Pledge Mortgage Antichresis

Definition

A contract wherein the A mortgage contract is a Art. 2132. By the

debtor delivers to the
creditor or to a third
person a movable
or document evidencing
incorporeal rights for the
purpose of securing
fulfillment of
a principal obligation
with the understanding
that when the obligation
is fulfilled,
the thing delivered shall
be returned with all its
fruits and accessories.
legal contract between a
lender and homebuyer that
creates the terms and
conditions surrounding a
housing loan. The contract
sets the terms and
conditions of the
relationship between the
two parties. It also
determines the amoung of
the loan and the proposed
repayment schedule.
contract of antichresis
the creditor acquires the
right to receive the fruits of
an immovable of his
debtor, with the
obligation to apply them
to the payment of the
interest, if owing, and
thereafter to the principal
of his credit. (1881)

Principal Obligation secured

(a) valid, voidable, and unenforceable obligations (Arts. 2086,

2052);
(b) civil or natural obligations (Arts. 2086, 2052);
(c) pure obligations and conditional obligations;
(d) present debts and debts to be incurred in the future;
(e) payment obligations and performance obligations

As to subject matter

Art. 2094. All movables, which
are within commerce, may be
pledged, provided they are
susceptible of possession.
(1864)
Art. 2124. Only the Movable
following property may be
the object of a contract of
mortgage:

Art. 2095. Incorporeal rights, (1) Immovables;

evidenced by negotiable
instruments, bills of lading,
shares of stock, bonds,
(2) Alienable real
warehouse receipts and rights in accordance with
similar documents may also the laws, imposed upon
be pledged. The instrument immovables.
proving the right pledged shall
be delivered to the creditor,
and if negotiable, must be
Nevertheless, movables
indorsed. (n) may be the object of a
chattel mortgage. (1874a)
 Essential Requisites

(1) That they be constituted to secure the fulfillment of a principal obligation; (2) That the
pledgor or mortgagor be the absolute owner of the thing pledged or mortgaged; (3) That (1)
Consent of the contracting parties; (2) object certain the persons constituting the pledge or
mortgage have the free disposal of their property, and in teh absence thereof, that they be
legally authorized for the purpose. Art. 2085. (4) It which is the subject matter of the contract;
(3) cause of the is also of the essence of these contracts that when the principal obligation
becomes due, the things in which the pledge or mortgage consists may be alienated for the
payment to obligation which is established. the creditor. Art. 2087

As to nature of the Contract

Art. 2093 Real Contract Formal Contract Art. 2134 Concensual and
(Actual delivery of possession formal contract (amount of
is necessary) the principal and of the
interest must be in writing)

Characteristics of the Contract

F-A-N-C: Formal, Accessory,

Nominate, Consensual

As to purpose

Intended to secure the performance of a principal and pre-existing obligation by specially

subjecting to such delivery, property, or the fruits thereof.

As to ownership of the thing

Retained by mortgagor or owner of the thing mortgaged.

As to possession of the thing

Property is delivered to the Generally, mortgagor-debtor Antichretic creditor has

pledgee, or by common
consent to a person (Art.
2093)
retains possession of the possession of the property
Mortgagor-debtor retains
possession of the thing
thing mortgaged; However,
mortgagor-debtor may elect
to deliver the property to
mortgagee. A mortgagee in
mortgaged possession has
rights and obligations similar
to those of an antichretic
creditor.

As time to return

Upon full payment of the

debtor
 As to Excess Proceeds in Case of Sale

(Arts. 2115, and 2121) Mortgagor is entitled to Debtor is entitled to the

Generel Rule: debtor is not
entitled to excess; Exception:
1.When it is agreed upon;
and
2. in the case of a legal
pledge
balance from the proceeds of
the sale.
excess in case antichretic
creditor files a petition for the
sale of the real property as in
a foreclosure of mortgages
under Rule 68 of the Rules of
Court.

As to right to recover deficiency of the case of sale

Creditor is not entitled to Mortgagee is entitled to Antichretic creditor is entitled

recover notwithstanding any recover deficiency to recover deficiency.
contrary stipulation
(Art. 2115)

As to Modes of Extinguishment

Upon the fulfillment of the Upon fulfillment of the Upon payment of the
principal obligation or by the principal obligation or by the principal obligation (Art.
destruction of the thing; upon destruction of the thing. 1231)
return of the thing pledged to (Art. 1231)
the pledgor or owner; upon a
statement in writing by the
pledgee that he renounces or
abandons the pledge; sale of
the thing pledged
extinguishes the principal
obligaiton (Art. 2110, 2111,
2115)
Not valid against third
persons unless a description
of the th Can sell the thing
pledged with the consent of
the pledgee