the terms of the guaranty, that payment was years;
actually made after the term is not material. What is 6. If there are reasonable grounds to fear that the
controlling is that default and demand had taken principal debtor intends to abscond;
place while the guaranty was still in force. (JN 7. If the principal debtor is in imminent danger of
Development corp. vs. Phil. Export and Foreign becoming insolvent. (Art. 2071, NCC)
Loan, 468 SCRA 555)
GENERAL INDEMNITY CO. vs. ALVAREZ
GUARANTOR’S CLAIM AGAINST A THIRD PARTY: GR no. L-9434, mARCH 29, 1957
- If one, at the request of another, becomes a
guarantor for the debt of a third person who is not FACTS:
present, the guarantor who satisfies the debt may Appellee General Indemnity Co., Inc., filed a complaint in the
sue either the person so requesting or the debtor Court of First Instance of Manila against appellant Estanislao
for reimbursement. (Art. 2072, NCC) Alvarez for the recovery of the sum of P2,000 representing the
- The guarantor who guarantees the debt of an amount of a loan allegedly taken by the appellant from the
Philippine National Bank, the payment of which appellee
absentee at the request of another has a right to
guaranteed with an indemnity bond, and for which appellant, as
claim reimbursement, after satisfying the debt
counter-guaranty, executed in plaintiff's favor a mortgage on his
either from: (1) the person who requested him to be share of land in a parcel of land. The complaint further alleged
a guarantor; or (2) the debtor. (see Art. 2050, NCC) that the appellant failed to pay said loan, together with interest,
to Philippine National Bank, as a result of which the bank
MEANING OF SUBROGATION: deducted the amount thereof plaintiff's deposit. Plaintiff likewise
- Subrogation transfers, to the person subrogated, claimed the amount of P426.07 as attorney's fees which the
the credit with all the rights thereto appertaining defendant agreed to pay under mortgage annexed to the
complaint.
either against the debtor or against third persons,
by they guarantors or possessors of mortgages,
Appellant Estanislao Alvarez, answered, admitting the fact of the
subject to stipulation in conventional subrogation. loan and the execution of the mortgage of the complaint, but
(Art. 1303, NCC)
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plaintiff to the Philippine National Bank; and as affirmative
co-guarantors in the same manner as the
defense, appellant averred that the loan in question was secured guarantor. (Art. 2075, NCC)
by him only in accommodation of one Hao Lam, and that plaintiff
agreed not to take any steps against appellant and the mortgage ILLUSTRATION:
executed by him in plaintiff's favor until the latter had failed to
Case: G, H, and I are D’s guarantors of a debt of P9,000 in favor
obtain payment from said Hao Lam.
of C.
ISSUE:
● If D becomes insolvent the right of G, H, and I to
W/N the filing of the complaint made by General Indemnity Co,
proportionate division of their obligation ceases as far as C is
(the guarantor or surety) against Alverez (principal debtor) for
concerned. C may demand payment of the entire obligation
payment before the former has paid the creditor is Premature?
from any of the guarantors. (See Arts. 2065, par. 2, and
2059(3), NCC)
RULING:
YES, The matter of whether the guarantor (General Indemnity)
● If G pays the whole debt of P9,000, he can later demand
has actually paid the creditor should be decided in the
from H and I P3,000 each. But if H is insolvent, his share
affirmative before the guarantor can claim reimbursement from
shall be borne by G and I proportionately. Therefore, G can
the principal debtor. Under the last paragraph of Art. 2071, a
demand P4,500 from L. (Art. 2073, par. 2, NCC)
guarantor who has not paid the creditor can proceed against the
principal debtor only to obtain release from the guaranty or a
● If the benefit of division ceases for reasons other than the
security against an eventual insolvency of the debtor.
insolvency of the principal debtor, the right to reimbursement
granted to G against H and I may only be exercised if G
An action by the guarantor against the principal debtor for
makes payment in virtue of a judicial demand by C.
payment before the former has paid the creditor is premature.
● If G sues H and I, the latter may raise the defense of
payment by D by virtue of which the obligation was
D. EFFECTS OF GUARANTY extinguished.
AS BETWEEN CO-GUARANTORS:
Other defenses such as fraud, prescription, remission,
illegality, etx., may also be set up because they are defenses
GENERAL RULE: When there are two or more guarantors of inherent in the obligation, the effect of which is to nullify the
the same debtor and for the same debt, the one among obligation or render it effective. However, if D was a minoy at
them who has paid may demand of each of the others the the time the obligation was contracted, the defense of
share which is proportionately owing from him. (Art. 2073, minority is not available to H and I because it is personal to
par. 1, NCC) D.
- The obligation of several guarantors of the same
● Under Art. 2075, if I has a guarantor name F and I becomes
debtor and for the same debt is joint. each is insolvent, F is liable to G for P3,000 or P4,500 if H is also
bound to pay only his proportionate share. (Arts. insolvent.
1207-1208, 2065, NCC)
- Art. 2073 contemplates a situation when one
guarantor has paid the debt to the creditor, and he E. EXTINGUISHMENT OF GUARANTY:
is seeking reimbursement from each of his
co-guarantors the share which is proportionately
owing him. EXTINGUISHMENT OF A CONTRACT OF GUARANTY:
- However, it is required that the payment must have 1. Payment or Performance by the debtor of the
been made (1) in virtue of a judicial demand, or (2) obligations guaranteed. (Art. 1231(1), NCC);
because the principal debtor is insolvent. (Art. 2. Dacion En Pago - If the creditor voluntarily accepts
2073, par. 2, NCC) immovable or other property in payment of the debt.
(Art. 2077, NCC);
EFFECT OF INSOLVENCY OF ANY GUARANTOR: 3. Loss of the thing due - The obligation to delivery a
- If any of the guarantors became insolvent, his share determinate thing is extinguished if it should be lost or
shall be borne by the other co-guarantors, destroyed without the fault of the debtor, and before he
including the payer, in the same proportion. (Art. has incurred in delay. (Art. 1262, NCC);
2073, par. 2, NCC) 4. Service becomes Impossible - When the prestation
becomes legally or physically impossible to fulfill
DEFENSES AVAILABLE TO CO-GUARANTORS: without the fault of the debtor. (Art. 1266, NCC);
- In cases under Art. 2073, the co-guarantors may 5. Consignation - If the debtor made a consignation of
set up against the one who aid, the same defenses the thing, and the creditor authorizes the debtor to
which would have pertained to the principal debtor withdraw the same, the creditor loses every preference
against the creditor, and which are not purely which he may have over the thing. (Art. 1261, NCC);
personal to the debtor. (Art. 2074, NCC) 6. Condonation - renunciation of the principal debt by the
creditor. (Art. 1273, NCC);
LIABILITY OF SUB-GUARANTOR IN CASE OF 7. Merger or Confusion - When the character of the
INSOLVENCY OF GUARANTOR: creditor and the debtor are merged into one person.
- In case of insolvency of the guarantor for whom he However, while a merger involving a guarantor may
bound himself, a sub-guarantor is liable to the
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extinguish the guaranty, it does not extinguish the also untouched, IS NOT MATERIAL. (NASSCO vs.
principal obligation. (Art. 1276, NCC); Torrento, 20 SCRA 427)
8. Compensation of the debts of the debtor and the
creditor will extinguish the guaranty. (Arts. 1279, 1280, RELEASE BY CONVEYANCE OF PROPERTY:
NCC) - If the creditor voluntarily accepts immovable or
9. Novation - However, when the principal obligation is other property in payment of the debt, even if he
extinguished due to novation, the guaranty may subsist should afterwards lose the same through eviction,
only insofar as it benefits third persons who did not the guarantor is released. (Art. 2077, NCC)
give their consent. (Art. 1296, NCC)
10. Extension granted to the debtor by the creditor without Rationale for the Release:
the consent of the guarantor extinguishes the guaranty. 1. The obligation secured by the guaranty is
(ART. 2079, NCC) extinguished the moment the creditor accepts the
11. Failure of Subrogation - Guarantors are released from dation in payment, and such extinguishment of the
their obligation when, by some act of the creditor, they principal obligation also results in the
cannot be subrogated to the rights, mortgages, and extinguishment of the guaranty, which is an
preferences of the creditor. (Art. 2080, NCC); accessory contract;
12. Release - Creditor releases the guarantor from the 2. If the creditor loses the thing received on payment
guaranty. [Note: If there are several guarantors, a of the debt because of eviction, a new relationship
release made by the creditor in favor of one guarantor is created between the creditor and the debtor. This
(without the consent of the others) benefits all to the new relationship differs from that originally
extent of the share of the guarantor to whom it has guaranteed by the guarantor; and
been granted. (Art. 2078, NCC)] 3. The guarantor, believing himself free from his
13. Other causes - Annulment, rescission, fulfillment of a obligations as a guarantor because of the dation in
resolutory condition, and prescription. (Art. 1231, NCC) payment, is not able to take the necessary
precautions to avoid the adverse consequences to
MATERIAL ALTERATION OF PRINCIPAL CONTRACT: him in case of the insolvency of the debtor. (p.386,
- Any agreement between the creditor and the De Leon, Credit Transactions, 2021)
principal debtor which essentially varies the terms
of the principal contract without the consent of the RELEASE OF GUARANTOR WITHOUT CONSENT OF
surety, will release the surety from liability. (National OTHERS:
Bank vs. Veraguth, 50 Phil. 253) - A release made by the creditor in favor of one
- Material alteration would constitute a novation or guarantor, without the consent of the others,
change of the principal contract which is benefits all to the extent of the share of the
consequently extinguished, and releases the guarantor to whom it has been granted. (Art. 2078,
guarantor. NCC)
- An alteration is material when such imposes a new - Example: G, H and I are guarantors for a debt of
obligation or added burden on the party promising P9,000.
or which takes away some obligation already - If G is released without the consent of H
imposed, changing the legal effect of the original and I then H and I will each be liable for
contract and not merely the form thereof. (NASSCO only P3,000 (or ⅓). H and I are benefited
vs. Torrento, 20 SCRA 427) to the extent of P3,000,00, the share of G.
Examples: - If the release is made with their consent
1. A novation where the credit of P40,000 is increased H and I will each be responsib;e for
by an additional P30,000, or where the principal P4,500 (or ½).
debtor is substituted, or where the agency to sell - If G is released with the consent only of H
granted to the debtor is extended to places other H is liable for P6,000 while I is liable for
than that covered by the contract of agency, P3,000.
releases the guarantor who did not give consent
thereto. (National Bank vs. Veraguth, 50 Phil. 253) RELEASE BY EXTENSION OF TERM GRANTED BY
2. Increase in the interest rates with the guarantor’s CREDITOR TO THE DEBTOR:
consent does not release the guarantor where the - An extension granted to the debtor by the creditor
guarantor is demanding only the original and not without the consent of the guarantor extinguishes
increased rate of interest. the guaranty. (Art. 2079, NCC)
3. Assignment by the creditor without the knowledge - Rationale: An extension of time given to the
or consent of the surety is not a material alteration principal debtor by the creditor without the surety’s
of the contract sufficient to discharge the surety. consent would deprive the surety of his right to pay
(PNB vs. Macapanga Producers, 99 Phil. 180) the creditor and to be immediately subrogated to
4. Change in the technical specifications of the items the creditor’s remedies against the principal debtor
to be purchased (diameter or steel bars), but their upon the original maturity date. The surety is said
amount, length and quality remained unchanged, to be entitled to protect himself against the
and the period for payment and the amount of contingency of the principal debtor or the
liability of the principal debtor and the surety were indemnitors becoming insolvent during the
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extended period. (Security Bank and Trust Co. vs. guarantor may invoke against the creditor. (JN Dev.
Cuenca, 341 SCRA 781) Corp. vs. Phil. Export and Foreign Loan Guarantee,
468 SCRA 555)
Examples: e. Extension not granted by creditor on the bond:
a. Payments due to debtor from third persons assigned to - if by the terms of a bond, the surety guaranteed to
creditor: the Government compliance by a private school
- If a surety signed a promissory note issued by the “with all its obligations, including the payment of
principal debtor in favor of the creditor because of the salaries of its teachers and employees” and an
a deed of assignment whereby the debtor assigned extension of time was granted by the teachers
to the creditor all payments to be received by the Arts. 2079, NCC, is not applicable because the
debtor from the third person The approval by the supposed extension was not granted by the
creditor of the release by the third person of 3 Government, the creditor on the bond. (General
payments directly to the debtor without any notice Insurance & Surety vs. Republic, 7 SCRA 4)
to the surety violated the deed of assignment. In f. Extension granted to first-tier obligors:
effect, the creditor received payments of the said 3 - if under the indemnity agreement, the indemnitors
releases. In approving the 3rd payment after the bound themselves jointly and severally to the
promissory note became due, in effect, the creditor surety for the faithful compliance with the terms of
extended the term of the payment of the note the surety bond issued by the surety in favor of the
without the consent of the debtor. (Prudencio vs. creditor to secure a credit line extended to the
CA, 143 SCRA 7) principal debtor the indemnitors remained
b. Where obligation payable in installments: bound to the surety but not to the creditor. Such
- If a guarantor is liable for different payments (ie. creditors cannot directly demand payment of the
installments for rents or upon a series of principal obligations from the indemnitors. Hence,
promissory notes) an extension of time as to one or the first sentence of Art. 2079, NCC, does not
more will not affect the liability of the surety for the apply. (Cochingyan, Jr. vs. R&B Surety, 151 SCRA
others. (Villa vs. Garcia Bosque, 49 Phil. 126) 339)
- But if the whole unpaid balance has become
automatically due (under an acceleration clause) for EXTENSION MUST BE BASED ON A NEW AGREEMENT:
failure to pay an installment The act of the - The mere failure on the part of the creditor to
creditor of extending the payment of said demand payment after the debt has become dues
installment (without the guarantor’s consent) does not of itself constitute any extension of time
discharges the guarantors because, in this case, referred under Art. 2079, NCC.
the extension constitutes an extension of the - The extension of the terms must be based on some
payment of the whole indebtedness. (Radio Corp. new agreement between the creditor and the
vs. Roa, 62 Phil. 212) principal debtor by virtue of which the creditor
c. Consent to extension waived in advance by the deprives himself of his claim. Hence, the mere
guarantor: failure or neglect on the part of the creditor to
- If under the terms of the bond executed by the enforce payment or to sue upon a credit, as soon
surety company it had agreed to guarantee that a as the same or any part of it matures, does not
non-immigrant chinese student “would actually constitute an extension of the term of the obligation
depart from the Philippines on or before April 7, and, therefore, the liability of the guarantor is not
1958, or within such period as the Commission of extinguished. (HSBC vs. Aldecoa, 30 Phil. 255)
Immigration or his authorized representative may - Novation must be expressed and cannot be
properly allow” This amounts to the surety’s inferred or implied from the creditor’s silence or
consent to all the extensions granted to the inaction. (Art. 1292, NCC; Lerma vs. Reyes, GR no.
non-immigrant students referred. L-12081, may 30, 1958)
- The extension of loans do not releases the surety
where the “continuing guarantee” executed by the RELEASE WHEN GUARANTOR CANNOT BE
surety provides that he consents and agrees that SUBROGATED:
the bank “may, at any time or from time to time, - The guarantors, even though they be solidary, are
extend or change the time of payments and/or the released from their obligation whenever by some
manner, place or terms of payment of all such act of the ceditor they cannot be subrogated to the
instruments loans, advances, credits, or other rights, mortgages, and preferences of the latter.
obligations guaranteed by the surety.” (Tanedo vs. (Art. 2080, NCC)
Allied Banking Corp., 344 SCRA 100) - Rationale: The act on one cannot prejudice
d. Payment by guarantor after creditor’s demand: another. It also avoids the opportunity for collusion
- The guarantor may opted not to avail (1) Excussion; between the creditor and debtor or a third person.
or (2) Requirement of Consent to extensions of (p.393, De Leon, Credit Transactions, 2021)
payments; by paying the obligation according to - The “act of creditor” must be personal, direct and
the tenor of the guaranty once demand is made on of a positive character, and excludes, as a
him by the creditor. The principal debtor cannot consequence, mere passivity of the creator or his
raise against the guarantor defenses which only the
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lack of diligence. (p. 1081,Pena, Compendio de supplemental agreement provides for the sale by the plaintiff to
Derecho cIVIL, 1966) defendant Torrento of other sizes of deformed steel bars at
- if the creditor has acquired a lien upon the property prices of P430.00 and P440.00 per metric ton. Specifically, the
of a principal debtor, the creditor at once becomes changes are in the diameter of the steel bars which originally
charged with the duty of retaining such security, or was 3/8", to 1/2 and 5/8"; and the price from P435.00 per ton, to
maintaining such lien in the interest of the surety, P430.00 per ton for the 1/211 bars. The amount of steel bars to
and any release be sold to defendant Torrento remained the same. The length
and the deformed quality of the bars likewise remained
unchanged. It is even specifically provided in Par. 2 of the
DEFENSES AVAILABLE TO GUARANTOR AGAINST
supplemental agreement that "aside from the above
CREDITOR: amendments and/or modifications, the said contract (referring to
- General Rule: The guarantor may set up against the original contract) shall not be affected, altered or modified in
the creditor all the defenses which pertain to the any way." There was no alteration in the principal condition of the
principal debtor and are inherent in the debt. (Art. contract. The period of payment was not changed, and the
2081, NCC) amount of the liability of the principal debtor and of the surety
- Exception: Purely personal defenses to the debtor. was also untouched. There was no added burden imposed upon
or assumed by the buyer." In short, the supplemental agreement
(Art. 2081, NCC)
did not result in the principal debtor's assuming more onerous
conditions than those stipulated in the original contract, and for
Classification: Defenses against the Creditor: which the surety furnished the bond. There was consequently, no
material or essential alteration of the original contract which
Defenses derived ● Nullity of the principal obligation could result in the release of the surety from the obligation under
from the principal ● Contract is voidable the said bond.”
obligation
We (SC) see no error in the ruling of the lower court just
Defenses from the ● Lack of consent quoted. In Pacific Tobacco Corporation vs. Lorenzana, et al.,
contract of guaranty ● Mistake G.R. L-8086, October 31, 1961 it was held: "for purposes of
● Nullity of the contract of Guaranty releasing a surety's obligation, there must be a material alteration
● Excussion of the contract in connection with which the bond is given, a
● Division change which imposes some new obligation on the party
promising or takes away some obligation already imposed,
Defenses derived ● Negligence of the creditor in exhausting changing the legal effect of the original contract and not merely
from the conduct of the property pointed out by the the form thereof . . . To allow compensated surety companies to
the creditor guarantor. (Art. 2061, NCC)
● Extension granted by the creditor to the
collect and retain premiums for their services and then repudiate
debtor without the consent of the their obligations on slight pretexts which have no relation to the
guarantor. (Art. 2079, NCC) risk, would be most unjust and immoral, and would be a
● Creditor committed an act that prevents perversion of the wise and just rules designed for the protection
the subrogation of the guarantor to the of voluntary sureties." While it is the rule that the liability of a
rights, mortgages, and preferences of the surety is limited by the terms of the surety bond fixing its liability
creditor. (Art. 2080, NCC) and that such liability cannot be extended by implication, it
should be noted in the present case that although the technical
specifications of the items to be purchased have been changed,
PURELY PERSONAL DEFENSES:
it clearly appears that such changes are not substantial and have
- This includes those based on the incapacity, or the not added any other liability to that originally assumed. A surety
limited capacity to act, of the debtor (such as is not released by a change in the contract which does not have
minority or insanity). the effect of making its obligation more onerous.
- The concept does not include the vitiation of
consent of the debtor by mistake, violence,
intimidation, undue influence or fraud these SECURITY BANK vs. CUENCA
vices of consent are not purely personal to the GR no. 138544, October 3, 2000
debtor but are inherent in the debt.
Being an onerous undertaking, a surety agreement is strictly
construed against the creditor, and every doubt is resolved in
CASES:
favor of the solidary debtor. The fundamental rules of fair play
NASSCO vs. TORRENTO require the creditor to obtain the consent of the surety to any
GR no. L-21109, June 26, 1967 material alteration in the principal loan agreement, or at least to
notify it thereof. Hence, petitioner bank cannot hold herein
Appellant surety company maintains that the execution of the respondent liable for loans obtained in excess of the amount or
supplemental agreement of February 6, 1959 without its beyond the period stipulated in the original agreement, absent
knowledge and consent released it from any liability under the any clear stipulation showing that the latter waived his right to be
surety bond as there was a material alteration of the principal notified thereof, or to give consent thereto. This is especially true
contract. We find the contention without merit. The court a quo where, as in this case, respondent was no longer the principal
analyzed the factual set-up as follow: ”x x x An examination and officer or major stockholder of the corporate debtor at the time
comparison of the contract and the supplemental agreement will the later obligations were incurred. He was thus no longer in a
reveal that the only change or alteration consists of the following: position to compel the debtor to pay the creditor and had no
Instead of the original stipulation for the purchase and sale of more reason to bind himself anew to the subsequent obligations.
3/8, 20' or 30', deformed steel bars, at P435.00 per ton, which
kind of steel bars were no longer available in stock, the Indeed, it has been held that a contract of surety "cannot extend
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to more than what is stipulated. It is strictly construed against terminated its Sub-Contract agreement with the latter. DMCI
the creditor, every doubt being resolved against enlarging the claims reimbursement for all the cost and compensation arising
liability of the surety.” Likewise, the Court has ruled that "it is a from Altech’s default. Failure to amicably settle, DMCI filed a
well-settled legal principle that if there is any doubt on the terms complaint against Altech and Mercantile before the Construction
and conditions of the surety agreement, the doubt should be Industry Arbitration Commission (CIAC) seeking to collect the
resolved in favor of the surety x x x. Ambiguous contracts are sum of P30Million representing costs it incurred to complete the
construed against the party who caused the ambiguity.” In the sub-contracted works. CIAC dismissed DMCI’s complaint and
absence of an unequivocal provision that respondent waived his released Mercantile from its obligation under the Performance
right to be notified of or to give consent to any alteration of the Bond, under the Art. 2080 of the Civil Code, since DMCI’s delay
credit accommodation, we cannot sustain petitioner’s view that had deprived it of the opportunity to exercise its rights of
there was such a waiver. subrogation against Altech. On Appeal, CA reversed CIAC’s
decision and ruled that Altech and Mercantile are jointly and
solidarily liable to pay DMCI pursuant to the Performance Bond,
INCIONG vs. CA Mercantile (as surety) guaranteed the performance and
GR no. 96405, June 26, 1996 performance and completion by Altech of its sub-contracted
works, and in case of Altech’s failure to complete the Project
FACTS: according to the terms of the Sub-Contract, Mercantile’s liability,
Petitioner argues that the dismissal of the complaint against as surety, sets in.
Naybe, the principal debtor, and against Pantanosas, his
co-maker, constituted a release of his obligation, especially ISSUE:
because the dismissal of the case against Pantanosas was upon W/N Mercantile Insurance is released from its obligation under
the motion of private respondent itself. He cites as basis for his the Performance Bond because it was not able to exercise its
argument, Article 2080 of the Civil Code which provides that: right to subrogate DMCI.
“The guarantors, even though they be solidary, are released from
their obligation whenever by some act of the creditor, they RULING:
cannot be subrogated to the rights, mortgages, and preferences NO, Art. 2080, NCC, applies only to guarantors. Mercantile’s
of the latter.” position that the aforesaid provision applies equally to sureties
fails to appreciate the fundamental distinctions between the
RULING: respective liabilities of a guarantor and a surety. A surety is an
Section 4, Chapter 3, Title I, Book IV of the Civil Code states the insurer of the debt, whereas a guarantor is an insurer of the
law on joint and several obligations. Under Art. 1207 thereof, solvency of the debtor. A surety undertakes directly for the
when there are two or more debtors in one and the same payment and is responsible at once of the principal debtor
obligation, the presumption is that the obligation is joint so that makes default, while a guarantor contracts to pay if, by the use
each of the debtors is liable only for a proportionate part of the of due diligence, the debt cannot be made out of the principal
debt. There is a solidary liability only when the obligation debtor.
expressly so states, when the law so provides or when the
nature of the obligation so requires. As an equivalent of a regular party to the undertaking, a surety
becomes liable to the debt and duty of the principal obligor even
Because the promissory note involved in this case expressly without possessing a direct or personal interest in the obligations
states that the three signatories therein are jointly and severally nor does he receive any benefit therefrom. Hence, Mercantile is
liable, any one, some or all of them may be proceeded against not released from its obligation. Article 2080, NCC does not
for the entire obligation. The choice is left to the solidary creditor apply in a contract of suretyship.
to determine against whom he will enforce collection.
Consequently, the dismissal of the case against Judge
Pontanosas may not be deemed as having discharged petitioner CARODAN vs. CA
from liability as well. As regards to Naybe, suffice it to say that GR no. 210542, February 24, 2016
the court never acquired jurisdiction over him. Petitioner,
therefore, may only have recourse against his co-makers, as FACTS:
provided by law. Barbara and Rebecca executed and delivered a Promissory Note
to China bank wherein they promised to jointly and severally pay
P2.8Million. As security, Barbara, Rebecca and Rosalina
MERCANTILE INSURANCE vs. DMCI-LAING executed a (1) Real Estate Mortgage over Rosalina’s property,
CONSTRUCTION and (2) Surety Agreement, in favor of China Bank. When Barbara
GR no. 205007, September 16, 2019 and Rebecca failed to pay their loan, it prompted china bank to
institute an extrajudicial foreclosure proceedings on the
FACTS: mortgaged property but the sale only realized P1.5Million and
Rockwell Land Corp (Rockwell) entered into an agreement with left a deficiency of P365,000. China Bank prayed to the court for
DMCI-Laing Construction (DMCI) for the construction of the payment of the deficiency. In their defense, Barbara and
Condominium Towers in Makati City. Part of the agreement was Rebecca claimed that they entered into an agreement with
the appointment of Altech Fabrication as Rockwell’s Rosalina wherein they would equally split both the proceeds of
sub-contractor to DMCI for the supply and installation of glazed the loan and the corresponding obligation pertaining thereto.
aluminium and curtain walling. Altech secured a Performance
Bond from Mercantile Insurance for its scope of work in the Rosalina filed an Answer, alleging that when Barbara and
Project. As surety with Altech, Mercantile Insurance issued Rebecca paid half of the loan under the Promissory Note, the
Performance Bond in favor of Rockwell and DMCI for 90Million properties of Barbara covered by the mortgage were released by
Pesos. the bank from liability. Said cancellation illegally and unjustly
caused her property to absorb the risk of foreclosure.
Subsequently, DMCI called Altech’s poor progress and
52 CREDIT TRANSACTIONS
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ISSUE:
conditions specified in the credit. (MWSS vs.
W/N Rosalina is liable jointly and severally with Barbara and Daway, GR no. 160732, June 21, 2004)
Rebecca for the payment of China Bank’s claims.
RULING:
YES, Rosalina is liable as an accommodation mortgagor. An
accommodation mortgage is not necessarily void simply
because the accommodation mortgagor did not benefit from the
same. The validity of an accommodation mortgage is allowed
under Article 2085 of the New Civil Code which provides that
third persons who are not parties to the principal obligation may
secure the latter by pledging or mortgaging their own property.
An accommodation mortgagor, ordinarily, is not himself a
recipient of the loan, otherwise that would be contrary to his
designation as such.
However, apart from being an accommodation mortgagor,
Rosalina is also a surety. When Rosalina affixed her signature to
the Real Estate Mortgage as mortgagor and to the Surety
Agreement as surety which covered the loan transaction, she HOW STANDBY OF LETTER OF CREDIT WORK:
bound herself to be liable to China Bank in case the principal 1. As with any other trade transaction, an underlying
debtors, Barbara and Rebecca, failed to pay. surety does not
sale contract is agreed between the exporter
benefit Art. 2089, NCC, because as surety, she expressly waive
all rights to demand payment and to receive notice of
(seller) and importer (buyer). For the purpose of our
non-payment and protest, and agree that the securities may be example, the contract provides for settlement to be
substituted, withdrawn or surrendered at any time without notice made in an agreed manner and for the issuance of
to or consent by the Sureties. standby to act as security for the exporter in the
event of non-payment by the importer, despite the
exporter complying with the conditions of the
F. STANDBY LETTERS OF CREDIT: contract.
2. The importer applies to its bank for the issuance of
standby in favour of the exporter.
STANDBY LETTER OF CREDIT: 3. Assuming the bank is willing to proceed, e.g., a
- It is a legal document that guarantees a bank's credit facility exists for such issuance, the standby
commitment of payment to a seller in the event that is issued and advised through a bank in the country
the buyer–or the bank's client–defaults on the of the exporter. At this point, the exporter is
agreement. referred to as the beneficiary of the standby, and
- A standby letter of credit helps facilitate the importer is referred to as the applicant.
international trade between companies that don't 4. The standby is advised to the beneficiary. If
know each other and have different laws and confirmation has been requested, and added, this
regulations. will form part of the advice that is sent to the
- Although the buyer is certain to receive the goods beneficiary.
and the seller certain to receive payment, a SLOC
doesn't guarantee the buyer will be happy with the At this point, the beneficiary should ensure that the
goods. A standby letter of credit can also be conditions of the standby reflect suitable security for it to
abbreviated SBLC. proceed to perform under the contract. The standby is held
by them as security, in the event it becomes necessary to
DIFFERENCE BETWEEN GUARANTY AND STANDBY make a claim thereunder.
LETTER OF CREDIT:
- The concept of guarantee vis--vis the concept of an For example, the standby should (a) be for the amount that
irrevocable letter of credit are inconsistent with may become due under the sale contract; (b) have an expiry
each other. The guarantee theory destroys the date that extends beyond the completion of the contractual
independence of the banks responsibility from the terms, including any period in which the applicant would be
contract upon which it was opened and the nature required to pay by the agreed means; and (c) clearly indicate
of both contracts is mutually in conflict with each the document(s) that is/are to be presented in order to
other. In contracts of guarantee, the guarantors demand payment thereunder.
obligation is merely collateral and it arises only
upon the default of the person primarily liable. On
the other hand, in an irrevocable letter of credit, the MWSS vs. DAWAY
bank undertakes a primary obligation. We have GR no. 160732, June 21, 2004
also defined a letter of credit as an engagement by FACTS:
a bank or other person made at the request of a MWSS granted Maynilad, under a Concession Agreement, a
customer that the issuer shall honor drafts or other 20-year period to manage, operate, repair, decommission and
demands of payment upon compliance with the refurbish the existing MWSS water delivery and sewerage
services in the West Zone Service Area, for which Maynilad
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undertook to pay the corresponding concession fees on the
dates agreed upon in the said agreement which consists of
payments of MWSS’s foreign loans. To secure performance, IV. REAL MORTGAGE
Maynilad was required to put up a bond, bank guarantee or
(Arts. 2065-2092, NCC)
other security acceptable to MWSS.
In compliance, Maynild arranged for a 3-year facility with a
number of foreign banks, led by Citicorp International, for the
issuance of an Irrevocable Standby Letter of Credit in the A. DEFINITION OF REAL MORTGAGE:
amount of US120,000,000 in favor of MWSS for the full and
prompt performance of Maynilad’s obligations to MWSS.
Sometime in September 2000, Maynilad requested MWSS for a WHAT IS A REAL MORTGAGE?
mechanism by which it hoped to recover the losses it had - A contract whereby the debtor secures to the
allegedly incurred and would be incurring as a result of the creditor the fulfillment of a principal obligation
depreciation of PH Peso against US Dollar. Failure to get what it (specially subjecting to such security immovable
desired, Maynilad issued a Forced Majeure Notice and property or real rights over immovable property)
unilaterally suspended the payment of the concession fees.
which obligation shall be satisfied with the
Since MWSS could not agree, Maynilad referred the matter to
the Appeals panel for arbitration. This resulted in the parties proceeds of the sale of said property or rights in
agreeing to an amended Agreement (Amendment no. 1) which case the said obligation is not complied with at the
provided for a formula that would all Maynilad to recover foreign time stipulated. (p.437, De Leon, Credit
exchange losses it had incurred or would incur. However, MWSS Transactions, 2021)
failed to comply with the Agreement and Amendment no. 1 and
the matter was brought again with the Appeals Panel in which ESSENCE OF THE CONTRACT OF REAL MORTGAGE:
the latter ruled that there was no Event of Termination as defined - The property has been identified or set apart from
under the Concession Agreement and, therefore, Maynilad
the mass of property of the debtor-mortgagee as
should pay the concession fees that had fallen due.
security for fulfilling his obligation, if default of
Thereafter, MWSS, submitted a written notice to Citicorp payment occurs. (China Banking Corporation vs.
International, as agent for the participating banks, that by virtue CA, 265 SCRA 327)
of Maynilad’s failure to perform its obligations under the
Agreement, it was drawing on the Irrevocable Standby Letter of PARTIES TO THE CONTRACT OF REAL MORTGAGE:
Credit and thereby demanded payment in the amount of almost - The mortgagor and the mortgagee are the parties
USD100,000,000. to the contract of mortgage.
- The mortgagor need not be the debtor. However,
Prior to this, Maynilad had filed a petition for rehabilitation before
the RTC-QC which issued a Stay Order prohibiting MWSS from the mortgagor must be the absolute owner of the
making any payment of its liabilities. thing mortgaged, and have free disposal of his
property, and, in the absence thereof, the
ISSUE: mortgagor be legally authorized for the purpose.
W/N the rehabilitation court acted in excess of its authority or (Art. 2085, NCC)
jurisdiction when it enjoined MWSS from seeking the payment of
the concession fees from the banks that issued the Irrevocable OBJECT/SUBJECT MATTER IN THE CONTRACT OF
Standby Letter of Credit in its favor and for the account of
MORTGAGE:
Maynilad.
1. Immovables;
RULING: 2. Alienable real rights in accordance with the
YES, Sec. 6(b), Rule 4, Interim Rules on Corporate laws,imposed upon immovables. (Art. 2124, NCC);
Rehabilitation, does not enjoin the enforcement of all claims - Example: Buildings on Lands, Trees. (see
against guarantors and sureties, but only those claims against Art. 415, NCC)
guarantors and sureties who are not solidarily liable with the 3. Movables may be the object of a chattel mortgage:
debtor. This prohibition does not to MWSS and that the
participating banks’ obligation are solidary with Maynilad in that
FUTURE PROPERTIES AS OBJECT OF MORTGAGE:
it is a primary, direct, definite and an absolute undertaking to pay
and is not conditioned on the prior exhaustion of the debtor’s ● General Rule: Future property cannot be object of a
assets. contract of mortgage. (Art. 2085(2), NCC)
● Exception: By operation of law, a lien will extend to
The terms of the Irrevocable Standby Letter of Credit do not natural accessions, improvements, growing fruits, rents
show that the obligations of the banks are not solidary with or income, notwithstanding the fact that they may not be
those of Maynilad. existing at the time of the constitution of the mortgage.
(Art. 2127, NCC)
STATUS OF MORTGAGE EXECUTED PRIOR TO THE
PERFECTION OF PRINCIPAL OBLIGATION:
- It is not necessary that any consideration should
pass at the time of the execution of the contract of
real mortgage. It may either be a prior or
subsequent matter. but when the consideration is
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subsequent to the mortgage, the mortgage can Catapang. Without Redentor’s knowledge and consent, Lipa
take effect only when the debt secured by it is Bank convinced Casiana to sign a Promissory Note for a
created as a binding contract to pay. And when P270,000 loan and a Deed of R.E.M. over the subject property
there is partial failure of consideration, the for P1,440,000.
mortgage becomes unenforceable to the extent of
such failure. Where the indebtedness actually ISSUE:
owing to the holder of the mortgage is less than the W/N the promissory note and deed of R.E.M. entered between
Casiana and Lipa Bank are valid and binding contracts.
sum named in the mortgage, the mortgage cannot
be enforced for more than the actual sum due.
RULING:
(Central Bank vs. CA, GR no. L-45710, oCTOBER NO, There was no meeting of the minds as to the promissory
3, 1985) note and Deed of R.E.M. In the instant case, the contract of loan
and its accessory contract of mortgage as contained in the PN
and Deed of R.E.M. were entered into without the consent of
B. ESSENTIAL REQUISITES Casiana and were absolutely simulated by Lipa Bank, making
OF A REAL MORTGAGE: the same void ab initio. The evidence revealed that when Lipa
Bank’s representative asked Casiana to sign the aforesaid
documents, he openly misrepresented the very substance, tenor,
ESSENTIAL REQUISITES TO CONTRACT OF PLEDGE and purpose of these documents, taking advantage of Casiana’s
AND MORTGAGE: lack of education and failure to understand English. this
1. They (pledge and mortgage) may be constituted to establishes the failure to agree as to the subject matter of the
secure the fulfillment of a principal obligation; aforesaid documents rendering the PN and deed of R.E.M. null
2. The pledgor or mortgagor be the absolute owner of and void.
the thing pledged or mortgaged;
3. That the persons constituting the pledge or
HOW SECURITY IS SATISFIED:
mortgage have the free disposal of their property, - When the principal obligation becomes due, the
and in the absence thereof, that they be legally things in which the pledge or mortgage consists
authorized for the purpose (Art. 2085, NCC)
may be alienated for the payment to the creditor.
(Art. 2087, NCC)
ADDITIONAL REQUISITES OF THE CONTRACT OF
MORTGAGE:
PACTUM COMMISSORIUM:
a. The mortgage must be subjected to the condition
- The Creditor cannot appropriate the things given by
that when the principal obligation becomes due,
way of pledge or mortgage, or dispose of them.
the collateral may be alienated for payment to the Any stipulation to the contrary is null and void. (Art.
creditor. (Art. 2087, NCC); 2088, NCC)
b. The mortgage must be recorded in the Registry of
Deeds (Art. 2125, NCC).
ELEMENTS OF PACTUM COMMISSORIUM:
- NOTE: If the instrument is not recorded,
1. There should be a mortgage wherein a property is
the mortgage is nevertheless binding
mortgaged by way of security for the payment of
between the parties. (Art. 2125, NCC)
the principal obligation; and
c. Consent; Object; Consideration. (Art. 1318, NCC)
2. There should be a stipulation for an automatic
appropriation by the creditor of the thing
a. Acts as a Security of a Principal Obligation: mortgaged in the event of non-payment of the
principal obligation within the stipulated period. (A.
Francisco Realty vs. CA, GR no. 125055, October
PRINCIPAL OBLIGATIONS SECURED: 30, 1998)
- The provisions of Article 2052 are applicable to a
pledge or mortgage. (Art. 2086, NCC)
- The contract of pledge or mortgage may secure all A. FRANCISCO REALTY vs. CA
kindness of obligations, be they pure of subject to GR no. 125055, October 30, 1998
a suspensive or resolutory condition. (Art. 2091,
FACTS:
NCC) A. Francisco Realty granted a loan of P7.5 Million to Sps.
Javillonar wherein the latter executed a promissory note, a deed
CATAPANG vs. LIPA BANK of mortgage over their property and a deed of sale of the
GR no. 240645, January 27, 2020 mortgaged property in favor of the mortgagee (A. Francisco
Realty). The promissory note expressly provides that upon
FACTS: “failure of the Mortgagor (Sps. Javillonar) to pay the interest
Upon the foreclosure of the mortgage of Redentor’s parents, without prior arrangement with the Mortgagor (Francisco Realty),
Lipa Bank offered to sell the property to Redentor for full possession of the property will be transferred and the deed
P1,500,000. Lipa Bank executed a Sales Contract with Redentor, of sale will be registered.” For this purpose, the owner’s
requiring him to provide a P400,000 downpayment under signing duplicate TCT was delivered to Francisco Realty.
but only P200,000 was paid by Redentor. In order to secure the
complete amount of the downpayment, Redentor submitted a ISSUE:
parcel of land registered in the name of Gregoria and Casiana W/N the contractual documents in this case constitutes Pactum
Commissorium.
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b. Mortgagor must be the Absolute Owner:
RULING:
YES, A mortgagee’s mere act of registering the mortgaged
property in his own name upon the mortgagor’s failure to ABSOLUTE OWNER:
redeem the property amounted to the exercise of the privilege of - The pledgor or mortgagor be the absolute owner of
a mortgagee in a pactum commissorium. In the case at bar, the the thing pledged or mortgaged. (Art. 2085, NCC)
stipulations in the promissory notes providing that , upon failure
of Sps. Javillonar to pay interest, ownership of the property
would be automatically transferred to Francisco Realty and the VDA. DE BAUTISTA vs. MARCOS
deed of sale in its favor would be registered, are in the GR no. L-17072, October 31, 1961
substance a pactum commissorium. The subject transaction
being void, the registration of the deed of sale, by virtue of which W/N a mortgagee may foreclose a mortgage on a piece of land
Francisco Realty was able to obtain TCT must also be declared covered by a free patent where the mortgage was executed
void. before the patent was issued and is sought to be foreclosed
within 5 years from its issuance.
BUSTAMANTE vs. ROSEL The right of plaintiff-appellee to foreclose her mortgage on the
GR no. 126800, November29, 1999 land in question depends on whether she could take said land
within the prohibitive period of five years from the issuance of
FACTS: defendants' patent for the satisfaction of the indebtedness in
Petitioner entered into a loan agreement with the respondent question, but on whether the deed of mortgage Exhibit "A" is at
wherein the former as the borrower and the latter as the lender. all valid and enforceable, since the land mortgaged was
The loan was secured by a parcel of land of the petitioner as a apparently still part of the public domain when the deed of
collateral. In their agreement, it was stated that in the event that mortgage was constituted. As it is an essential requisite for the
if petitioner herein fails to pay, the respondent has the option to validity of a mortgage that the mortgagor be the absolute owner
buy or purchase the collateral. When the loan was about to of the thing mortgaged (Art. 2085), the mortgage here in question
mature, respondents proposed to buy the collateral land on the is void and ineffective because at the time it was constituted, the
amount stated in the loan agreement. Petitioner herein refuse to mortgagor was not yet the owner of the land mortgaged and
sell and to execute a Deed of Absolute sale. When petitioner could not, for that reason, encumber the same to the
tendered payment on the loan, respondent refuse to receive and plaintiff-appellee. Nor could the subsequent acquisition by the
demand the sale of the land. Rosel filed a complaint in the RTC mortgagor of title over said land through the issuance of a free
which rendered a decision denying the prayer for the issuance of patent validate and legalize the deed of mortgage under the
the deed sale. However, upon appeal to the Court of Appeals, doctrine of estoppel (cf. Art. 1434, New Civil Code, since upon
the said decision was reversed. Hence, this petition. the issuance of said patient, the land in question was thereby
brought under the operation of the Public Land Law that
ISSUE: prohibits the taking of said land for the satisfaction of debts
W/N the stipulation in the loan contract was valid and contracted prior to the expiration of five years from the date of
enforceable. the issuance of the patent (sec. 118, C.A. No. 141). This
prohibition should include not only debts contracted during the
RULING: five-year period immediately preceding the issuance of the
NO, Contracts have the force of law between the contracting patent but also those contracted before such issuance, if the
parties and must be complied with in good faith. However, purpose and policy of the law, which is "to preserve and keep in
certain exceptions to the rule, specifically Article 1306 of the Civil the family of the homesteader that portion of public land which
Code, which provides that “The contracting parties may the State has gratuitously given to him" is to be upheld.
establish such stipulations, clauses, terms and conditions as
they may deem convenient, provided they are not contrary to
law, morals, good customs, public order, or public policy.” STATE INVESTMENT HOUSE, INC. vs. CA
GR no. 115548, March 5, 1998
A scrutiny of the stipulation of the parties reveals a subtle
intention of the creditor to acquire the property given as security As a general rule, where there is nothing in the certificate of title
for the loan. This is embraced in the concept of pactum to indicate any cloud or vice in the ownership of the property, or
commissorium, which is proscribed by law. The elements of any encumbrance thereon, the purchaser is not required to
pactum commissorium are as follows: (1) there should be a explore further than what the Torrens Title upon its face indicates
property mortgaged by way of security for the payment of the in quest for any hidden defect or inchoate right that may
principal obligation, and (2) there should be a stipulation for subsequently defeat his right thereto. This rule, however, admits
automatic appropriation by the creditor of the thing mortgaged in of an exception as where the purchaser or mortgagee, has
case of non-payment of the principal obligation within the knowledge of a defect or lack of title in his vendor, or that he was
stipulated period. aware of sufficient facts to induce a reasonably prudent man to
inquire into the status of the title of the property in litigation. In
In this case, the intent to appropriate the property given as this case, petitioner was well aware that it was dealing with
collateral in favor of the creditor appears to be evident, for the SOLID, a business entity engaged in the business of selling
debtor is obliged to dispose of the collateral at the pre-agreed subdivision lots. In fact, the OAALA found that at the time the lot
consideration amounting to practically the same amount as the was mortgaged, respondent State Investment House Inc., [now
loan. In effect, the creditor acquires the collateral in the event of petitioner] had been aware of the lot's location and that the said
non-payment of the loan. This is within the concept of pactum lot formed part of Capital Park/Homes Subdivision. In Sunshine
commissorium. Such stipulation is void. Finance and Investment Corp. v. Intermediate Appellate Court,
the Court noting petitioner therein to be a financing corporation,
deviated from the general rule that a purchaser or mortgagee of
a land is not required to look further that what appears on the
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face of the Torrens Title which applies in this case because
3. Debts and obligations contracted by either spouse
petitioner admits of being a financing institution. We take judicial without the consent of the other to the extent that
notice of the uniform practice of financing institutions to the family may have been benefited;
investigate, examine and assess the real property offered as 4. All taxes, liens, charges and expenses, including
security for any loan application especially where, as in this case, major or minor repairs, upon the community
the subject property is a subdivision lot located at Quezon City, property;
M.M. It is a settled rule that a purchaser or mortgagee cannot 5. All taxes and expenses for mere preservation made
close its eyes to facts which should put a reasonable man upon
during marriage upon the separate property of
his guard, and then claim that he acted in good faith under the
either spouse used by the family;
belief that there was no defect in the title of the vendor or
mortgagor. Petitioner's constructive knowledge of the defect in 6. Expenses to enable either spouse to commence or
the title of the subject property, or lack of such knowledge due to complete a professional or vocational course, or
its negligence, takes the place of registration of the rights of other activity for self-improvement;
respondents-spouses. Respondent Court thus correctly ruled 7. Ante-nuptial debts of either spouse insofar as they
that petitioner was not a purchaser or mortgagee in good faith; have redounded to the benefit of the family;
hence petitioner can not solely rely on what merely appears on 8. The value of what is donated or promised by both
the face of the Torrens Title.
spouses in favor of their common legitimate
children for the exclusive purpose of commencing
or completing a professional or vocational course
CRUZ vs. BANCOM FINANCE CORP.
or other activity for self-improvement;
GR no. 147788, March 19, 2002
9. Ante-nuptial debts of either spouse other than
On the question of who has a preferential right over the property, those falling under paragraph (7) of this Article, the
the long-standing rule, as provided by Article 2085 of the Civil support of illegitimate children of either spouse,
Code, is that only the absolute owner of the property can and liabilities incurred by either spouse by reason
constitute a valid mortgage on it. In case of foreclosure, a sale of a crime or a quasi-delict, in case of absence or
would result in the transmission only of whatever rights the seller insufficiency of the exclusive property of the
had over of the thing sold. debtor-spouse, the payment of which shall be
considered as advances to be deducted from the
In the instant case, the two Deeds of Sale were absolutely
share of the debtor-spouse upon liquidation of the
simulated; hence, null and void. Thus, they did not convey any
rights that could ripen into valid titles. Necessarily, the community; and
subsequent real estate mortgage constituted by Sulit in favor of 10. Expenses of litigation between the spouses unless
respondent was also null and void, because the former was not the suit is found to be groundless. (Art. 94, Family
the owner thereof. There being no valid real estate mortgage, Code)
there could also be no valid foreclosure or valid auction sale,
either. At bottom, respondent cannot be considered either as a ADMINISTRATION OF THE CONJUGAL PARTNERSHIP
mortgagee or as a purchaser in good faith. This being so,
OF GAINS:
petitioners would be in the same position as they were before
- The administration and enjoyment of the conjugal
they executed the simulated Deed of Sale in favor of Sanchez.
They are still the owners of the property. partnership shall belong to both spouses jointly. In
case of disagreement, the husband’s decision shall
prevail, subject to recourse to the court by the wife
c. Mortgagor must have Free Disposal of Property: for proper remedy, which must be availed of within
five years from the date of the contract
implementing such decision.
FREE DISPOSAL OF THE MORTGAGOR: - In the event that one spouse is incapacitated or
- The persons constituting the pledge or mortgage otherwise unable to participate in the
have the free disposal of their property, and in the administration of the conjugal properties, the other
absence thereof, that they be legally authorized for spouse may assume sole powers of administration.
the purpose. (Art. 2085, NCC) These powers do not include disposition or
encumbrance without authority of the court or the
LIABILITY OF THE ABSOLUTE COMMUNITY OF written consent of the other spouse. In the absence
PROPERTY: of such authority or consent, the disposition or
1. The support of the spouses, their common encumbrance shall be void. However, the
children, and legitimate children of either spouse; transaction shall be construed as a continuing offer
however, the support of illegitimate children shall on the part of the consenting spouse and the third
be governed by the provisions of this Code on person, and may be perfected as a binding
Support; contract upon the acceptance by the other spouse
2. All debts and obligations contracted during the or authorization by the court before the offer is
marriage by the designated administrator-spouse withdrawn by either or both offerors. (Art. 124,
for the benefit of the community, or by both Family Code)
spouses, or by one spouse with the consent of the
other;
C. CHARACTERISTICS OF A REAL MORTGAGE:
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CHARACTERISTICS OF A REAL MORTGAGE
CONTRACT: ● However, if it was agreed that the Makati property
- It is an accessory and subsidiary contract. was given to secure the payment of P15,000,000
- Nominate contract because it has a name under and the Taguig property, the balance of
the Civil Code. P5,000,000 and A (or his heir W) pays P15,000,000
A can demand the return of the Makati property.
CREATES REAL RIGHTS:
- The mortgage directly and immediately subjects
2. Where only portion of loan was released:
the property to the fulfillment of the obligation for
- Since the rule of Individuality presupposes
whose security it was constituted, regardless
several heirs of the debtor or creditor, it
whoever the possessor may be. (Art. 2126, NCC)
does not apply to a situation where out of
- A registered mortgage creates a right in rem (a real
an P80,000 loan agreement entered into
right) a lien inseparable from the property
by a bank and a borrow, only P17,000 was
mortgaged, which is enforceable against the whole
released, such that the real estate
world, affording specific security for the satisfaction mortgage on the loan became
of a debt. (p.458, De Leon, Credit Transaction,
unenforceable to the extent of P63,000
2021)
(78.75%) and subsists as a security only
for the P17,000 (21.25%) debt. (Central
CONCEPT OF INDIVISIBILITY OF REAL MORTGAGE:
Bank of the Philippines vs. CA, 139 SCRA
● General Rule: A mortgage is indivisible, even though the
46)
debt may be divided among the successors in interest of
the debtor or of the creditor. (Art. 2089, NCC) 3. Where there was failure of consideration:
- The indivisibility of a mortgage is not affected by - Rule on Indivisibility does not apply where
the fact that the debtors are not solidarily liable. there was failure of consideration on the
(Art. 2090, NCC) part of the mortgagee as where the
- The debtor's heir who has paid a part of the debt mortgagee (bank) took over the
cannot ask for the proportionate extinguishment of management of the borrowing corporation
the pledge or mortgage as long as the debt is not as one condition for granting the loan, and
completely satisfied. (Art. 2089, NCC) the corporation was led to bankruptcy
- Neither can the creditor's heir who received his through mismanagement which defeats
share of the debt return the pledge or cancel the the very purpose of the loan, for it is as if
mortgage, to the prejudice of the other heirs who the loan was never delivered. (Rose
have not been paid. (Art. 2089, NCC) Packing vs. CA, 167 SCRA 309)
● Exceptions:
1. Where each one of several things guarantees 4. Where there is no debtor-creditor relationship:
determinate portion of credit:
- Indivisibility arises only when there is a
- Where there are several things given in
debtor-creditor relationship, it is not
mortgage and each one of them
applicable to the right of redemption of an
guarantees only a determinate portion of accommodation mortgagor and his
the credit, Indivisibility of Real Mortgage
assignee with respect to whom his
does not apply. (See Art. 2089 par. 3-4,
relationship is not present. (Belo vs. PNB,
NCC)
353 SCRA 350)
Example: A borrowed from B P20,000,000 and to
guarantee payment, A mortgaged his Makati property 5. Where the benefit of indivisibility is waived:
worth P15,000,000 and his Taguig property worth - Indivisibility is not an essential
P5,000,000. characteristic of a mortgage, hence the
creditor can waive the benefits thereof.
● If A pays P15,000,000, A cannot ask for the return
of the Makati property because both the Makati
property and the Taguig property are given to D. PROMISE TO CONSTITUTE A MORTGAGE:
secure payment of the entire obligation of
P20,000,000.
- This is because the mortgage is indivisible. PROMISE TO CONSTITUTE A MORTGAGE:
B may cause the sale of either or both for - A promise to constitute a pledge or mortgage
the payment of his credit. The same is true gives rise only to a personal action between the
if A dies leaving W and X as his heirs and W
contracting parties, without prejudice to the
pays P15,000,000 to B.
criminal responsibility incurred by him who
● If the creditors are B and C, and A pays B defrauds another, by offering in pledge or mortgage
P15,000,000 B cannot return the Makati property as unencumbered, things which he knew were
to the prejudice of C who has not received his subject to some burden, or by misrepresenting
share. The same is true if B is the only creditor and himself to be the owner of the same. (Art. 2092,
he dies leaving Y and Z as his heirs and A pays Y NCC)
P15,000,000.
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- The creditor can enforce an agreement to spouses jointly. However, these powers do not
constitute a mortgage with the right to recover the include disposition or encumbrance without
indebtedness they being in no wise inconsistent authority of the court or the written consent of the
with each other. (Laplana vs. Garchitorena Chereau, other spouse. In the absence of such authority or
48 Phil. 163) consent, the disposition or encumbrance shall be
void. (Arts. 96 & 124, Family Code)
LAPLANA vs. GARCHITORENA CHEREAU
GR no. L-23663, October 17, 1925 Section 18, PD 957:
- No mortgage on any unit or lot shall be made by
FACTS: the owner or developer without prior written
Mariano Garchitorena executed a public document admitting approval of the National Housing Authority (now
that he and his sister are indebted to Josefa Laplana for HLURB). Such approval shall not be granted
P25,000. Mariano obligated himself to pay Josefa within 1 year, unless it is shown that the proceeds of the
parable within the first 15 days of each month. In the same mortgage loan shall be used for the development of
document, it was declared that Mariano were the owners of a
the condominium or subdivision project and
large estate (Hacienda Salvacion) wherein its registration is
pending with CFI Camarines. It was agreed that as soon as effective measures have been provided to ensure
Mariano obtained Torrens Title of the Hacienda, a second such utilization. The loan value of each lot or unit
mortgage thereon shall be executed in order to pay his debt to covered by the mortgage shall be determined and
Josefa. the buyer thereof, if any, shall be notified before the
release of the loan. The buyer may, at his option,
When the CFI issued the Certificate of Title of the Hacienda, pay his installment for the lot or unit directly to the
instead of constituting a second mortgage thereon in favor of mortgagee who shall apply the payments to the
Josefa, he mortgaged it to Bartolome Martin to secure another
corresponding mortgage indebtedness secured by
loan. Upon discovery, Josefa filed an action before the court to
compel Mariano to execute a mortgage and to recover the the particular lot or unit being paid for, with a view
amount she claimed to enabling said buyer to obtain title over the lot or
unit promptly after full payment thereto.
ISSUE:
W/N Josefa may compel Mariano to execute the mortgage
UNITED OVERSEAS BANK vs HLURB
RULING: GR no. 182133, June 23, 2015
YES, The terms of the contract explicitly show that a mortgage
should be created in favor of Josefa on the Hacienda as soon as The prior approval requirement is intended to protect buyers of
a Torrens title should be secured, and Mariano is obligated to condominium units from fraudulent manipulations perpetrated by
execute a mortgage in favor of Josefa immediately upon unscrupulous condominium sellers and operators, such as their
obtaining a title to any part thereof. SC agrees that Mariano failure to deliver titles to the buyer or titles to the buyer or titles
evaded the spirit of the agreement by creating a second free from lien and encumbrances. This is pursuant to the intent
mortgage in favor of Bartolome Martin over the same property. of PD no. 957 to protect hapless buyers from the unjust
practices of unscrupulous developers which may constitute
It is that a promise to constitute a mortgage gives rise only to a mortgages over condominium projects sanns the knowledge of
personal obligation between the contracting parties and creates the former and the consent of the HLURB.
no real right in the property, but the agreement to constitute the
mortgage is lawful and such stipulation can be enforced by the
2. EQUITABLE MORTGAGES:
creditor, being in no wise inconsistent with the right to recover
the indebtedness.
Concept of Equitable Mortgage:
- When the mortgage lacks the proper formalities or
requisites of a mortgage required by law but,
E. TYPES OF MORTGAGES:
nevertheless, reveals the intention of the parties to
burden real property as a security for an existing
KINDS OF REAL MORTGAGE: debt, and contains nothing impossible or contrary
a. Voluntary to law.
b. Equitable
Instances of Equitable Mortgages:
1. VOLUNTARY MORTGAGES: 1. When the price of a sale with right to repurchase is
unusually inadequate;
Concept of Voluntary/Express Mortgage: 2. When the vendor remains in possession as lessee
- Where the mortgage is agreed to between the or otherwise;
parties or constituted by the will of the owner of the 3. When upon or after the expiration of the right to
property on which it is created. (p.436, De Leon, repurchase another instrument extending the
Credit Transaction. 2021) period of redemption or granting a new period is
executed;
Family Home Can Be Mortgage: 4. When the purchaser retains for himself a part of the
- The administration and enjoyment of the purchase price;
community/conjugal property shall belong to both
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5. When the vendor binds himself to pay the taxes on GR no. 97401 estate mortgage to accessions and accessories
the thing sold; Dec. 6, 1995 found on the hypothecated property when the
6. In any other case where it may be fairly inferred secure obligation becomes due. The law
that the real intention of the parties is that the presumes that the ownership of such
accessions and accessories also belongs to the
transaction shall secure the payment of a debt or mortgagor as the owner of the principal.
the performance of any other obligation. (Art. 1602,
NCC) In respect of the lease on the foreclosed
property, the buyer at the foreclosure sale merely
succeeds to the rights and obligations of the
Note: In any of the foregoing cases, any money, fruits, mortgagor subject to the possible termination.
or other benefit to be received by the vendee as rent or
otherwise shall be considered as interest which shall be PNB vs. Sps. Rent is a civil fruit that belongs to the owner of
Maranon the property producing it by right of accession.
subject to the usury laws. (Art. 1602, NCC)
GR no. 189316 The rightful recipient of the disputed rent in this
June 1, 2013 case should be thus the owner of the lot at the
time the rent accrued. It is beyond question that
Presumption of Equitable Mortgage: spouses Maranon never lost ownership over the
- In case of doubt, a contract purporting to be a sale subject lot, and that technically, there is no
with right to repurchase shall be construed as an juridical tie created by a valid mortgage contract
that binds PNB to the subject lot because the
equitable mortgage. (Art. 1603, NCC) mortgagors Montealegre were not the true
owners. PNB’s lien as a mortgagee in good faith
Remedy in Case of Equitable Mortgage: pertains to the subject lot alone and not on the
erected building which was not foreclosed and
- In the cases referred to in articles 1602 and 1604,
still remained to be a property of Maranon. Thus,
the apparent vendor may ask for the reformation of PNB’s claim for the rents paid by the tenants has
the instrument. (Art. 1605, NCC) no basis.
F. EXTENT OF MORTGAGE: MORTGAGE WITH A DRAGNET CLAUSE (OR BLANKET
CLAUSE):
- As a rule, an action to foreclosure a mortgage must
NOTE: Art. 2127, NCC has been repealed by RA 11057 be limited to the amount mentioned in the
(Personal Property Security Act). mortgage but the amounts named as consideration
in a contract of mortgage do not limit the amount
for which the mortgaged may stand as security, if
RATIONALE OF ART. 2127, NCC:
from the 4 corners of the instrument the intent to
- Art. 2127 is predicated on the presumption that the
ownership of accessions and accessories also secure future loans or advancements and other
indebtedness in addition to those already obtained
belongs to the mortgagor as the owner of the
or specified in the contract, can be gathered.
principal. It is an indispensable requisite of a valid
(Arangco vs. Baloso, 49 SCRA 296)
real estate mortgage that the mortgagor be the
- ExampleS:
absolute owner of the encumbered property.
- “for the payment of loan of P20,000 and
(Castro vs. CA, 321 Phil. 262)
such other loans or other advances
already obtained or still to be obtained by
EXTENT OF MORTGAGE:
the mortgagors as makers … “; or
1. Mortgage extends to the Natural Accessions,
- “ ….. as well as those that the mortgagee
Improvements, Growing Fruits and the Rents or
may extend to the mortgagor”
Income not yet received when the obligation
- A “dragnet clause” operates as a convenience and
becomes due:
accommodation to the borrowers as it makes
2. Mortgage extend to the Amount of Indemnity
available additional funds without their having to
granted or owing to the proprietor from the insurers
execute additional security documents, saving
of the property mortgage, or in virtue of
time, travel, loan closing costs, costs of extra-legal
expropriation for public use. (Art. 2127, NCC)
services, recording fees, etc., (Prudential Bank vs.
Alviar, 464 SCRA 353)
CASE TITLE: DOCTRINE:
CONSTRUCTION OF MORTGAGE WITH A DRAGNET
Sps. Paredes vs. CA Under Art. 2127, The mortgage extends to the CLAUSE:
GR no. 147074 improvements. Sps. Padres purchased their
July 15, 2005 house from MICC. Being an improvement on the - Such dragnet clause are “carefully scrutinized and
subject properties constructed by MICC, it is strictly construed” particularly where the mortgage
covered by MICC’s real estate mortgage contract is one of adhesion (Premiere Development
following the terms of its contract with Banco
Bank vvs. Central Surety, 579 SCRA 359)
Filipino and Art. 2127, NCC
- If the sole issue is where in the foreclosure of
Sps. Padres House should not be excluded from R.E.M., the penalties stipulated in 2 promissory
the auction sale of the mortgaged properties.
notes secured by the mortgage may be charged
against the mortgagors as part of the sums
Castro vs. CA Art. 2127, NCC, extends the effect of the real
secured although the mortgage contract does not
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mention the said penalties, it was held that subsequent advance refers to the mortgage as
construing the silence or ambiguity against the providing security therefor.
Petitioner Bank, thus, no penalty was intended to
be included in the amount covered by the It was therefore improper for petitioner in this
case to seek foreclosure of the mortgaged
mortgage, and therefore, proceeding such penalty property because of non-payment of all the three
cannot be recovered on the foreclosure of the promissory notes. While the existence and
mortgage. (PBCom vs. CA, 253 SCRA 241) validity of the "dragnet clause" cannot be
denied, there is a need to respect the existence
- If by the plain terms of the mortgage evidence the of the other security given for PN BD#76/C-345.
intention of the mortgagor to secure a larger The foreclosure of the mortgaged property
amount, the action to foreclose may be for the should only be for the ₱250,000.00 loan covered
larger amount. In such case, the specific amount by PN BD#75/C-252, and for any amount not
covered by the security for the second
mentioned in the mortgage is not controlling. (lim promissory note. As held in one case, where
Julian vs. Lutero, 49 Phil. 703) deeds absolute in form were executed to secure
any and all kinds of indebtedness that might
subsequently become due, a balance due on a
CASE TITLE: DOCTRINE: note, after exhausting the special security given
for the payment of such note, was in the
absence of a special agreement to the contrary,
PBCom vs. CA The mortgage provision relied upon by the
GR no. 118552 petitioner is known in American jurisprudence as within the protection of the mortgage,
notwithstanding the giving of the special
February 5, 1996 a "dragnet" clause, which is specifically phrased
security. This is recognition that while the
to subsume all debts of past or future origin.
"dragnet clause" subsists, the security
Such clauses are "carefully scrutinized and
strictly construed.” specifically executed for subsequent loans must
first be exhausted before the mortgaged
property can be resorted to.
The mortgage contract is also one of adhesion
as it was prepared solely by the petitioner and
the only participation of the other party was the
affixing of his signature or "adhesion" thereto.
G. RIGHTS OF THE PARTIES:
Being a contract of adhesion, the mortgage is to
be strictly construed against the petitioner, the
party which prepared the agreement.
RIGHTS OF THE CREDITOR:
A reading, not only of the earlier quoted 1. To alienate or assign the mortgage credit to a third
provision, but of the entire mortgage contract person (whole or part) with the formalities required
yields no mention of penalty charges. Construing
this silence strictly against the petitioner, it can
by law. (Art. 2128, NCC)
fairly be concluded that the petitioner did not 2. May claim from third person (who is in possession
intend to include the penalties on the promissory of the mortgaged property) the payment of the part
notes in the secured amount. This explains the of the credit secured by the property which said
finding by the trial court, as affirmed by the Court
of Appeals, that "penalties and charges are not third person possesses, in the terms and with the
due for want of stipulation in the mortgage formalities which the law establishes. (Art. 2129,
contract.” NCC)
Indeed, a mortgage must sufficiently describe
the debt sought to be secured, which description STIPULATION REQUIRING MORTGAGEE’S CONSENT
must not be such as to mislead or deceive, and BEFORE ALIENATION OF PROPERTY:
an obligation is not secured by a mortgage - Under Art. 2130, NCC, a stipulation forbidding the
unless it comes fairly within the terms of the
mortgage. In this case, the mortgage contract owner from alienating the immovable mortgaged
provides that it secures notes and other shall be void. However, Art. 2130, NCC, does
evidences of indebtedness. Under the rule of absolutely prohibit the mortgagor from selling his
ejusdem generis, where a description of things of
a particular class or kind is "accompanied by
mortgaged property. A stipulation prohibiting the
words of a generic character, the generic words mortgagegor from selling his mortgaged property
will usually be limited to things of a kindred without the consent of the mortgagee practically
nature with those particularly enumerated. . . ."
gives the latter the sole prerogative to prevent the
penalty charge does not belong to the species of
obligations enumerated in the mortgage, hence, sale of the mortgaged property to a third party.
the said contract cannot be understood to (Litonjua vs. L&R Corp. GR no. 130722, December
secure the penalty. 9, 1999)
Prudential Bank vs. Mortgages given to secure future advancements
Adviar are valid and legal contracts and the amount
STIPULATION GRANTING RIGHT OF FIRST REFUSAL:
GR no. 150197 named as consideration in said contracts do not - Nothing wrong in a stipulation granting the
July 28, 2005 limit the amount for which the mortgage may mortgagee the right of first refusal over the
stand as security if from the 4 corners of the
mortgaged property if the mortgagor decides to
instrument the intent to secure future and other
indebtedness can be gathered. sell the same. the consideration for the
loan-mortgage may include the consideration for
Indeed, it has been held that in the absence of the right of first refusal.
clear, supportive evidence of a contrary
intention, a mortgage containing a "dragnet
- While the mortgage has every right to sell the
clause" will not be extended to cover future mortgaged property without securing the consent
advances unless the document evidencing the of the mortgagee, he has the obligation under a
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right of first refusal provision which is valid, to - An acceleration is a stipulation that upon the
notify the mortgagee of his intention to sell the mortgagor’s default, the whole sum remaining
property and give him priority over other buyers. A unpaid automatically becomes due and payable.
sale made in violation of mortgagee’s contractual 5. The power to foreclose a mortgage resides in the
right of first refusal is rescissible. The buyer is mortgagee. But once he has decided by filing a petition
presumed to have been notified thereof by the with the sheriff, the acts of the latter shall thereafter be
registration of the mortgage deed containing such governed by the mortgage law. (Asiatrust Development
stipulation, which equates to notice to the whole bank vs. Tuble, 677 SCRA 519);
world. (Litonjua vs. L&R Corp., Supra) 6. Once the proceeds have been applied to the payment
of the obligation, the debtor cannot anymore be
required to pay unless there is a deficiency between
H. FORECLOSURE OF REAL MORTGAGE:
the amount of the loan and the foreclosure sales price
because the obligation has been extinguished. (State
NATURE OF FORECLOSURE: investment House vs. CA, 215 SCR 734);
- In foreclosure, the mortgaged property is subjected 7. The statutory rule governing public notice of
to the proceedings for the satisfaction of the foreclosure sales must be strictly complied. Slight
obligation. As a result, payment is effected by deviations therefrom will invalidate the sale or render it
abnormal means whereby the debtor is forced by a at least voidable. (Tambunting vs. CA, 167 SCRA 16).
judicial proceeding to comply with the presentation
or to pay indemnity. Once the proceeds from the KINDS OF FORECLOSURE:
sale of the property are applied to the payment of a. Judicial Foreclosure; and
the obligation, the obligation is already b. Extrajudicial Foreclosure.
extinguished. (Asia Trust Development Bank vs.
Tuble, GR no. 183987, July 25, 2012)
a. Judicial Foreclosure:
- Foreclosure is the remedy available to the
mortgagee by which he subjects the mortgaged
property to the satisfaction of the obligation to NATURE OF JUDICIAL FORECLOSURE:
secure which the mortgage was given where the - When the mortgagee chooses the foreclosure of
mortgagor is in default in the payment of the the mortgage as a remedy, he enforces his lien by
obligation. (p.474, De Leon, Credit Transaction, the sale on foreclosure of the mortgaged property.
2021) The proceeds of the sale will be applied to the
satisfaction of the debt. With this remedy, he has a
EXERCISE OF THE RIGHT OF FORECLOSURE: prior lien on the property. In case of deficiency, the
- The mortgage can be foreclosed only when the mortgagee has the right to claim for the deficiency
debt remains unpaid at the time it is due, and the resulting from the price obtained in the sale of the
debtor has incurred default in the payment of his real property at public auction and the outstanding
obligation. (Selegna Management vs. UCPB, 489 obligation at the time of the foreclosure
SCRA 125) proceedings. (Caltex Phils. vs. IAC, GR no. 74730,
- The right of foreclosure cannot be exercised by any August 25, 1989)
person other than the creditor-mortgagee or his
assigns. (Borromeo vs. CA, 550 SCRA 269)
BANK OF AMERICA, NT vs. AMERICAN REALTY CORP.
GR no. 133876, December 29, 1999
ESSENTIAL FEATURES AND EFFECTS OF
FORECLOSURE: QUESTION: Does a mortgage-creditor waive its remedy to
1. As a rule, a demand before foreclosure is essential (Art. foreclose the real estate mortgage constituted over a third party
1169, NCC); mortgagor's property situated in the Philippines by filing an
2. When the principal obligation is not paid when due, the action for the collection of the principal loan before foreign
courts?
mortgagee has the right to foreclose the mortgage and
to have the property seized and sold to apply the
ANSWER: In our jurisdiction, the remedies available to the
proceeds to the payment of the principal obligation. mortgage creditor are deemed alternative and not cumulative.
(Commodity Financing, Co. vs. Jimenez, 91 SCRA 57); Notably, an election of one remedy operates as a waiver of the
3. Foreclosure must be limited to the amount mentioned other. For this purpose, a remedy is deemed chosen upon the
in the mortgage document. (Landrito, Jr. vs.. CA, 466 filing of the suit for collection or upon the filing of the complaint
SCRA 107); in an action for foreclosure of mortgage, pursuant to the
4. A mortgage contract may contain an acceleration provision of Rule 68 of the of the 1997 Rules of Civil Procedure.
clause. The failure of the mortgagor to pay any As to extrajudicial foreclosure, such remedy is deemed elected
by the mortgage creditor upon filing of the petition not with any
installment will trigger the activation of the acceleration
court of justice but with the Office of the Sheriff of the province
clause and give the mortgagee the right to foreclose where the sale is to be made, in accordance with the provisions
the mortgage against the contention of the prematurity, of Act No. 3135, as amended by Act No. 4118.
(Luzon Development Bank vs. Conquilla, 470 SCRA
533); In the case at bench, private respondent ARC constituted real
estate mortgages over its properties as security for the debt of
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the principal debtors. By doing so, private respondent subjected
their rights in the purchaser subject to such right of
itself to the liabilities of a third party mortgagor. Under the law, redemption as may be allowed by law. (Sec. 3, Rule 68)
third persons who are not parties to a loan may secure the latter 5. Execution of judgment - Upon the finality of the order
by pledging or mortgaging their own property. of confirmation or upon the expiration of the
redemption period allowed by law, the purchaser at the
Notwithstanding, there is no legal provision nor jurisprudence in auction shall be entitled to the possession of the
our jurisdiction which makes a third person who secures the property unless a third person is actually holding the
fulfillment of another's obligation by mortgaging his own
same adversely to the judgment obligor. The said
property, to be solidarily bound with the principal obligor. The
purchaser may secure a writ of possession, upon
signatory to the principal contract—loan—remains to be
primarily bound. It is only upon default of the latter that the motion, from the court which ordered the foreclosure.
creditor may have recourse on the mortgagors by foreclosing the (Sec. 3, Rule 68)
mortgaged properties in lieu of an action for the recovery of the - The proper remedy to seek the reversal of
amount of the loan. a judgement of foreclosure is to file an
appeal from the judgment itself or from the
order confirming the sale of the foreclosed
PROCEDURE:
real estate. (aGBADA VS. iNTER-uRBAN
developers, 389 SCRA 430)
6. Disposition or Application of proceeds of sale - The
proceeds of the shall be applied to the payment of the
following:
a. Costs of the sale;
b. Amounts due to the mortgagee;
c. Claims of junior encumbrancers or
persons holding subsequent mortgages in
the order of their priority; and
d. If there are any balances, it shall be paid
to the mortgagor or his authorized agent,
or to the person entitled to it. (Sec. 4, Rule
68)
7. Execution of Sheriff’s Certificate - In judicial
foreclosure, the execution and issuance of s sheriff’s
certificate marks the completeness of the foreclosed
mortgage. Absent thereof passes no title to the vendee.
(DBP vs. Zaragoza, 84 SCRA 668)
8. Registration - A certified copy of the final order
confirming the sale shall be registered in the registry of
deeds (LRA). (Sec. 7, Rule 68)
DEFICIENCY JUDGMENT:
- If upon the sale of any real property there be a
balance due to the plaintiff after applying the
proceeds of the sale, the court (upon motion) shall
render judgment against the defendant for any
such balance for which he may be personally liable
1. Judicial Action - mortgage foreclose judicially by
to the plaintiff, upon which execution may issue
bringing an action for foreclosure of mortgage with the
immediately if the balance is all due at the time of
court who has jurisdiction over the area where the real
property (or a portion thereof) is situated. (Sec. 1 & 4, the rendition of the judgment; otherwise, the
Rule 68); plaintiff shall be entitled to execution at such time
2. Order to Pay Mortgage Debt - If the court finds the as the balance remaining becomes due under the
terms of the original contract, which time shall be
complaint to be sufficient, it shall order the mortgagor
stated in the judgment. (Sec. 6, Rule 68)
to pay the mortgagee on the amount due on the
mortgage debt or obligation with interest within a
PRESCRIPTIVE PERIOD TO CLAIM DEFICIENCY
period or not less than 90 days but not more than 120
JUDGMENT:
days from entry of judgment. (Sec. 2, Rule 68);
- The action to recover a deficiency after foreclosure
3. Public Auction - if the mortgagor fails to pay the
mortgagee at the time fixed by the court, the latter prescribed after 10 years from the time the right of
(upon motion) shall order the property to be sold to the action accrues. (Art. 1144(2), NCC)
highest bidder at public auction, in a manner under
HOW SALE SHALL PROCEED IN CASE THE DEBT IS
Rule 39. (Sec. 3, Rule 68);
NOT ALL DUE:
4. Confirmation of Sale - The sale when confirmed by an
order of the court, also upon motion, shall operate to - If the debt for which the mortgage or encumbrance
divest the rights of all parties to the action and to vest was held is not all due as provided in the judgment
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as soon as a sufficient portion of the property has and the order confirming the sale shall be
been sold to pay the total amount and the costs registered and a brief memorandum thereof made
due, the sale shall terminate; and afterwards as by the registrar of deeds upon the certificate of
often as more becomes due for principal or interest title. In the event the property is redeemed, the
and other valid charges, the court may, on motion, deed of redemption shall be registered with the
order more to be sold. But if the property cannot be registry of deeds, and a brief memorandum thereof
sold in portions without prejudice to the parties, the shall be made by the registrar of deeds on said
whole shall be ordered to be sold in the first certificate of title.
instance, and the entire debt and costs shall be - If the property is not redeemed, the final deed of
paid, if the proceeds of the sale be sufficient sale executed by the sheriff in favor of the
therefor, there being a rebate of interest where such purchaser at the foreclosure sale shall be registered
rebate is proper. (Sec. 6, Rule 68) with the registry of deeds; whereupon the
certificate of title in the name of the mortgagor shall
WHEN THE RIGHT OF REDEMPTION EXISTS: be cancelled and a new one issued in the name of
- In the event of foreclosure, whether judicially or the purchaser. (Sec. 7, Rule 68)
extra-judicially, of any mortgage on real estate
which is security for any loan or other credit
b. Extrajudicial Foreclosure:
accommodation granted, the mortgagor or debtor
whose real property has been sold for the full or
partial payment of his obligation shall have the right NATURE OF EXTRAJUDICIAL FORECLOSURE:
within one year after the sale of the real estate, to - The extrajudicial foreclosure is proper only when so
redeem the property by paying the amount due provided under a special power inserted in or
under the mortgage deed, with interest thereon at attached to the mortgage contract. (Sec. 1, Act
rate specified in the mortgage, and all the costs 3135, as amended)
and expenses incurred by the bank or institution - Notice and publication requirements and the
from the sale and custody of said property less the formalities on the extrajudicial foreclosure
income derived therefrom. However, the purchaser proceeding which constitute the sine que non for
at the auction sale concerned whether in a judicial its validity. (PNB vs. Cabatingan, 557 SCRA 426)
or extra-judicial foreclosure shall have the right to
enter upon and take possession of such property PROCEDURE:
immediately after the date of the confirmation of 1. Extrajudicial Expressly Stipulated - A property may
the auction sale and administer the same in be foreclosed extrajudicially where there is inserted in
accordance with law. Any petition in court to enjoin the contract a clause giving the mortgagee the power
or restrain the conduct of foreclosure proceedings (upon default of the debtor) to foreclose the mortgage
instituted pursuant to this provision shall be given by an extrajudicial sale of the mortgaged property. (Sec.
due course only upon the filing by the petitioner of 1, Act 3135, amended by Act 4148);
a bond in an amount fixed by the court conditioned 2. Filing of Application For Extrajudicial Foreclosure of
that he will pay all the damages which the bank Mortgage - Proceedings for the extrajudicial
may suffer by the enjoining or the restraint of the foreclosure of mortgage are commenced by submitting
foreclosure proceeding. Notwithstanding Act 3135, an application before the executive judge who performs
juridical persons whose property is being sold an administrative function to ensure that all the
pursuant to an extrajudicial foreclosure, shall have requirements and conditions of the law on extrajudicial
the right to redeem the property in accordance with foreclosure are satisfied. (Ingles vs. Estrada, 695 SCRA
this provision until, but not after, the registration of 285);
the certificate of foreclosure sale with the 3. Publication of Notice of auction Sale - Notice of the
applicable Register of Deeds which in no case shall sale shall be given by posting it for not less than 20
be more than three (3) months after foreclosure, days in at least 3 public places of the municipality or
whichever is earlier. Owners of property that has city where the property is situated, and shall also be
been sold in a foreclosure sale prior to the published once a week for at least 3 consecutive weeks
effectivity of this Act shall retain their redemption in a newspaper of general circulation in the municipality
rights until their expiration. (Sec. 47, General or city. (Sec. 3, Act 3135);
Banking laws, RA 8791) a. Publication is mandatory and failure to comply
with the statutory mandate of publication
REGISTRATION: constitutes a jurisdictional defect which
1. If no right of redemption exists: invalidates the sale or at least renders the sale
- The certificate of title in the name of the mortgagor voidable. (Caubang vs. Crisologo, 749 SCRA
shall be cancelled, and a new one issued in the 563)
name of the purchaser. (Sec. 7, Rule 68) 4. Conduct of the Extrajudicial Foreclosure Sale - After
the posting and publication of the notice of extrajudicial
2. If a right of redemption exists: sale, the sheriff conducts the sale:
- The certificate of title in the name of the mortgagor a. Bidding shall be made through sealed bids
shall not be cancelled, but the certificate of sale submitted to the sheriff who shall conduct the
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sale between 9am to 4pm of the date of auction. Hence, the lack of personal notice to the
(Sec. 4, Act 3135) mortgagor (Sps. Olizons) is not a ground to set
b. The property mortgaged shall be awarded to the aside the foreclosure sale.
party submitting the highest bid and, in case of a
Registration in a public registry constitutes a
tie, an open binding shall be conducted between notice to the whole world and a constructive
the highest bidders. (OCA Circular no. 7-02); notice to Sps. Olizon
c. The sale must be made in the province in which
the real property is situated and, in case the place Sps. Suico vs. PNB Immaterial errors and mistakes will not affect the
GR no. 170215 sufficiency of the notice. If mistakes or omissions
within the said province in which the sale is to be Aug. 28, 2007 occur in the notices of sale, which are calculated
made is the subject of stipulation, such sale shall to deter or mislead bidders, to depreciate the
be made in said place in the municipal building value of the property, or to prevent it from
of the municipality in which the property or part bringing a fair price, such mistakes or omissions
will be fatal to the validity of the notice, and also
thereof is situated. (Sec. Act. 3135); to the sale.
5. Redemption of Property Sold - debtor has the right to
redeem the property sold within the term of 1 year from The application of the proceeds from sale of the
mortgaged property to the mortgagor’s obligation
and after the date of the sale. The reckoning date in is an act of payment, not payment by dacion;
cases of registered land is from the registration of the hence, it is the mortgagee’s duty to return any
certificate of sale since it is only from the date that the surplus in the selling price to the mortgagor.
sale takes effect as a conveyance. (General vs.
Barrameda, 60 SCRA 182) PNB vs. CA The notices of sale on extrajudicial foreclosure of
GR no. 98382 real estate mortgage are required to be posted
- In case the mortgagor is a juridical person May 17, 1993 for not less than 20 days in at least 3 public
(corporation and partnerships) and the mortgagee places of the municipality or city where the
is a bank or financial institution, they have the right property is situated, and if such property is worth
more than 400 pesos, such notices shall also be
to redeem the property until, but not after the published once a week for at least 3 consecutive
registration of the certificate of foreclosure sale weeks in a newspaper of general circulation in
which in no case shall be more than 3 months after the municipality or city.
foreclosure, whichever is earlier. (Sec. 47, General
The rule is that statutory provisions governing
Banking Law, RA 8791) publication of notice of mortgage foreclosure
6. Registration with Registry of Deeds sales must be strictly complied with and those
even slight deviations will invalidate the notice
and render the sale at least voidable. The first
REMEDY OF THE PARTY AGGRIEVED BY THE date falls on a Friday while the second and third
FORECLOSURE: dates are on a Friday and Saturday respectively.
1. Petition to set aside the sale; Sec 3 of Act no. 3135 requires that the notice of
auction sale shall be “published once a week for
2. Cancellation of the Writ of Possession;
at least three consecutive weeks.” Evidently, the
3. Annulment of the foreclosure sale because of: bank failed to comply with this legal requirement.
a. Existence of fraud, collusion, accident,
mutual mistake, breach of trust or DBP vs. Zaragoza In extrajudicial foreclosure of a mortgage, where
misconduct by the purchaser; GR no. L-23493 the proceeds of the sale is insufficient to cover
Aug. 23, 1978 the debt, the mortgagee is entitled to claim the
b. The sale had not been fairly and regularly deficiency from the debtor. Extrajudicial
conducted; or foreclosure is merely a proceeding for the sale,
c. The price was inadequate and the and its action cannot be taken to mean a waiver
of right to demand the payment of the whole
inadequacy was so great as to shock the
debt.; Prior to the completion of foreclosure, the
conscience of the court. (UCPB vs. Sps. mortgagor is, therefore, liable for the interest on
Beluso, 530 SCRA 567) the mortgage.
Limpin vs. IAC The superiority of the mortgagee's lien over that
CASE TITLE: CASE DOCTRINE: GR no. 70987 of a subsequent judgment creditor is now
Sept. 29, 1988 expressly provided in Rule 39, Section 16 of the
San Jose vs. CA Failure to advertise a mortgage foreclosure sale Revised Rules of Court. The right acquired by the
GR no. 106953 in compliance with statutory requirements subsequent judgment creditor is subject to
Aug. 19, 1993 constitutes a jurisdictional defect invalidating the existing liens or encumbrances.
sale and that a substantial; error or omission in a
notice of sale will render the notice insufficient The equity of redemption is, to be sure, different
and vitiate the sale. from and should not be confused with the right of
redemption. The right of redemption in relation to
In this case, the Notice of Sheriff’s Sale did not a mortgage, understood in the sense of a
state the correct number of the TCT of the prerogative to re-acquire mortgaged property
property to be sold. This is a substantial and fatal after registration of the foreclosure sale, exists
error which resulted in invalidating the entire only in the case of the extrajudicial foreclosure of
Notice. the mortgage. No such right is recognized in a
judicial foreclosure except only where the
mortgagee is the Philippine National Bank or a
Olizon vs. CA Personal notice to the mortgagor in extrajudicial
bank or banking institution.
GR no. 107075 foreclosure proceedings is not necessary/ Sec. 3,
Sept. 1, 1994 Act 3135 requires only the posting of the notice
Where a mortgage is foreclosed extra-judicially,
of sale in 3 public places and the publication of
Act 3135 grants to the mortgagor the right of
that notice in a newspaper of general circulation.
redemption within one (1) year from the
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registration of the sheriffs certificate of
foreclosure sale. The purchaser of a mortgaged property merely
steps into the shoes of the mortgagor. Thus, in
Landrito vs. CA As a rule in real estate mortgage, when the the instant case, considering that the property
GR no. 133079 principal obligation is not paid when due, the had already been sold at public auction pursuant
Aug. 9, 2005 mortgagee has the right to foreclose on the to an extrajudicial foreclosure, the only interest
mortgage and have the mortgaged property that may be transferred by Valentin to Roxas is
seized and sold with the view of applying the the right to redeem it within the period prescribed
proceeds thereof to the payment of the by law. Roxas is therefore the
obligation. successor-in-interest of Valentin, to whom the
latter had conveyed his interest in the property
It is only where (by voluntary agreement of the for the purpose of redemption.
parties) consisting of extension of the redemption
period, followed by commitment by the debtor to Samson vs. Rivera The purchaser, who has a right to possession
pay the redemption proceed at a fixed date, will GR no. 154355 that extends after the expiration of the
the concept of legal redemption be converted May 20, 2004 redemption period, becomes the absolute owner
into a conventional redemption. of the property when no redemption is made.
Hence, at any time following the consolidation of
It must be remembered that the period of ownership and the issuance of a new TCT in the
redemption is a prescriptive period but a name of the purchaser, he or she is even more
condition precedent provided by law to restrict entitled to possession of the property.
the right of the person exercising redemption.
The remedy in opposing the issuance of a writ of
Rayo vs. Prior actual acknowledgement that the subject possession is to file a petition to set aside the
Metrobank real properties were already sold at various foreclosure sale and to cancel the writ of
GR no. 165142 extrajudicial foreclosure sale tantamount to a possession in the same proceedings where the
Dec. 10, 2007 notice of registration, pursuant to Art. 2125 Civil writ of possession was requested.
Code. Since Rayo has prior knowledge, he does
not have interest to the subject property Zomar Dev’t vs. CA Sec. 47 of General Banking Law shortened the
GR no. 194461 period of redemption for juridical persons whose
The issuance of a writ of possession in favor of Jan. 7, 2020 properties were foreclosed to serve as an
the purchaser in a foreclosure sale of a additional security for banks to maintain their
mortgaged property under Sec. 7, Act. 3135, solvency and liquidity.
does not violate Rayo’s right to due process. The
purchaser of the foreclosed property has the right The difference in the treatment of juridical
to acquire possession of the foreclosed property persons and natural persons was based on the
during the 12-month redemption period and after nature of the properties foreclosed - whether
the expiration of the redemption period. these are used as residence, for which the more
liberal one-year redemption period is retained, or
The issuance of writ of possession is a ministerial used for industrial or commercial purposes, in
duty of the courts, upon filing of the mortgagee a which case a shorter term is deemed necessary
petition ex parte, and posting of bond. An ex to reduce the period of uncertainty in the
parte petition for the issuance of writ of ownership of property and enable
possession is a non-litigious proceedings mortgagee-banks to dispose sooner of these
authorized in extrajudicial foreclosure brought for acquired assets.
the benefit of one party only, without notice and
consent of the other party who has adverse Sec. 47, General Banking law, the juridical person
interest. As mandated by Section 8 of Act 3135, only had 3 months from foreclosure or before the
the debtor may only file a petition to set aside the registration of the certificate of foreclosure sale
sale and cancellation of writ of possession not (whichever came first) to redeem the property
later than thirty (30) days after the purchaser was sold in the extrajudicial sale.
given possession.
Chinabank vs. Sps. The purchaser in a foreclosure sale is entitled to a EFFECT OF FORECLOSURE ON SECOND MORTGAGES:
Ordinario possession of the property; hence it is the - As between the first and second mortgagees, the
GR no. 121943 ministerial duty of the court to grant writ of
Mar. 24, 2003 possession (Sec. 7, Act No. 3135). Sps.
second mortgagee has at most only the right to
Ordinario’s resort to a motion for reconsideration redeem, and even when the second mortgagee
is a procedural misstep; the remedies of an goes through the formality of an extrajudicial
adverse party (third-party claimant/stranger to a foreclosure, the purchaser acquires no more than
foreclosure suit) are to file a terceria (against the
sheriff or officer) or institute a separate action
the right of redemption from the first mortgagee.
(recovery of possession seized by the sheriff) or (Tizon vs. Valdez, GR no. L-24797, March 16, 1926)
damages, and the remedies are cumulative and
may be availed of independently/separately.
TIZON vs. VALDEZ
Roxas vs. Buan In extrajudicial foreclosure of real estate GR no. L-24797, March 16, 1926
GR no. L-53798 mortgages, the possession of the property may
Nov. 8, 1988 be awarded to the purchaser at the foreclosure We have before us the simple situation of a first mortgagee in
sale: (1) during the pendency of, or (2) after the possession attacked by the second mortgagee after foreclosure
period of redemption. The exception to this is
of the second mortgage; and a little reflection will show, we
when a third person is actually holding the
property adversely to the judgment debtor. The
think, that the second mortgagee cannot prevail. After a first
purchaser of a Mortgage Property which is under mortgage is executed there remains in the mortgagor a mere
the 1-year redemption does not have the right to right of redemption, and only this right passes to the second
claim possession of the property unless he or she mortgagee by virtue of the second mortgage. As between the
was able to redeem the mortgaged property first and second mortgagees, therefore, the second mortgagee
during the aforesaid 1-year redemption period.
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has at most only the right to redeem, and even when the second
DISTINGUISHMENT BETWEEN ANTICHRESIS AND REAL
mortgagee goes through the formality of an extrajudicial ESTATE MORTGAGE:
foreclosure, the purchaser acquires no more than the right of ANTICHRESIS REAL MORTGAGE:
redemption from the first mortgagee.
The immovable property is The debtor usually retains
The remedy of the plaintiff in this case must therefore be limited
delivered to the creditor possession of the property
to the right to redeem by paying off the debt secured by the first
mortgage. But the action is not directed to this end, and in the
The creditor acquires only the The creditor does not have
controversy over the title the purchaser at the foreclosure sale
under the second mortgage must fail. Valdez, as first mortgagee, right to receive the fruits of the any right to receive the fruits
property
even supposing that he acquired nothing by his purchase at his
own execution sale, is yet entitled to possession for the purpose
at least of foreclosing his first mortgage, the lien of which, as we Unless there is a contrary The creditor has no obligation
have already demonstrated, still subsists; and since Valdez is stipulation, The creditor is to pay the taxes and charges
entitled to possession Tizon cannot maintain an action to obliged to pay the taxes and upon the property
recover the property. charges upon the estate,
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- To totally pay what he owes to the creditor before SECURITY - shares, participation or interests in a
he can reacquire the enjoyment of the immovable corporation or in a commercial enterprise or profit-making
property. (Art. 2136, NCC) venture and evidenced by a certificate, contract,
instruments, whether written or electronic in character. It
includes but is not limited to:
a. Shares of stocks, bonds, debentures, notes as
evidence of indebtedness, asset-backed securities;
VI. PERSONAL PROPERTY SECURITIES
b. Investment contracts, certificates of interest or
(Personal Property Security Act or RA 11057)
participation in a profit-sharing agreement,
certificates of deposit for a future subscription;
c. Fractional undivided interests in oil, gas or other
mineral rights;
A. COVERED PROPERTIES: d. Derivatives like options and warrants;
e. Certificates of assignments, certificates of
SCOPE OF PPSA: participations, trust certificates, voting trust
- General Rule: All transactions that secure an obligation certificates or similar instruments;
with personal property, whether tangible or intangible f. Proprietary or nonproprietary membership
asset. (Sec. 2.01, RA 11057-IRR) certificates in corporation; and
- Exception: g. Other instruments as may in the future be
a. Interest in Aircraft under Civil Aviation Authority determined by the Securities and Exchange
Act (RA 9497); and Commission. (Sec. 1.05(ii), RA 11057-IRR)
b. Interest in Ships under Ship MOrtgage decree
(PD 1521) STAGES OF SECURITY INTEREST:
a. Creation of a Security Interest:
DEFINITION OF A COMMODITY CONTRACT: 1. A security interest shall be created by a security
- A commodity futures contract, an option on a agreement;
commodity futures contract, a commodity option, 2. A security agreement may provide for the creation
or another contract if the contract or option is: of a security interest in a future property, but the
(1) Traded on or subject to the rules of a security interest in that property is created only
board of trade that had been designated when the grantor acquires rights in it or the power
as a contract market for such a contract; to encumber it. (Sec. RA 11057)
or
(2) Traded on a foreign commodity board of b. Perfection of a Security Interest:
trade, exchange, or market, and is carried 1. A security interest shall be perfected when it has
on the books of a commodity intermediary been created and the secured creditor has taken
for a commodity customer. (Sec. 3(a), RA one of the actions. (Sec. 11(a), RA 11057);
11057) 2. on perfection, a security interest becomes effective
against third parties. (Sec. 11(b), RA 11057).
COMMODITY - any goods, articles, services, rights and
interest, including any group or index of any of the MEANS OF PERFECTION:
foregoing, in which commodity interests contracts are a. Registration of a notice with the Registry;
presently or in the future dealt in. (RA 8799-IRR) b. Possession of the collateral by the secured
creditor; and
c. Control of investment property and deposit
B. NATURE OF SECURITY INTEREST: account. (Sec. 12, RA 11057)
DEFINITION OF SECURITY INTEREST:
C. CONTROL AGREEMENT:
- A property right in collateral that secures payment
or other performance of an obligation, regardless of
whether the parties have denominated it as a NATURE OF A CONTROL AGREEMENT:
security interest, and regardless of the type of Parties
asset, the status of the grantor or secured creditor, Type: Nature of Agreement:
Involved:
or the nature of the secured obligation; including
the right of a buyer of accounts receivable and a As to ● Issuer or The issuer or the intermediary
lessor under an operating lease for not less than 1 intermediary; agrees to follow instructions
Securities: ● Grantor; from the secured creditor with
year. (Sec. 3(j), RA 11057) ● Secured respect to the security,
- A security interest is any tangible asset may be Creditor; without further consent from
perfected by registration or possession. A security the grantor.
interest in investment property and deposit account
may be perfected by registration or content. (Sec. As to Rights ● Deposit-taking The deposit-taking institution
institution; agrees to follow instructions
12, last par., RA 11057) to Deposit
● Grantor; from the secured creditor with
Account:
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● Security respect to the payment of
d. Provide for the language to be used in agreements
Creditor; funds credited to the deposit and notices . (Secs. 5-6, PPSA)
account without further
consent from the grantor.
As to ● Grantor; The commodity intermediary
PURPOSE OF SECURITY AGREEMENT:
● Secured will apply any value distributed
Commodity creditor; on account of the commodity a. Provide the statutory basis for granting a security
Contracts: ● Intermediary contract as directed by the interest;
secured creditor without
further consent by the
b. Establish the connection between the security
commodity customer or interest and the obligation it secures; and
grantor. c. Minimize the risk of disputes with respect to the
terms of the agreement between the grantor and
the secured creditor, including terms relating to
conditions of default and enforcement. (Sec. 6,
PARTIES TO A CONTROL AGREEMENT: PPSA)
ISSUER:
REQUIREMENTS ON COLLATERAL:
- An issuer is the originator, maker, obligor, or creator - A description of collateral in the security agreement
of the security. (Sec. 3.2, RA 8799) and/or in registration notices shall be considered
sufficient if it reasonably identifies the collateral.
INTERMEDIARY:
- A specific description of the collateral shall not be
- A person, including, but not limited to, a bank, trust
required in constituting the security interest.
entity, depositary, broker, or central securities - A description such as “all personal property,” “all
depositary, that in the ordinary course of business equipment,” “all inventory,” or “all personal
or regular activity maintains an account for such property within a generic category” of the grantor
securities or assets, for another person, and is
shall be sufficient. (Sec. 3.04, PPSA-IRR)
acting in that capacity. (Sec. 1.05(o), RA
11057-IRR) EXTENT OF SECURITY INTEREST:
1. Security Interest Over Future Property:
DEPOSITARY-TAKING INSTITUTION (DTI):
a. Security agreement may create security interest in
- Refers to a bank defined under the General
future property or after-acquired property but the
Banking Laws (RA 8791), a non-stock savings and
security interest therein is created only when the
loan association defined under Revised Non-Stock
grantor acquires rights in it or the power to
Savings and Loan Association Act (RA 8367), or a
encumber it;
cooperative under the Philippine Cooperative Code
b. Security agreement may provide that a security
(RA 9520). (Sec. 1.05(g), RA 11057-IRR).
interest in a tangible asset that is transformed into a
product extends to the product but the security
GRANTOR:
interest in the transformed product is limited to the
1. The person who grants a security interest in
value of the encumbered asset immediately before
collateral to secure its own obligation or that of
it becomes part of the product. (Security interest is
another person;
limited only to the value of the raw materials);
2. A buyer or other transferee of a collateral that
c. Security agreement may provide that a security
acquires its right subject to a security interest
interest in a tagine asset extends to its replacement
3. A transferor in an outright transfer of an accounts
but the security interest in the replacement is
receivable; or
limited to the value of the encumbered asset
4. A lessee of goods. (Sec. 3(c), RA 11057)
immediately before it was replaced. (Sec. 3.05,
PPSA-IRR)
SECURED CREDITOR:
2. Security Interest Over Right to Proceeds and
- A person that has a security interest, For the
Commingled Funds:
purposes of registration and priority only, it
a. Security interest in personal property shall extend to
includes a buyer of account receivable and a lessor
its identifiable or traceable proceeds;
of goods under an operating lease for not less than
b. If the proceeds are in the form of funds credited to a
1 year. (Sec. 3(i), RA 11057)
deposit account or money are commingled with
other funds or money:
D. CREATION OF A SECURITY INTEREST: i. Security interest shall extend to the
commingled money or funds notwithstanding
that the proceeds have ceased to be
REQUISITES OF A SECURITY AGREEMENT: identifiable to the extent they remain
a. Security interest; traceable;
b. Contain a written contract signed by the parties; ii. Security interest in the commingled funds or
c. May consist of one or more writings that establish money shall be limited to the amount of the
the intent of the parties to create a security interest;
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proceeds immediately before they were the security interest in collateral was registered prior to
commingled; and his “obtaining the property”. (Sec. 21, PPSA)
iii. If at any time after the commingling the
balance credited to the deposit account or LIMITATIONS ON THE CREATION OF SECURITY
the amount of the commingled money is less INTEREST:
than the amount of the process immediately 1. Accounts Receivables:
before they were commingled, the security - For the 3 types of Accounts receivables, the
interest against the commingled funds or provisions limiting the right to create the security
money shall be limited to the lowest amount interest on the Accounts Receivables is void (ie.
of the commingled funds or money between Prohibiting the security interest creation altogether
the time when the proceeds were commingled or requiring the consent of account debtor to the
and the time the security interest in the Security Interest creation). (Sec. 10(c), PPSA)
proceeds is claimed. (Sec. 2.06, PPSA-IRR) - Security interest can be created on the Accounts
3. Security Interest Over Tangible Assets Commingled Receivables from these 3 contracts although there
in a Mass: is a contractual limitation:
a. Security interest in a tangible asset that is 1. Contract to supply, lease of goods or
commingled in a mass extends to the mass; services other than financial services;
b. Security interest that extends to a mess is limited to 2. A construction contract for the sale or lease
the same proportion of the mass as the quantity of of real property;
the encumbered asset bore to the quantity of the 3. Contract for the sale, lease or license of
entire mass immediately after the commingling. intellectual property. (Sec. 10(d), PPSA)
(Sec. 3.07, PPSA-IRR) - Grantor is not liable for breach for violating
4. Security Interest in Certain Accounts Receivable: provision limiting the Security interest Creation.
a. Security interest in an account receivable shall be (Sec. 10(b), PPSA)
effective notwithstanding any agreement between 2. Protection of Account debtor:
the grantor and the account debtor or any secured - The creation of security interest in a receivable
creditor limiting in any way the grantor’s right to does not (without the consent of the debtor of the
create a security interest; PROVIDED, Nothing in receivable) affect the debtor’s rights and
this section affects the right of a buyer to create a obligations, including payment terms contained in
security interest over the account receivable. the contract giving rise to the receivables.
PROVIDED, FURTHER, that any release of - A payment instruction may change the person,
information is subject to agreements on address or account to which the debtor of the
confidentiality; receivable is required to make payment. (Sec. 3,09,
b. Any stipulation limiting the grantor’s right to create a PPSA-IRR)
security interest shall be void; 3. Rights to payment of funds credited to a bank
c. This shall apply only to accounts receivable arising account:
from: - A security interest in a right to payment of funds
i. Contract for the supply or lease of goods or credits to a bank account is effective
services other than financial services; notwithstanding an agreement between the grantor
ii. Construction contract or contract for the sale and the deposit-taking institution limiting in any
or lease of real property; and way the grantor’s right to create a security interest.
iii. Contract for the sale, lease or license of (Sec. 3.10, PPSA-IRR)
intellectual property. (Sec. 3.08, PPSA-IRR) 4. Tangible assets with respect to which Intellectual
Property is Used:
CONTINUITY OF SECURITY INTEREST AND - A security interest in a tangible asset with respect
EXCEPTIONS: to which intellectual property is used does not
● General Rule: Security interest in collateral continues extend to the intellectual property and a security
even after sale, lease, license, exchange or other interest in the intellectual property does not extend
disposition of collateral. (Sec. 9, PPSA) to the tangible asset.
● Exception:
○ Unless the rules say otherwise or as agreed by the
E. PERFECTION OF SECURITY INTEREST:
parties (Sec. 3.02, PPSA-RR);
○ Security interest in collateral does not continue on
the collateral with respect to third parties in good EFFECT OF PERFECTION OF SECURITY INTEREST:
faith in a subsequent sale, lease, license, - Perfection of security interest makes the security
exchange or other disposition of collateral. (Sec. interest effective against third parties (other
21, PPSA) creditors of grantor, subsequent buyers of the
■ Third party must have obtained the property collateral, government, adverse claimants, etc.).
in the ordinary course of business. (Sec. 21, - This must be authorized under the PPSA and Sec.
PPSA) 1.05(w), PPSA-IIR)
● Exception to the exception: Security interest in
collateral continues and binds third party in good faith if
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REQUIREMENTS FOR PERFECTION OF SECURITY i. In writing by the Depositary Taking
INTEREST: Institution, grantor and secured creditor;
a. Creation of the Security Interest; ii. Under oath, indicare date of execution;
b. Means of perfection: iii. Stipulate that the Deposit-taking
i. By registration of a notice with the Registry of institution agrees to follow instructions
Deeds; from the secured creditor on payment of
ii. By possession of the collateral by the secured funds from the grantor's deposit account
creditor; and without further consent from the grantor.
iii. By control of investment property and deposit (Sec. 4.07, PPSA-IRR)
accounts. (Sec. 12, PPSA) c. Control Agreement on Commodity
Contracts must be:
MEANS OF PERFECTION: i. In writing by the commodity intermediary,
a. Perfection of Tangible Assets: grantor and secured creditor;
- Registration of notice in the Registry (Although it is ii. Stipulate that commodity intermediary will
still valid even if it is not registered but it is not apply value distributed on account of the
binding against third parties). commodity contract as directed by the
- Possession (actual or constructive) either by secured secured creditor without further consent
creditor or by the depositary acting for the secured by the commodity customer or the
creditor provided that debtor or grantor cannot grantor;
possess the collateral on behalf of the secured iii. Under oath, indicate the date of
creditor for purposes of perfecting and maintaining execution. (Sec. 4.07, PPSA-IRR)
the security interest. - Deposit-Taking Institution or Intermediary:
- If a security interest in a tangible asset is effective - cannot be compelled to enter into a control
against third parties, a security interest in a mass to agreement, even if grantor requests.
which the security interests is effective against the - Cannot be required to confirm the existence of
third parties without further act. (Sec. 4.01, agreement to another person unless requested
PPSA-IRR) to do so by the grantor.
b. Perfection of Intangible Assets: d. Perfection of Security Interests in Electronic
- Registration of notice in the Registry (Although it is Non-Intermediated Securities:
still valid even if it is not registered but it is not - Registration of notice in the Registry (Although it is
binding against third parties). still valid even if it is not registered but it is not
- Conclusion of a control agreement. The time of binding against third parties).
perfection is the time when a control agreement is - execution of a control agreement between the
executed under oath and must indicate the date and grantor and secured creditor; or
time of its execution. (Sec. 403, PPSA-IRR) - Control, through notation of a security interest in the
c. Perfection of Intermediated Securities or Deposit books maintained by or on behalf of the issuer for
Accounts: the purpose of recording the name of the holder of
- Registration of notice in the Registry (Although it is the securities. (Sec. 4.05, PPSA-IRR)
still valid even if it is not registered but it is not e. Perfection of Security Interest in Intermediated
binding against third parties). Electronic Securities:
- Creation of a Security Interest in favor of - Registration of notice in the Registry (Although it is
deposit-taking institution or the intermediary: still valid even if it is not registered but it is not
- General Rule: Creation of a security agreement binding against third parties).
binds the parties and not third persons. - Control agreement among grantor, intermediary and
- Exception: Creation of a security agreement secured creditor. Time of perfection is the time when
will not only bind the parties but also third control agreement is executed under oath and must
person. indicate the date and time of its execution. (Sec.
- Conclusion of a control agreement The time of 4.06, PPSA-IRR)
perfection is the time when control agreement is
executed under oath and must indicate the date and MEANING OF PROCEEDS (Sec. 1.05(z), PPSA-IRR):
time of its execution. (Sec. 4.04, PPSA-IRR) - any property received upon sale, lease or other
a. Control Agreement on Intermediated disposition of collateral or whatever is collected on or
Securities must be: distributed with respect to collateral;
i. In writing by the issuer or intermediary, - Claims arising out of loss or damage to the collateral,
grantor, and secured creditor: as well as the right to insurance payment or other
ii. Stipulare that the issuer or intermediary compensation for loss or damage of the collateral.
agrees to follow instructions from the
secured creditor on the security without PERFECTION IN PROCEEDS:
further consent from the grantor. (Sec. a. If collateral is money, accounts receivable or deposit
4.07, PPSA-IRR) account and the same is disposed:
b. Control Agreement on Deposit Account
must be:
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- The Security interest shall extend to the proceeds ● Second Priority: Security interest perfected
of collateral without further act and shall be by any other method (Sec. 18(f), PPSA)
continuously perfect. (4.09(b), PPSA-IRR) (d)Electronic Securities (with no intermediary;
b. If the proceeds is not money, accounts receivable, Perfected by Control Agreement):
negotiable instrument or deposit account and the ● First Priority: Security interest perfected via
same is disposed: control agreement.
- The Security INterest will extend to proceeds of ● Second Priority: Security interest perfected
collateral only upon the following further actions: by Registration. (Sec. 18(g), PPSA)
- Security Interest must be perfected by (e)Electronic Securities (with no intermediary):
appropriate means of perfection (ie. ● First Priority: Security interest perfected by
registration, control, possession) within 15 earliest control agreement.
days after the grantor receives the ● Second Priority: Security interest perfected
proceeds. by subsequent Control agreement, etc. (Sec.
- If not perfected within the 15-day period, 18(f), PPSA)
the security interest on the proceeds shall
not be effective against a third person. B. PRIORITY FOR INSTRUMENTS (warehouse receipts,
(S4.09(b), PPSA-IRR) quedans, bill of lading, etc.) OR NEGOTIABLE
INSTRUMENTS (Checks, Promissory Notes, and Bills
CHANGE IN THE MEANS OF PERFECTION: of Exchange):
- A security interest shall remain perfected despite a ● First Priority: Security interest perfected by
change in the means for achieving perfection: possession
PROVIDED, that there was no time when the ● Second Priority: Security interest perfected by
security interest was not perfected. (Sec. 15, PPSA) registration. (Sec. 19, PPSA)
ASSIGNMENT OF SECURITY INTEREST BY THE C. PRIORITY FOR GOODS SUPPLIED OR SERVICES BY
SECURED CREDITOR: A SUPPLIER:
- If a secured creditor assigns a perfected security ● First Priority: Supplier of services or material;
interest, an amendment notice may be registered to ○ Done in the ordinary course of business;
reflect the assignment. (Sec. 16, PPSA) ○ Possesses the goods (possessory lien);
○ Goods remain unpaid;
● Second Priority: Security interest perfected by
RULES ON PRIORITY OF SECURITY INTEREST:
other means. (Sec. 20, PPSA)
D. SECURITY INTEREST PERFECTED PRIOR TO THE
GENERAL RULE: First to perfect (registration or other START OF INSOLVENCY CASE:
means) in time has a prior security interest on the same - Security interest remains perfect and retains
collateral. priority, subject to insolvency laws. (Sec. 22, PPSA)
EXCEPTION: Priority for deposit accounts and
investment property, and Purchase Money Security
E. PRIORITY FOR PURCHASE MONEY SECURITY
Interes (PMSI). (Sec. 6.01, PPSA-IRR)
INTEREST (PMSI):
(a) PMSI on Equipment and its proceeds - prioritized
A. PRIORITY FOR PERFECTION BY CONTROL: over other security interests if the PMSI Notice is
(a)Deposit Account or Investment Property with registered within 3 business days after the grantor
Deposit-taking institution or intermediary: receives possession of the equipment.
● First Priority: Security interest of the (b) PMSI on Consumer Goods - prioritized over other
Deposit-taking institution or intermediary; security interests if the PMSI Notice is registered
● Second Priority: Security interest via Control within 3 business days after the grantor receives
Agreement (if more than 2, security interest possession of the goods.
with earliest Control Agreement (time of (c) PMSI on Inventory, Intellectual property or
conclusion)); livestock - prioritized over other security interests if:
● Third Priority: Security interest via ● The grantor possesses inventory or livestock or
Registration. (sec. 18(a), PPSA) obtains right to the intellectual property; and
(b)Security Certificate (Tangible Assets): ● Purchase money secured creditor serves written
● First Priority: Possession of the Security notice to the holder of the conflicting perfected
Certificate security interest before the grantor’s possession.
● Second Priority: Security interest perfected (23(c), PPSA).
by Registration (Sec. 6.03(a), PPSA-IRR) ○ The notice sent to the holder of the
(c)Electronic Securities (with no intermediary; conflicting security interest may cover
Perfected by Notation): multiple transactions between the purchased
● First Priority: Notation of security Interest in money secured creditor and the grantor
the issuer’s books without need to identify each transaction.
(Sec. 6.05(ii), PPSA-IRR)
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○ Inventory tangible assets held by the 2. The Registry shall be established in and
grantor for sale or lease in the ordinary administered by the Land Registration Authority).
course of business, including raw materials (Sec. 26, PPSA)
and work in process. (Sec. 1.05(q), 3. The Registry shall provide electronic means for
PPSA-IRR) registration and searching of notices. (Sec. 26,
PPSA)
Definition of Purchase Money Security interest (PMSI):
- It is a security interest in goods taken by the seller to DUTIES OF THE REGISTRY:
secure the price or by a person who gives value to - The duties of the Registry shall be merely
enable the grantor to acquire the goods to the extent administrative in nature. By registering a notice or
that the credit is used for that purpose. (Sec. refusing to register a notice, the Registry does not
1.05(bb), PPSA-IRR) determine the sufficiency, correctness, authenticity,
or validity of any information contained in the
F. PRIORITY FOR LIVESTOCK: notice. (Sec. 35(f), PPSA; Sec. 5.04(f), PPSA-IRR)
● First Priority: PMSI on the livestock;
● Second Priority: Other perfected security interest in FEES:
livestock: - No fees for electronic searches of records or for
1. securing an obligation incurred to enable the registration of termination notice:
grantor to obtain food or medicines for the
livestock; NOTICE IN GENERAL:
2. secured creditor providing credit for food or 1. Unique number, record of date and time of registration;
medicine gives written notice to the holder of 2. Copy is provided to person who submitted it;
the conflicting perfected security interest in the 3. Records of lapsed notice are maintained for 10 years
same livestock before the grantor receives after lapse.;
possession of food or medicine. 4. Open to public inspection, public record, official
● Third Priority: Other security interest. (Sec. 6.03(c), records. (Sec. 5.04, PPSA-IRR)
PPSA-IRR)
REQUIREMENTS FOR NOTICE:
G. VALUE OF REGISTRATION: 1. Content Requirements:
- Registered Security interest vs. Buyer in good faith: a. Grantor’s ID Number;
Security interest has priority over buyer in good faith b. Secured Creditor or his authorized agent’s name;
if the security interest was registered before “taking” c. Address of grantor and secured creditor or his
(possession) by the buyer in good faith. (sec. 21, agent;
PPSA) d. Collateral description;
- No good faith if the registration came first before the e. Duration of effectivity of the Security Interest;
buyer “obtaineed” (possession) the property. f. Fees paid/arranged. (Sec. 28, PPSA)
- Registration is not a priority in case of 2. Consent requirements:
competing Security interests. However, ● General Rule: Grantor must authorize registration
registration is still an important means of of initial notice by signing a security agreement or
perfection as it protects the security interest’s any written document. (Sec. 28, PPSA)
priority in case of sale to a buyer in good faith. ● Exception: If notice is a lien, the same may be
(Sec. 21, PPSA) registered without the consent of the person
against whom the lien is sought to be enforced.
H. PERFECTED SECURITY INTEREST ON MOVABLE (sec. 28(e), PPSA)
WHICH BECAME A FIXTURE, ACCESSION OR
COMMINGLED WITH OTHERS: DATE OF EFFECTIVITY:
- A perfected security interest in a movable property - A notice is effective at the time it is discoverable on the
which has become a fixture, or has undergone records of the Registry (searchable by the searcher) and
accession or commingling shall continue provided for the duration stated, unless extended. (Sec. 30(a),
the movable property involved can still be PPSA)
reasonably traced. In determining ownership over - Copy of the electronic record of notice provided to
fixtures, accessions, and commingled goods, the person filing (aka Secured Creditor) shall be conclusive.
provisions of Book II of Republic Act No. 386 or the (Sec. 5.07, PPSA-IRR)
"Civil Code of the Philippines" shall apply. (Sec. 25,
PPSA) SPECIFIC RULES:
1. Notice can be registered ahead of the conclusion of the
security agreement, and the date of registration will still
F. REGISTRATION:
be the date of notice (not the conclusion of the Security
Agreement). (Sec. 28, PPSA);
THE REGISTRY (LAND REGISTRATION AUTHORITY): 2. One notice for several security agreements is sufficient.
1. Centralized, Nationwide. (Sec. 5.01, PPSA-IRR) (Sec. 29, PPSA);
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3. A notice that may not be retrieved in a search of the a. Grounds when the grantor may demand for the
Registry against the correct identifier of the grantor amendment or termination of notice effectiveness:
(grantor’s ID number) shall be ineffective with respect i. All the Security Agreement obligations have
to that grantor. (Sec. 5.07, PPSA-IRR); been performed and there is no commitment to
4. Notice shall not expand or diminish the Security make future advances;
interest. Errors or misinterpretation in the notice ii. The secured creditor has agreed to release part
regarding the description of the security interest shall of the collateral described in the notice;
not affect rights in the security agreement. (Sec. 5.07, iii. Collateral includes properties that are not
PPSA-IRR); collaterals in the Security Agreement;
5. Substantial compliance with notice requirements is iv. No security agreement exists between the
effective provided it is not seriously misleading. (Sec. parties;
31, PPSA) Example of seriously misleading notice: v. The Security Interest is extinguished. (Sec. 39,
Does not provide the identification number of the PPSA)
grantor. b. Upon receipt of a demand from the grantor, the
secured creditor must register termination notice based
AMENDMENT OF NOTICE VIA REGISTRATION: on the following:
1. May be filed by the Secured creditor alone if the i. All the Security Agreement obligations have
changes in the security interest can be effected with been performed and there is no commitment to
the sole consent of the secured creditor. (Sec. 5.08(a), make future advances;
PPSA-IRR); ii. No security agreement exists between the
2. May be filed by the grantor, if the security interest parties;
requires the grantor’s consent; iii. The Security Interest is extinguished.
3. Requires the grantor’s written consent for additional iv. The Secured creditor must not charge any fee.
collateral; (Sec. 5.13; 5.15, PPSA-IRR)
- Exception: no need for consent of grantor to file c. If the secured creditor fails to comply with demand
amendment, if additional collateral are proceeds. within 15 days, the grantor can go to court and court
(Sec. 5.08, PPSA-IRR) may issue an order terminating or amending the notice.
- Amendment is effective as to added collateral from (Sec. 5.14, PPSA-IRR)
registration of amendment and only as to each
Secured Creditor who authorized it. PUBLIC ACCESS AND SEARCH:
4. Requires additional grantor’s written consent for such a. Electronic records of the Registry:
new grantor; i. Official records;
- Amendment is effective as to additional grantor ii. Public record;
from registration of amendment and only as to iii. May be examined and searched by any person
each secured creditor who authorized it. following the Data Privacy Act. (Sec. 5.16,
5. Notice may be continued for an extended period via PPSA-IRR)
continuation notice registered within 6 months before b. Registry may disclose the following information:
its term lapses. (Sec. 5.07; 5.09, PPSA-IRR); i. Unlapsed notices indicating the grantor’s ID
6. Court may order amendment of notice (Grantor’s number or vehicle serial number, that exactly
application): matches the relevant criterion of the searcher;
a. Conclusive and binding on the LRA; ii. Registration number, and the date/time of
b. Secured Creditor may appeal the order. (Sec. 5.10, registration of each notice;
PPSA-IRR); iii. All of the information contained in each notice.
c. If the grantor’s application is erroneous or false, the 1. Secured creditor or his agent’s name;
affected person (who is not negligent) is entitled to 2. Address of the grantor and Secured creditor
damages. Likewise, the Court may also order or his agent;
correction of error or false description. 3. Collateral description;
4. Duration of effectivity of the Security INterest;
TERMINATION OF EFFECTIVENESS OF A NOTICE: 5. Fees paid.arranged.
a. Termination, effective on date and time when info in c. Notice filing or notice search for frivolous, malicious or
notice is no longer accessible to searchers in the criminal purpose - Civil and criminal penalties.
record. (Sec. 5.11, PPSA-IRR);
b. Termination effective only against each secured CORRECTION OF ADMINISTRATIVE ERRORS OR
creditor who authorizes termination. (Sec. 5.11, OMISSIONS BY THE REGISTRY:
PPSA-IRR); a. The Registry will register a notice to correct.
c. Court may also order termination: Registration is effective as of time the information
i. Conclusive and binding on LRA; in the notice becomes accessible to searchers.
ii. Secured creditor may appeal the order. (Sec. b. Restore omitted data and send a copy to the
5.12, PPSA-IRR) secured creditor.
c. Entry of false or misleading information - criminal
DEMAND FOR AMENDMENT OR TERMINATION OF act.
NOTICE:
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- Secured creditor may select method, manner, time,
G. ENFORCEMENT OF SECURITY INTEREST:
place and other aspects of the sale/disposition,
lease or licenses encumbered assets individually, in
ENFORCEMENT BY JUDICIAL DISPOSITION: groups or altogether. Conditions:
- Rules of Replevin shall govern. (See Rule 60, Rules - Disposition is in good faith;
of court); - Satisfies commercial reasonableness
- Rule 39 shall govern for the execution sale. requirement (Sec. 7.09, PPSA-IRR):
- disposes the collateral in
ENFORCEMENT BY EXTRA-JUDICIAL DISPOSITION: conformity with commercial
a. Extra-judicial Repossession: practices among dealers in that
- Ordinary cases. Secured creditor may possess type of property;
collateral extrajudicially. - remains reasonable even if
- Requirements: there’s a better price at a different
a. If this is stipulated in the security time or by a different method;
agreement; and - If the disposition method is
b. If the taking will not breach the peace. approved in a legal proceeding
(Sec. 47(a), PPSA) conclusive presumption that it is
- If collateral is a fixture, the secured creditor with commercially reasonable.
priority security interest may extrajudicially remove b. Notice Requirements for Disposition:
the fixture from the real property to which it is - Notice sale Secured creditor shall not be later
affixed. (Sec. 47(b), PPSA) than 10 days before disposition, post the notice of
sale with the Registry;
Breach of peace; meaning - entering the private - Describing the collateral to be sold,
residence of the grantor without permission, resorting to method, manner, time, place and other
physical violence or intimidation, or being accompanied details of the sale;
by a law enforcement officer when taking possession or - The Registry will ascertain that all notices
confronting the grantor. (Sec. 47(c)(3), PPSA) are publicly accessible and searchable.
(Sec. 7.08, PPSA-IRR)
b. Judicial Repossession - Expedited repossession of the - Who to notify?
collateral. The default debtor and taking of collateral will - The grantor
to breach of peace. (Sec. 47(c), PPSA; Sec. 7.03, - Other secured creditors or lienholders
PPSA-IRR): who, 5 days before notice to the grantor
i. Judicial process; and debtor, held a security interest perfect
ii. File an application in order to allow the creditor by registration.
to possess the collateral. Statement under - Any other person who notified the
oath on the existence of Security Agreement disposing creditor about such other
attached to application & identifying at least 1 person’s interest in the collateral, and
event of default under the Security agreement. such other person’s notice was received
(Sec. 7.03(A), PPSA-IRR); before the disposing creditor gace the
iii. Expedited hearing; and notice to dispose to the grantor and
iv. Serve on interested parties (debtor, grantor, debtor.
REM mortgage if there is a fixture) a copy of - Can the grantor waive the right to be notified?
the application. (Sec. 7.03(b), PPSA-IRR); Yes but only after default.
v. order, issued if the court finds there is default - Requirements of notice - identifies grantor,
and secured creditor can possess. Secured creditor, collateral, method of disposition,
time/place of public disposition or time for other
RIGHT OF HIGHER-RANKING: dispositions. (Sec. 51(c), PPSA)
- For enforcement (judicial or extrajudicial), in cases - Type of notice - registered mail, private courier,
where there 2 or more creditors, and the junior electronically, or through any means where receipt
secured creditor starts to enforce the secured of the notice can be established by a disinterested
creditor whose security interest has priority may third party. (Sec. 7.08, PPSA-IRR)
take over the enforcement as long as the junior - When notice is not required - collateral is
creditor has not yet sold, disposed, retained the perishable or threatens to decline speedily in value
collateral, or concluded an agreement for that or is of a type customarily sold on a recognized
purpose. (ie. deed of absolute sale in favor of junior market.
creditor). (Sec. 46, PPSA) c. Advertisement of the Disposition - if necessary to
comply with commercial reasonableness requirement:
DISPOSITION OF COLLATERAL: - through means determined by secured
a. Dispose or sell (private or public), in its present creditor;
condition or following any commercially reasonable - maximize awareness of the sale among
preparation or processing. (Sec. 7.06, PPSA-IRR) dealers in the type of property to which
the collateral belongs.
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d. Auction Sale: ■ Secured creditor has retained
- Indicators of good faith and commercial the collateral.
reasonableness requirement:
- Auction presider is an experienced dealer APPLICATION OF PROCEEDS:
of collateral type; ● How applied?
- Participating bidders are not in collusion; ○ Expenses for taking, holding, preparing to
- Records of auction bidder identifies and dispose, disposing, attorney’s fees, legal
bids are in writing expenses.
- Highest bidder is duly awarded the ■ Includes all expenses incurred by
collateral. the secured creditor in preserving
- Winning bidder paid the bid price upon auction the collateral in his possession
end; otherwise collateral goes to the next highest with diligence of a good father.
bidder. (Sec. 7.11(c), PPSA-IRR)
- The Dept of Finance shall create rules for ○ Satisfaction of the obligation secured by
government agencies. private agencies may form security interest of the enforcing secured
as a group and adopt rules for approval by the creditor.
Dept. of Finance. ○ Satisfaction of obligations secured by
- Can the Secured Creditor buy the collateral? subordinate secured creditors or lien in
- Secured creditor may buy the collateral at the collateral, PROVIDED, a written
a public disposition; demand and proof of interest are received
- Secured creditor may buy the collateral at (by the disposing creditor) before
a private sale if the collateral is of a kind distribution of the proceeds is completed.
customarily sold on a recognized market ○ Less value of less or deterioration suffered
or the subject of widely distributed due to failure to preserve collateral.
standard price quotations. (Sec.7.11(d), PPSA-IRR)
- Recognized market; meaning - organized market ● Will surplus be turned over by secured creditor
which: to grantor? Yes, see Sec. 52(b), PPSA
- large volumes of similar assets are bought ● Is the debtor liable for deficiency? Yes
and sold between many different sellers ● Can the parties stipulate that after the
and buyers, and accordingly disposition, the debtor is no longer liable for
- One in which prices are set by the market deficiency? Yes, see sEC. 52(B), PPSA.
and not negotiated between individual
sellers and buyers. (Sec.1.05(dd), RIGHTS OF BUYERS AND OTHER THIRD PARTIES
PPSA-IRR) ● If a secured creditor sells the collateral under this
Chapter, the buyer shall acquire the grantor’s right in the
RIGHT OF REDEMPTION: asset free of the rights of any secured creditor or lien
● Who can redeem? holder.
○ Grantor; ● If a secured creditor leases or licenses the collateral
○ Other secured creditors or lienholders under this Chapter, the lessee or licensee shall be
who, 5 days before notice to grantor, held entitled to the benefit of the lease or license during its
a security interest perfected by term.
registration. ● If a secured creditor sells, leases or licenses the
○ Any other person who notified the collateral not in compliance with this Chapter, the buyer,
disposing creditor about the former's lessee or licensee of the collateral shall acquire the
interest in the collateral, and his notice rights or benefits described in subsections (a) and (b) of
was received before the disposing creditor this section: Provided, That it had no knowledge of a
gave the notice to dispose to the grantor. violation of this Chapter that materially prejudiced the
● How to redeem? rights of the grantor or another person. (Sec. 53, PPSA)
○ By paying; or
○ By performing the secured obligation in RECOVERY IN SPECIAL CASES - upon default, the
full, including cost of enforcement. (Sec. secured creditor may extrajudicially:
7.10, PPSA-IRR) 1. Instruct the account debtor to pay and apply payment
● When can right not be exercised? to the secured obligation, after deducting the secured
○ Who can redeem has, after default, creditor’s collection expenses. (Sec.7.05(a), PPSA-IRR);
waived in writing the right to redeem; - On request of the account debtor, the Secured
○ When the collateral is: creditor shall provide evidence of its Security
■ Sold or disposed of; interest to the account debtor. (Sec. 7.05(a),
■ Acquired or collected by the PPSA-IRR)
secured creditor; or 2. In a negotiable document perfected by possession,
■ Until conclusion of an agreement collect from the negotiable document or goods
by the secured creditor with covered by the negotiable document;
effect of the first 2 items above;
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3. In a deposit account maintained by the secured
creditor, apply the balance of the deposit account to
the obligation secured by the account.
4. In other cases of security interest in a deposit account
perfected by control, instruct the deposit-taking
institution to pay the balance of the deposit account to
the secured debtor’s account by providing (a) copy of
the security agreement and (b) Secured creditor’s
affidavit stating that a default has occurred and the
secured creditor is entitled to enforce security interest
non-judicially. (sec. 7.05(d), PPSA-IRR)
VII. CONCURRENCE AND PREFERENCE
SECURED CREDITOR’S RIGHT TO RETAIN THE
OF CREDIT
COLLATERAL:
(Arts. 2236-2251, NCC)
a. After default, the secured creditor may propose to
the debtor and grantor to take all or part of the
collateral in total or partial satisfaction of the
secured obligation.
Proposal shall be sent to: A. NATURE OF CONCURRENCE AND PREFERENCE:
i. Debtor and grantor;
ii. Other secured creditors or lienholders who, 5 MEANING OF CONCURRENCE OF CREDIT:
days before notice to grantor, held a security - Implies the possession by 2 or more creditors of
interest perfected by registration; equal rights or privileges over the same specific
iii. Any other person who notified disposing property or all of the property of a debtor and the
creditor about such other person’s interest in value are insufficient to pay in full all the creditors.
the collateral, and such other person’s notice (Philippine Savings Bank vs. Lantin, 124 SCRA 476)
was received before the disposing creditor
gave the notice to dispose to the grantor. MEANING OF PREFERENCE OF CREDIT:
b. Secured creditor may retain the collateral in the - The right held by a creditor to be preferred in the
case of: payment of his claim above others (ie. to be paid
i. A proposal for the acquisition of the collateral first) out of the debtor’s assets. (Pacific Farms, inc.
in full satisfaction of the secured obligation. vs. Esguerra, 30 SCRA 684)
- But he cannot retain if the secured - Preference is only relevant if the debtor is insolvent
creditor receives an objection in wherein his or her assets are insufficient to pay
writing from any person entitled to debts in full.
receive such a proposal within 20
days after the proposal is sent. APPLICABILITY OF CONCURRENCE AND PREFERENCE
ii. A proposal; for the acquisition of the collateral OF CREDITS:
in partial satisfaction of the secured - The rules on preference of credits apply only where
obligation. 2 or more creditors have separate and distinct
- Only if the acquiring creditor claims against the same debtor who has
receives the affirmative consent of insufficient properties. (Pacific Farms, Inc. vs.
each addressee of the proposal in Esguerra, 30 scra 684)
writing within 20 days after the - Example: If A (Debtor) is able to pay all his
proposal is sent to that person. 3 creditors (B,C, and D), no need shall
c. Proposal requirements (Sec. 7.13(c), PPSA-IRR): arise in determining which of the 3
● Statement of amount to satisfy thee secured creditors shall be paid first or whether they
obligation, interest, cost of enforcement; shall be paid out of the proceeds of a
● Statement that Secured creditor proposes to specific property.
acquire asset in total or partial satisfaction of - The preferential right of credit attains significance
secured obligation; only after the properties of the debtor have been
● Statement of date when secured creditor will inventoried and liquidated, and the claims held by
acquire asset. his various creditors have been established.
(Barretto vs. Villanueva, 6 SCRA 928).
REMEDIES FOR SECURED PARTY’S FAILURE TO - Likewise, the rules on concurrence and preference
COMPLY WITH THE RULES: refers to credits which are already due. (Jacinto vs.
- Grantor needs to authorize the notice but if it is a De Leon, 51 Phil. 992)
lien, no need for consent of the person against
whom the lien is sought to be enforced. (Sec. STAGES OF INSOLVENCY:
26(c), PPSA) a. File a case;
b. Establish the debts and the insolvency;
c. Make an inventory the assets;
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d. Appoint a Liquidator; m. Properties specially exempted by law.
e. Liquidate the assets (by selling it); and 3. Future Property;
f. Paying off the creditors. 4. Property in Custodia Legis and of Public
Dominium.
NOTE: According to Atty. Llaguno, Concurrence or Preference of
credit arises only after the existence of the debtor’s insolvency. EXEMPTION OF CONJUGAL PARTNERSHIP OR
ABSOLUTE COMMUNITY PROPERTY:
- General Rule: The assets of the conjugal partnership or
the absolute community do not pass to the assignee in
B. COVERED PROPERTIES: insolvency elected by the creditors or appointed by the
court as they do not belong to the individual spouses,
but a distinct entity: the partnership or the community.
FREE PROPERTIES: - Exemption:
- These refers to assets without liens, 1. The partnership or community subsists; and
encumbrances, or not covered by 2241-2242. 2. The obligations of the insolvent spouse have not
- The debtor is liable with all his property, present redounded to the benefit of the family. (Art. 2238,
and future, for the fulfillment of his obligations, NCC)
subject to the exemptions provided by law. (Art.
NOTE: The insolvency of the husband does not dissolve the
2236, NCC)
conjugal partnership or the absolute community. (Art. 2238,
NCC)
EXCLUDED PROPERTIES:
1. Family Home;
2. Sec. 13, Rule 39, ROC: RULLE INVOLVING UNDIVIDED SHARE OR INTEREST
a. The judgment obligor's family home as provided OF A CO-OWNER:
by law, or the homestead in which he resides, - If there is a co-ownership and one of the
and land necessarily used in connection co-owners is the insolvent debtor, his undivided
therewith; share or interest in the property shall be possessed
b. Ordinary tools and implements personally used by the assignee in insolvency proceedings because
by him in his trade, employment, or livelihood; it is part of his assets. (See Art. 2239, NCC)
c. Three horses, or three cows, or three carabaos, - The share of the other co-owners cannot be taken
or other beasts of burden, such as the judgment possession of by the assignee. (Art. 2239, NCC)
obligor may select necessarily used by him in his
ordinary occupation; WHEN PROPERTY IS HELD IN TRUST:
d. His necessary clothing and articles for ordinary - Property held by the insolvent debtor as a trustee
personal use, excluding jewelry; of an express or implied trust, shall be excluded
e. Household furniture and utensils necessary for from the insolvency proceedings. (Art. 2240, NCC)
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the C. HOW CREDITS ARE SATISFIED:
judgment obligor may select, of a value not
exceeding one hundred thousand pesos;
f. Provisions for individual or family use sufficient CLASSIFICATION OF CREDITS:
for four months; 1. Special preferred credits;
g. The professional libraries and equipment of 2. Ordinary preferred credits; and
judges, lawyers, physicians, pharmacists, 3. Common credits (Republic vs, Peralta, 150 SCRA
dentists, engineers, surveyors, clergymen, 37)
teachers, and other professionals, not exceeding
three hundred thousand pesos in value; A. SPECIAL PREFERRED CREDITS:
h. One fishing boat and accessories not exceeding
the total value of one hundred thousand pesos With respect to Specific Movable Property (of the
owned by a fisherman and by the lawful use of debtor) - the following claims or liens shall be preferred:
which he earns his livelihood; 1. Duties, taxes and fees due thereon to the State or
i. So much of the salaries, wages, or earnings of any subdivision thereof;
the judgment obligor for his personal services 2. Claims arising from misappropriation, breach of
within the four months preceding the levy as are trust, or malfeasance by public officials committed
necessary for the support of his family; in the performance of their duties, on the movables,
j. Lettered gravestones; money or securities obtained by them;
k. Monies, benefits, privileges, or annuities 3. Credits for the making, repair, safekeeping or
accruing or in any manner growing out of any life preservation of personal property, on the movable
insurance; thus made, repaired, kept or possessed;
l. The right to receive legal support, or money or 4. Claims for laborers' wages, on the goods
property obtained as such support, or any manufactured or the work done;
pension or gratuity from the Government; 5. For expenses of salvage, upon the goods salvaged;
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6. Credits between the landlord and the tenant, 9. Claims of donors or real property for pecuniary
arising from the contract of tenancy on shares, on charges or other conditions imposed upon the
the share of each in the fruits or harvest; donee, upon the immovable donated;
7. Credits for transportation, upon the goods carried, 10. Credits of insurers, upon the property insured, for
for the price of the contract and incidental the insurance premium for two years. (Art. 2242,
expenses, until their delivery and for thirty days NCC)
thereafter;
8. Credits for lodging and supplies usually furnished
to travellers by hotel keepers, on the movables
belonging to the guest as long as such movables Rules on Concurrence:
are in the hotel, but not for money loaned to the A. For Movable Properties:
guests; - General Rule:
9. Credits for seeds and expenses for cultivation and - All creditors with liens on the same property
harvest advanced to the debtor, upon the fruits concur over the said property, meaning, claims
harvested; concurring over the same property are satisfied
10. Credits for rent for one year, upon the personal pro-rata, if the value is insufficient. (Art. 2246,
property of the lessee existing on the immovable NCC).
leased and on the fruits of the same, but not on - If the creditor has sole lien on the property, his
money or instruments of credit; claim will be prioritized over said property. (Art.
11. Claims in favor of the depositor if the depositary 2247, NCC)
has wrongfully sold the thing deposited, upon the - Exception on concurrence over the same
price of the sale. property:
- The State is given priority with respect to the
In the foregoing cases, if the movables to which the lien taxes on the movable property but it will defer
or preference attaches have been wrongfully taken, the to Security Interests if the Security Interests are
creditor may demand them from any possessor, within earlier in date because of modifying provisions
thirty days from the unlawful seizure. (Art. 2242, except of the PPSA. (Art. 2243, NCC; Sec. 22, PPSA)
3-4, NCC) - Security Interests on movable property are
given priority over other creditors (lien holders)
based on date of perfection, or between
Note: Sec. 22, PPSA, repealed Art. 2242(3-4), NCC.
Security Creditors type of perfection.
- Over a certificate stocks, creditor in possession
With respect to Specific Immovable Property (of the of certificates is preferred over the creditor
debtor) - the following claims, mortgages, and liens shall be whose Security Interest is registered.
preferred, and shall constitute an encumbrance on the
immovable real right: How to Settle the Liens on a Specific Property?
1. Taxes due upon the land or building; 1. Settle the taxes on the Movable Property;
2. For the unpaid price of real property sold, upon the 2. Settle the Security Interests on the movable
immovable sold; property;
3. Claims of laborers, masons, mechanics and other 3. If there is a remainder Pro-rate the remaining
workmen, as well as of architects, engineers and portion to all other lienholders on the movable
contractors, engaged in the construction, property.
reconstruction or repair of buildings, canals or
other works, upon said buildings, canals or other Rule If the value of the property is More or Less than the
works; value of the Total Special Preferred Credits Concurring:
4. Claims of furnishers of materials used in the
If the value of the The residual value will form part
construction, reconstruction, or repair of buildings,
property is MORE of the free property.
canals or other works, upon said buildings, canals
or other works; than the value of the
Total Special Preferred
5. Mortgage credits recorded in the Registry of
Property, upon the real estate mortgaged; Concurring Credits:
6. Expenses for the preservation or improvement of
real property when the law authorizes If the value of the The unsatisfied balance of the
property is LESS than tax liens and other such
reimbursement, upon the immovable preserved or
the value of the Total preferred credits are to be
improved;
Special Preferred treated as ordinary preferred
7. Credits annotated in the Registry of Property, in
Concurring Credits: credits under Art. 2244, NCC,
virtue of a judicial order, by attachments or
executions, upon the property affected, and only as and to be paid in the order of
to later credits; preference therein provided.
8. Claims of co-heirs for warranty in the partition of an (Art. 2251, NCC)
immovable among them, upon the real property
thus divided; B. For Immovable Properties:
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- General Rule: All creditors concur over the same 4. Expenses during the last illness of the debtor or of
property. Claims concurring over the same property his or her spouse and children under his or her
are satisfied pro-rata. (Art. 2249, NCC) parental authority, if they have no property of their
- Exception: The State is given priority with respect to own;
taxes on the immovable property. (Art. 2243, NCC) 5. Compensation due the laborers or their
dependents under laws providing for indemnity for
damages in cases of labor accident, or illness
resulting from the nature of the employment;
6. Credits and advancements made to the debtor for
Process to Settle Lienson a Specific Immovable support of himself or herself, and family, during the
Property: last year preceding the insolvency;
1. Settle the taxes on the immovable property 7. Support during the insolvency proceedings, and for
2. If there is a remainder pro-rate the remaining three months thereafter;
portion to all other lienholders on the immovable 8. Fines and civil indemnification arising from a
property. criminal offense;
9. Legal expenses, and expenses incurred in the
Rule If the value of the property is More or Less than the administration of the insolvent's estate for the
value of the Total Special Preferred Credits Concurring: common interest of the creditors, when properly
authorized and approved by the court;
If the value of the The residual value will form part
10. Taxes and assessments due the national
property is MORE of the free property.
government, other than those mentioned in articles
than the value of the
2241, No. 1, and 2242, No. 1;
Total Special Preferred
11. Taxes and assessments due any province, other
Concurring Credits:
than those referred to in articles 2241, No. 1, and
2242, No. 1;
If the value of the The unsatisfied balance of the
12. Taxes and assessments due any city or
property is LESS than tax liens and other such
municipality, other than those indicated in articles
the value of the Total preferred credits are to be
2241, No. 1, and 2242, No. 1;
Special Preferred treated as ordinary preferred
13. Damages for death or personal injuries caused by a
Concurring Credits: credits under Art. 2244, NCC,
quasi-delict;
and to be paid in the order of
14. Gifts due to public and private institutions of charity
preference therein provided.
or beneficence;
(Art. 2251, NCC)
15. Credits which, without special privilege, appear in
(a) a public instrument; or (b) in a final judgment, if
B. CREDITS UNDER PPSA: they have been the subject of litigation. These
credits shall have preference among themselves in
Effect of the Grantor’s Insolvency on the Priority of a the order of priority of the dates of the instruments
Security Interest: and of the judgments, respectively. (Art. 2244,
- Subject to the applicable insolvency law, a security NCC)
interest perfected prior to the commencement of
insolvency proceedings in respect of the grantor In case of Bankruptcy of the Employers:
shall remain perfected and retain the priority it had - In the event of bankruptcy or liquidation of an
before the commencement of the insolvency employer’s business, his workers shall enjoy first
proceedings. (Sec. 22, RA 11057, PPSA) preference as regards their wages and other
monetary claims, any provisions of law to the
C. ORDINARY PREFERRED CREDITS: contrary notwithstanding. Such unpaid wages and
monetary claims shall be paid in full before claims
NOTE: Ordinary Preferred Credits (Preference of Credits) are of the government and other creditors may be paid.
paid out of the debtor’s free properties. (Art. 110, Labor Code of the Philippines)
Other real and personal property (of the debtor) - the D. COMMON CREDITS:
following claims or credits shall be preferred in the following
order: What are Common Credits?
1. Laborers; - Common credits are those which do not fall under
2. Proper funeral expenses for the debtor, or children Articles 2241, 2242, and 2244, NCC. They enjoy no
under his or her parental authority who have no preference and shall be paid pro-rata regardless of
property of their own, when approved by the court; dates. (See Art. 2245, NCC)
3. Credits for services rendered the insolvent by - Satisfied pro-rata regardless of dates.
employees, laborers, or household helpers - Example: Unnotarized Promissory Notes.
preceding the commencement of the proceedings
in insolvency;
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ORDER OF CREDITS:
Pro-rata Rule:
- If there are 2 or more credits with respect to the
same specific real property or real rights, they shall
be satisfied pro-rata, after the payment of the taxes
and assessments upon the immovable property or
real rights. (Art. 2249, NCC)
Proceeding Required for Adjudication of Claims of
preferred Creditors:
- There must be first some proceeding where the
claims of all preferred creditors may be bindingly
adjudicated, such as the following:
a. Insolvency;
b. Settlement of Estate;
c. Other liquidation proceedings of similar
import. (p.766, De Leon, Credit
Transactions, 2021)
Rule on the Residual Value:
- The excess (if any) after the payment of the credits
which enjoy preference with respect to specific
property (real or personal) shall be added to the
free property which the debtor may have, for the
payment of the other credits. (Art. 2250, NCC)
- If the value is less, Article 2251, NCC, shall govern.
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