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Title XI - LOAN
General Provisions
(Articles 1933 1934)
Bailment, defined
It is the delivery of property of one person to another in trust for a specific purpose, with a contract,
express or implied, that the trust shall be faithfully executed and the property returned or duly
accounted for when the special purpose is accomplished or kept until the bailor reclaims it.
In MUTUUM:
1. Lender - the one who delivers
2. Borrower - the one who receives
Classes
Art. 1933. By the contract of loan, one of the parties delivers to another, either something not
consumable so that the latter may use the same for a certain time and return it, in which case the
contract is called a 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 mutuum.
Commodatum is essentially gratuitous.
Simple loan may be gratuitous or with a stipulation to pay interest.
In commodatum the bailor retains the ownership of the thing loaned, while in simple loan, ownership
passes to the borrower.
Personal in character
Characteristics
1. REAL Loan is perfected by delivery of the thing loaned.
Art. 1934. An accepted promise to deliver something by way of commodatum or simple loan is
binding upon parties, but the commodatum or simple loan itself shall not be perfected until the
delivery of the object of the contract.
2. UNILATERAL Loan produces obligations only for the borrower. Obligations of the lender are either
incidental to ownership or consequences of the borrowers rights and duties.
Distinctions
Commodatum
Mutuum
Character
Essentially gratuitous
Naturally gratuitous
Object
Purpose
Effect
Duration
Personal in character
CHAPTER I
COMMODATUM
Section I Nature of Commodatum
(Articles 1935 1940)
Contract of Commodatum, Concept
The right to use is limited to the thing loaned but not to its fruits unless there is a stipulation to the
contrary.
Purpose: The right to use is limited to the thing loaned for a certain time or period. If bailee not entitled
to the use of the thing, the contract may be a DEPOSIT not a Commodatum.
Bailor need not be the owner: Since ownership is not transferred in a Commodatum, the bailor need
not be the owner of the thing loaned. It is sufficient that the bailor has such possessory interest in the
subject matter or right to its use which he may assert against the bailee and the third persons
although not against the rightful owner.
Commodatum is purely personal: Death of either bailor or bailee extinguishes or terminates the
contract unless, by stipulation the Commodatum is transmitted to the heirs of either or both parties. If
there are two or more borrowers/bailee, the death of one does not extinguish the contract in the
absence of stipulation to the contrary. (Source: De Leon)
Cases:
Commodatum is essentially gratuitous
REPUBLIC vs. BAGTAS
FACTS:
Jose V. Bagtas borrowed from the Republic of the Philippines through the Bureau of Animal Industry three
bulls for a period of one year for breeding purposes subject to a government charge of breeding fee of
10% of the book value of the bulls. Upon the expiration of the contract, the borrower asked for a renewal
for another period of one year. However, the Secretary of Agriculture and Natural Resources approved a
renewal thereof of only one bull for another year and requested the return of the other two. Bagtas wrote
to the Director of Animal Industry that he would pay the value of the three bulls and later reiterated his
desire to buy them at a value with a deduction of yearly depreciation to be approved by the Auditor
General. The Director of Animal Industry advised him that the book value of the three bulls could not be
reduced and that they either be returned or their book value paid not later which Bagtas failed to pay or
to return. An action against him was commenced, praying that he be ordered to return the three bulls
loaned to him or to pay their book value with interests, and costs; and that other just and equitable relief
be granted. Bagtas answered that because of the bad peace and order situation in Cagayan Valley,
particularly in the barrio of Baggao, and of the pending appeal he had taken to the Secretary of
Agriculture and Natural Resources and the President of the Philippines from the refusal by the Director of
Animal Industry to deduct from the book value of the bulls corresponding yearly depreciation of 8% from
the date of acquisition, to which depreciation the Auditor General did not object, he could not return the
animals nor pay their value and prayed for the dismissal of the complaint.
The appellant contends that the Sahiniwal bull was accidentally killed during a raid by the Huks in
November 1953 upon the surrounding barrios of Hacienda Felicidad Intal, Baggao, Cagayan, where the
animal was kept, and that as such death was due to force majeure she is relieved from the duty of the
returning the bull or paying its value to the appellee.
ISSUE:
Whether or not Bagtas is relieved from the duty of returning or paying for the value of the bull.
SC RULING:
Bagtas is not relieved of his obligation. The loan by the appellee to the late defendant Bagtas of the three
bulls for breeding purposes for a period of one year, later on renewed for another year as regards one
bull, was subject to the payment by the borrower of breeding fee of 10% of the book value of the bulls.
The appellant contends that the contract was commodatum and that, for that reason, as the appellee
retained ownership or title to the bull it should suffer its loss due to force majeure. A contract of
Kinds
1. ORDINARY - has a definite period stipulated. One of the parties delivers to another something not
consumable so that the latter may use the same for a certain time and return it. In the ordinary
commodatum, the possession of the bailee is more secure for he has the right to retain the thing
loaned until the expiration of the period agreed upon, or the accomplishment of the use for which
the commodatum has been constituted.
2. PRECARIUM - no definite time or use stipulated, or merely tolerated. One whereby the bailor may
demand the thing loaned at will (art.1947) if neither the duration of the contract nor the use to
which the thing loaned should be devoted has been stipulated, or if the use of the thing is merely
tolerated by the owner.
Cases:
If neither the duration of the contract nor the use of the thing loaned is stipulated
QUINTOS vs. BECK
FACTS:
Beck was a tenant of Quintos and occupied the latter's house. Upon the novation of the contract of lease
between the plaintiff and the defendant, the former gratuitously granted to the latter the use of the
furniture, subject to the condition that the defendant would return them to the plaintiff upon the latter's
demand. The plaintiff sold the property to Maria Lopez and Rosario Lopez and on notified the defendant of
the conveyance, and asked him to vacate the premises. Also, Quintos required the defendant to return all
the furniture transferred to him for them in the house where they were found.
Beck wrote a letter to the plaintiff informing her that he could not give up the three gas heaters and the
four electric lamps because he would use them until the 15th of the same month when the lease in due to
expire. before vacating the house, the defendant deposited with the Sheriff all the furniture belonging to
the plaintiff and they are now on deposit in the warehouse situated at No. 1521, Rizal Avenue, in the
custody of the said sheriff.
ISSUE:
1. Whether the defendant complied with his obligation to return the furniture upon the plaintiff's
demand;
2. whether the latter is bound to bear the deposit fees thereof,
3. whether she is entitled to the costs of litigation.
SC RULING:
The contract entered into between the parties is one of commadatum, because under it the plaintiff
gratuitously granted the use of the furniture to the defendant, reserving for herself the ownership thereof;
by this contract the defendant bound himself to return the furniture to the plaintiff, upon the latters
demand
Issue 1:
YES, The obligation voluntarily assumed by the defendant to return the furniture upon the plaintiff's
demand, means that he should return all of them to the plaintiff at the latter's residence or house.
Issue 3:
Yes, the plaintiff is entitled to the payment thereof by the defendant in case of his inability to return some
of the furniture because under paragraph 6 of the stipulation of facts, the defendant has neither agreed
to nor admitted the correctness of the said value.
The costs in both instances should be borne by the defendant because the plaintiff is the prevailing
party. The defendant was the one who breached the contract of commodatum, and without any reason he
refused to return and deliver all the furniture upon the plaintiff's demand. The expenses which may be
occasioned by the delivery to and deposit of the furniture with the Sheriff shall be for the account of the
defendant. the defendant shall pay the costs in both instances
Pactum de Commodando
Requisites
1. CAPACITY - no special capacity. Any person entitled to possession may be the lender so long as his
rights to the thing are not strictly personal. (Lender need not be the owner; a lessee may
constitute a contract of Commodatum; a thief may even be a bailor.)
2. OBJECT - must be non-fungible. If consumable, valid so long as the use agreed upon will not to
consume it (for exhibition purposes). It may be real or personal
3. CONSIDERATION - gratuitous. If not, it ceases to be a Commodatum. (maybe a lease)
4. FORM - no special form is required. Commodatum starts from the moment the thing is delivered.
Section II Obligations of the Bailee
(Articles 1941 1945)
Rights and Obligations of the Bailee
Right of a BAILEE:
A personal right to use the thing, but not to use its fruits unless stipulated by the parties. He can
neither lend nor lease the thing to a stranger who is not a member of his household because the
contract is personal.
Obligations of a BAILEE:
1. To preserve the thing.
2. To incur expenses required by the use and preservation of the thing, without reimbursement.
3. To return the thing at the expiration of the contract.
The bailee cannot retain the thing on account of the bailors obligation or bailors debt.
4. He does not answer for damages not due to his fault, but only due to use
If the bailee should commit an offense against the person, the honor or the property of the
bailor, or the wife or children under his parental authority
If the bailee imputes to the bailor any criminal offense, or any act involving moral turpitude,
even though he should prove it, unless the crime or the act has been committed against the
bailee himself, his wife, or children under his authority
If the bailee unduly refuses the bailor support when the bailee is legally and morally bound to
give support to the bailor
Chapter II
SIMPLE LOAN or MUTUUM
(Articles 1953 1961)
Concept
It is a contract whereby one party delivers to another money or fungible thing, on the condition of
returning the same kind, amount and quality. If the object loaned is not fungible but the borrower is to
return another of the same kind and quality, it is barter.
Cases:
Mutuum vs. Commodatum
CHEE KIONG YAM vs. MALIK
FACTS:
This is a petition for certiorari, prohibition, and mandamus with preliminary injunction. Petitioners
alleged that respondent Municipal Judge Nabdar J. Malik of Jolo, Sulu, acted without jurisdiction, in excess
of jurisdiction and with grave abuse of discretion when:
(a) he held in the preliminary investigation of the charges of estafa filed by respondents Rosalinda Amin,
Tan Chu Kao and Augusto Sajor against petitioners that there was a prima facie case against the latter;
(b) he issued warrants of arrest against petitioners after making the above determination; and
(c) he undertook to conduct trial on the merits of the charges which were docketed in his court as
Criminal Cases No. M-111, M-183 and M-208.
In the three criminal cases the respondents charges the petitioner with estaffa through
misappropriation, however in the face of the documents it state that the amount received was in the
nature of a simple loan.
ISSUE:
Whether or not the petitioners in this case can be charged of estaffa when the obligation is said to
be that of simple loan.
SC Ruling:
We agree with the petitioners that the facts alleged in the three criminal complaints do not
constitute estafa through misappropriation.
Consumable
Muttum involves money or any other fungible things. If not fungible, the contract is barter.
3. Consideration
Gratuitous or onerous.
4. Form
No special form is needed; but there must be delivery, as the contract is real.
To return the thing or amount borrowed at the period stipulated or fixed according to general rules.
b.
If the thing borrowed is not money, to return the same amount in equal kind and quality,
even if the price has changed or else its value at the time the contract was perfected.
To Pay Interest
When the stipulation to pay is verbal, the volountary payment is valid as a performance of a
natural obligation. (But GR: Verbal void; EXCP: voluntary payment)
Interest paid even if not stipulated, is not recoverable, it being proof of a tacit contract or a natural
obligation.
a. Except where it is proved that the interest was paid by error (solution indebiti)
b. Interest payable in kind, it is appraised at the current price at the time of payment (Art.
1958)
c. Interest due shall not earn interest (no compounding) in the absence of agreement and
without prejudice to Art 2212 (interest after judicial demand) (Art. 1595)
d. The following are not considered interest:
Increase in the price when the sale is on installment
Attorneys fees for cost of collection
Penalty for breach
Bank deposits, whether fixed savings or current are governed by the provisions concerning simple
loan.
Cases:
Payment in Currency Stipulated
RONO vs. GOMEZ
FACTS:
Cristobal Roo received as a loan four thousand pesos in Japanese fiat money from Jose L.
Gomez. He informed the later that he would use the money to purchase a jitney; and he agreed to pay
that debt one year after date in the currency then prevailing. After the liberation, Roo was sued for
payment. His main defense was his liability should not exceed the equivalent of 4,000 pesos "mickey
mouse" money and could not be 4,000 pesos Philippine currency, because the contract would be void
as contrary to law, public order and good morals.
ISSUE:
Whether or not the contract is contrary to the Usury law, because on the basis of calculations by
Government experts Roo only received the equivalent of one hundred Philippine pesos and now he is
required to disgorge four thousand pesos or interest greatly in excess of the lawful rates.
SC RULING:
No, he is not paying interest. The contract says that the money received "will not earn any
interest." Furthermore, he received four thousand pesos; and he is required to pay four thousand pesos
exactly. The increased intrinsic value and purchasing power of the current money is consequence of an
event (change of currency) which at the time of the contract neither party knew would certainly happen
within the period of one year. They both elected to subject their rights and obligations to that
contingency. If within one year another kind of currency became legal tender, Gomez would probably get
more for his money. If the same Japanese currency continued, he would get less, the value of Japanese
money being then on the downgrade.
Attorneys fees
ANDREAS vs. GREEN
FACTS:
The defendant and appellant questions the clause in the promissory note sued on reading "and a further
sum equal to 10 per cent of the total amount due as and for expenses of collection for attorney's fees
whether actually incurred or not," as in contravention of the Usury Law.
SC RULING: Stipulations in negotiable instruments for the payment of collection and attorney's fees are
not forbidden by lay in this jurisdiction. The lender may without violating the Usury Law provide in a note
for an attorney's fee to cover the cost of collection. This has been definitely held in a long line of cases
both here and elsewhere. The purpose of a stipulation in a note for reasonable attorney's fees
is not to give the lender a larger compensation for the loan than the law allows, but is to
safeguard the lender against future loss or damage by being compelled to retain counsel to
institute judicial proceedings to collect his debt.
The only difference between the provision of the promissory note here complained of and the provision
of the promissory notes in any of the above-cited cases is that the note before us contains these
additional words: "whether actually incurred or not." But this clause is merely descriptive in nature is
in reality merely surplusage. The idea of the parties was to provide for a penalty to cover expenses of
collection. That such expenses were actually incurred in this case is now before the appellate court for
decision. Whether the creditor could enforce the penalty where expenses of collection and attorney's
fees were not actually incurred, is questionable, but does not affect the result in this case.
Judgment affirmed.
Bank Deposits
Cases:
Nature of Bank Deposits
GOPOCO GROCERY vs. PACIFIC COAST BISCUIT
FACTS:
The Mercantile Bank of China was declared in liquidation. Creditors and all those who had any claim
against it were required to present the same before the Bank Commissioner within 90 days. Gopoco
presented its claim.
ISSUE:
What is the real nature of current account a savings deposit?
SC RULING:
The current account and savings deposit have lost their character as deposits and are converted into
simple commercial loans because in cases of such deposits, the bank has made use thereof in the
ordinary course of its transactions as an institution engaged in the banking business, not because it so
wishes but precisely because of the authority deemed to have been granted to it by the depositors to
enable him to collect the interest which they had been and they are now collecting, and by virtue further
of the authority granted to it by Section 125 of the Corporation Law and the Banking Law. The deposits
created a juridical relation of creditor and debtor. The back acquired ownership of the money deposited.
Cable Address:
"COMTRUST"
COMMERCIAL BANK AND TRUST COMPANY
of the Philippines
Quezon City Branch
December 8, 1975
Kinds
Judicial (Sequestration) takes place when an attachment or seizure of property in litigation is ordered.
Extra-judicial (Art.1967)
a. Voluntary kind where the delivery is made by the will of the depositor or by two or more persons
each of whom believes himself entitled to the thing deposited.
b. Necessary one made in compliance with a legal obligation, or on the occasion of any calamity, or
by travellers in hotels and inns, or by travellers with common carriers.
The main difference between a voluntary deposit and a necessary deposit is that in the former, the
depositor has a complete freedom in choosing the depositary, whereas in the latter, there is lack of free
choice in the depositor.
Judicial
Extra-judicial
1. Creation
Will of the court
Will of the parties or contract
2. Purpose
Security or to insure the right of a party to Custody and safekeeping
property or to recover in case of favorable
judgment
3. Subject Matter
Movables or immovables,
Movables only
but generally immovables
Always onerous
4. Cause
May be compen-sated or not, but generally
Simple Loan
The essential cause for the transaction is the
necessity of the buyer
Cases:
Deposit with interest
Compania Agricola vs. Nepomoceno
FACTS:
It appears from the record that on March 17, 1927, the registered partnerships, Mariano Velasco &
Co., Mariano Velasco, Sons, & Co., and Mariano Velasco & Co., Inc., were, on petition of the creditors,
declared insolvent by the Court of First Instance of Manila.
On the 16th day of April, 1927, the Compania Agricola de Ultramar filed a claim against one of the
insolvents Mariano Velasco & Co., claiming the sum of P10,000, with the agreed interest thereon at the
rate of 6 per cent per annum from April 5, 1918, until its full payment was a deposit with said Mariano
Velasco & Co. and asked the court to declare it a preferred claim.
The assignee of the insolvency answered the claim by interposing a general denial. The claim was
thereupon referred by the court to a Commissioner to receive the evidence, and on September 23, 1929,
the court rendered a decision declaring that the alleged deposit was a preferred claim for the sum
mentioned, with interest at 6 per cent per annum from April 5, 1918, until paid.
ISSUE:
Whether or not the contract entered into by Compania Agricola with Mariano Velasco & Co. is that
of loan or a deposit.
SC Ruling:
In our opinion the court below erred in finding that the claim of the appellee should be considered
a deposit and a preferred claim. In the case of Gavieres vs. De Tavera (1 Phil., 17), very similar to the
present case, this court held that the transaction therein involved was a loan and not a deposit, the court
held;
Although in the document in question a deposit is spoken of, nevertheless from an
examination of the entire document it clearly appears that the contract was a loan and that such
was the intention of the parties. It is unnecessary to recur to the cannons of interpretation to
arrive at this conclusion. The obligation of the depository to pay interest at the rate of 6 per cent
to the depositor suffices to cause the obligation to be considered as a loan and makes it likewise
evident that it was the intention of the parties that the depository should have the right to make
use of the amount deposited, since it was stipulated that the amount could be collected after
notice of two months in advance. Such being the case, the contract lost the character of a deposit
and acquired that of a loan. (Art. 1768, Civil Code.)
Article 1767 of the Civil Code provides that
"The depository cannot make use of the thing deposited without the express
permission of the depositor."
"Otherwise he shall be liable for losses and damages."
Article 1768 also provides that
"When the depository has permission to make use of the thing deposited, the
contract loses the character of a deposit and becomes a loan or bailment."
"The permission not be presumed, and its existence must be proven."
The two cases quoted are sufficient to show that the ten thousand pesos delivered by the
appellee to Mariano Velasco & Co. cannot de regarded as a technical deposit. But the appellee argues
that it is at least an "irregular deposit."
Manresa, in his Commentaries on the Civil Code (vol. 11, p. 664), states that there are three
points of difference between a loan and an irregular deposit. The first difference which he points out
consists in the fact that in an irregular deposit the only benefit is that which accrues to the depositor,
Chapter 2
Voluntary Deposit
Section 1 General Provisions
(Articles 1968 1971)
Voluntary Deposit
It is wherein the delivery is made by the will of the depositor or by two or more persons each of
whom believes himself to be entitled to the thing deposited
Voluntary deposit vs. necessary deposit: In voluntary deposit the depositor has complete freedom in
choosing the depositary, whereas in necessary deposit there is a lack of choice in the depositor.
Kinds
a. Where the deposit is by the will of the depositor (complete freedom)
b. Where the deposit is by two claimants, and the thing is to be delivered to the one found to be entitled
to it. (conflicting adversarial claims)
Requisites
A. Capacity of the parties: no special capacity is required- the depositor need not be the owner of the
thing and may even be incapacitated.
1. Where the depositor is capable and the depository is incapable
i.
The depositor may recover the thing while in the depositarys possession.
ii.
If the depositary alienates the thing, he must return the price or amount of enrichment.
2. Where the depositor is incapable, and the depositary is capable. T
i.
The depositary may be compelled to return the thing by the guardians or by the depositor
himself if he should acquire capacity. (Capacity is required in the depositor for claiming the
return but not for making a deposit.)
Extinguishment:
General Causes:
Upon the loss or destruction of the thing deposited.
If gratuitous, upon the death of either the depositor or the depositary.
Other Causes:
By claim of the deposit by the depositor at ant time.
By renunciation of the depositary unless deposit is for consideration.
The depositary who may have just reason for not keeping the deposit may,
even before the term expires, return to the depositor and if the later refuse, he
may obtain its consignation from the court. [Art. 1989]
The reasons must be real and serious: examples; excessive period,
need to go abroad, serious danger of loss.
Reasons known at the time the deposit was accepted and not properly
invoked at that time are unavailing.
Death of either property, if the deposit is gratuitous;
But deposit is not extinguished by compensation [Art.1200]
Chapter 3
Necessary Deposit
(Articles 1996 2004)
Necessary Deposit
A deposit is necessary: (1) When it is made in compliance with a legal obligation; (2) When it takes
place on the occasion of any calamity, such as fire, storm, flood, pillage, shipwreck, or other similar events.
(Article 1996)
Kinds
1. Those made in compliance with legal obligations
It shall be governed by the provisions of the law establishing it, and in case of its deficiency, by the
rules on voluntary deposit.
Example: A borrowed P100,000. 00 from B, and as security thereof, pledged his diamond ring. If B uses
the ring without the authority of A, A may ask that the ring be judicially or extrajudicially deposited.
(Article 2104, Civil Code the creditor cannot use the thing pledged, without the authority of the
2.
3.
4.
owner, and if he should do so, or should misuse the thing in any other way, the owner may ask that it
be judicially or extrajudicially deposited." When the preservation of the thing pledged requires its use,
it must be used by the creditor but only for that purpose.
When it takes place on the occasion of any calamity, such as fire, storm, flood, pillage, shipwreck, or
other similar events.
It shall be regulated by the provisions concerning voluntary deposit and by Article 2168 when
during fire, flood, storm, or other calamity, property is saved from destruction by another person
without the knowledge of the owner; the latter is bound to pay the former just compensation.
Example: In a fire, Jose save Pedros car. Jose is in possession of the car; Jose is supposed to be its
depositary. Deposits made on the occasion of a calamity have been fittingly termed depositos
miserable.
That made by travelers in hotels or inns.
The keepers of hotels or inns shall be responsible for them as depositaries, provided that notice
was given to them, or to their employees, of the effects brought by the guests and that, on the
part of the latter, they take the precautions which said hotel-keepers or their substitutes advised
relative to the care and vigilance of their effects.
Travellers refer to transient and was certainly not meant to include ordinary or regular boarders
in any apartment, house, inn or hotel. Guest is synonymous to travellers. Non-transient are
governed by the rules on lease.
Nature of Precautions to be given to guests may be given directly or orally to the guests, or may
be typed or printed on posters.
The liability or responsibility by the hotel or inn keeper commences as soon there is an evident
intention on the part of the travelers to avail himself of the accommodations of the hotel or inn. It
does not matter whether compensation has already been paid or not, or whether the guest has
already partaken of food and drink or not.
The hotel-keeper cannot free himself from responsibility by posting notices to the effect that he is
not liable for the articles brought by the guest. Any stipulation between the hotel-keeper and the
guest whereby the responsibility of the former as set forth in articles 1998 to 2001 is suppressed
or diminished shall be void.
The hotel-keeper is not liable for compensation if the loss is due to the acts of the guest, his family,
servants or visitors, or if the loss arises from the character of the things brought into the hotel.
The hotel-keeper has a right to retain the things brought into the hotel by the guest, as a security
for credits on account of lodging, and supplies usually furnished to hotel guests.
That made with common carriers.
Chapter 4
Sequestration or Judicial Deposit
(Articles 2005- 2009)
Judicial Deposit
A judicial deposit or sequestration takes place when an attachment or seizure of property in litigation is
ordered. (Art. 2005)
Movable as well as immovable property may be the object of sequestration. (Art. 2006)
The depositary of property or objects sequestrated cannot be relieved of his responsibility until the
controversy which gave rise thereto has come to an end, unless the court so orders. (Art. 2007)
The depositary of property sequestrated is bound to comply, with respect to the same, with all the
obligations of a good father of a family. (Art. 2008)
As to matters not provided for in this Code, judicial sequestration shall be governed by the Rules of
Court. (Art. 2009)
Special Rule
1. Examples of an attachment or seizure of property by judicial order:
a. Under Rule 57, Revised Rules of Court: a proper party may, at the commencement of the action or
at any time thereafter, have the properties of the adverse party attached as security for the
satisfaction of any judgment that may be recovered.
b. Under Rule 60, a sheriff may be ordered to seize personal property in suits for the delivery of
personal property.
c. In PCGG sequestration cases pending before the Sandiganbayan.
Distinguished from extra-judicial deposit
JUDICIAL DEPOSIT
a.
b.
c.
d.
e.
As
As
As
As
As
to
to
to
to
to
source
purpose
object
cause
possession
By Court order
To secure the owners right
May be real or personal property
Remuneratory
For the benefit of the owner/
EXTRA-JUDICIAL DEPOSIT
(VOLOUNTARY)
By the will of the parties
For safe-keeping
Personal property only
Generally gratuitous
Generally for the benefit of
the
depositor.
The law does not define what a warehouse is. As used, however, in the Act, warehouse means the
building or place where the goods are deposited and stored for profit.
A warehouseman is a person lawfully engaged in the business of storing goods for profit.
Receipts not issued by a warehouseman are not warehouse receipts although in the form of
warehouse receipts.
But a duly authorized officer or agent of a warehouseman may validly issue a warehouse
receipt.
Receipts may be issued by any warehouseman.
Form
The Act does not require or specify any particular form for warehouse receipts, provided that it
contains the essential terms, as enumerated in section 2 of the Warehouse Receipts Act, which must be
embodied in every warehouse receipts:
1. Location of the Warehouse
This requirement is for the benefit of the holders of the warehouse receipt to enable them to
determine where the goods are deposited especially when the warehouseman has more than
one warehouse located in different places.
2. Date of the Receipt
The date of issue appearing in the warehouse receipt indicates prima facie the date when the
contract of deposit is perfected and when storage charges shall begin to run against the
depositor.
3. Consecutive number of Receipt
To identify each receipt with the goods for which it was issued.
4. Person to whom good are deliverable
This determines the person or persons who shall prima facie be entitled lawfully to the
possession of the goods deposited. This requirement, however, does not determine the
negotiability of the receipt because notwithstanding the failure to use the words of
negotiability, the receipt may still be considered negotiable.
5. Rate of Storage Charges
This states the consideration for the contract from the view of the warehouseman. In the
absence thereof, the law presumes that the depositor shall pay the customary or reasonable
compensation for the services of the warehouseman.
6. Description of the Goods or Packages
For the identification so that the identical property delivered to the warehouseman may be
delivered back by him upon the return of the warehouse receipt. However, the mere fact that
the goods deposited are incorrectly described does not make ineffective the receipt when the
identity of the goods is fully established by the evidence.
7. Signature of the Warehouseman
The warehousemans signature furnishes the best evidence of the fact that the warehouseman
has received the goods described in the receipt and has bound himself to assume all
obligations in connection therewith.
8. Warehousemans ownership of or interest in the goods
It seems wise that where they issue negotiable instrument in this way, the document should
carry notice of the fact on its face.
9. Statement of the advances made and liabilities incurred
To preserve the lien of the warehouseman over the goods stored or the proceeds thereof in his
hands.
Effect of Omission:
1. The validity of receipt not affected.
The omission of any of the requirements will not affect the validity of the warehouse receipt.
2. Warehouseman liable for damages.
It will only render the warehouseman liable for damages to those injured by his omission.
3. Negotiability of receipt not affected.
Section 2 doen not deal with the negotiuability of the warehouse receipt. Thus, omission of any
terms in section 2 that are required will not affect the negotiability of the warehouse receipt.
4. Contract converted to ordinary deposit.
The issuance of the warehouse receipt in the form provided by the law is merely permissive
and directory and not mandatory in the sense that if the requirements are not observed, then
the goods delivered for storage become ordianry deposits.
2.
Kinds
Non-negotiable receipt
A receipt in which it is stated that the goods received will be delivered to the depositor or to any other
specified person, is a non-negotiable receipt. (Section 4)
Negotiable receipt
A receipt in which it is stated that the goods received will be delivered to the bearer or to the order of
any person named in such receipt is a negotiable receipt. (Section 5)
NOTE:
The word negotiable is not used in the sense in which it is applied to bills of exchange or
promissory notes but only as indicating that in the passage of warehouse receipts through the
channels of commerce, the law regards the property which they describe as following them and gives
their regular transfer by indorsement the effect of manual delivery of the thing specified in them.
[Vannett vs. Reilly Hertz Automobile Co., 173 N.W.466]
a.
b.
An offer to surrender the receipt, if negotiable, with such indorsements as would be necessary for
the negotiation of the receipt; and
b.
c.
d.
The offer to surrender the receipt is required for the protection of the warehouseman since
the receipt represents the goods described therein. Furthermore, the warehouseman will be
criminally liable if he delivers the goods without obtaining possession of such receipt. The
warehousemans right to require production of the receipt as a condition precedent to delivery is
subject to waiver, as where he refuses to deliver on other grounds than its production.
A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they
have been delivered, if such signature is requested by the warehouseman.
To whom delivery must be made (Section 9)
The person lawfully entitled to the possession of the goods, or his agent;
A warehouseman is justified in delivering the good to the person to whom a competent
court has ordered the delivery of the goods; or to an attaching creditor; or to the purchaser in case
of sale of the goods by the warehouseman to enforce his lien or where the goods are perishable or
hazardous.
A person who is either himself entitled to delivery by the terms of a non-negotiable receipt issued
for the goods, or who has written authority from the person so entitled either indorsed upon the
receipt or written upon another paper; or
Oral authority is sufficient
A person in possession of a negotiable receipt by the terms of which the goods are deliverable to
him or order, or to bearer, or which has been indorsed to him or in blank by the person to whom
delivery was promised by the terms of the receipt or by his mediate or immediate indorser.
The warehouseman is liable for misdelivery to a mere possessor of a negotiable receipt by
the terms of which the goods covered by it are deliverable to the order of another, not being an
indorsee thereon.
Misdelivery (Section 10)
What it constitutes?
Where a warehouseman delivers the goods to one who is not in fact lawfully entitled to the
possession of them.
Liability for misdelivery:
For conversion to all having a right of property or possession in the goods if he delivered the
goods otherwise than as authorized by subdivisions (b) and (c) of the preceding section (refer to
Section 9)
Warehouseman shall also be liable though he delivered the goods as authorized by said
subdivisions but prior to such delivery he had either: (a) Been requested, by or on behalf of the
person lawfully entitled to a right of property or possession in the goods, not to make such deliver; or
(b)
Had information that the delivery about to be made was to one not lawfully entitled to the
possession of the goods.
Where goods are covered by a negotiable receipt
When the warehouseman must deliver; Attachment or levy upon the goods (Section 25)
If goods are delivered to a warehouseman by the owner or by a person whose act in conveying
the title to them to a purchaser in good faith for value would bind the owner, and a negotiable receipt
is issued for them, they can not thereafter, while in the possession of the warehouseman, be attached
by garnishment or otherwise, or be levied upon under an execution unless the receipt be first
surrendered to the warehouseman or its negotiation enjoined. The warehouseman shall in no case be
compelled to deliver up the actual possession of the goods until the receipt is surrendered to him or
impounded
by
the
court.
Cancellation of receipt (Section 11)
Except as provided in section thirty-six, where a warehouseman delivers goods for which he
had issued a negotiable receipt, the negotiation of which would transfer the right to the possession of
the goods, and fails to take up and cancel the receipt, he shall be liable to any one who purchases for
value in good faith such receipt, for failure to deliver the goods to him, whether such purchaser
acquired title to the receipt before or after the delivery of the goods by the warehouseman.
The negotiable receipt must be one the negotiation of which would transfer the right to the
possession of the goods. So, the warehouseman who delivers the goods to the real owner without
taking up and cancelling the receipt is not liable to the purchaser for value in good faith of such receipt
from a thief for failure to deliver the goods to him as the thief has not title to the goods.
e.
The alteration of a receipt shall not excuse the warehouseman who issued it from any liability if
such alteration was: (a) Immaterial, (b) Authorized, or (c) Made without fraudulent intent.
f.
g.
h.
i.
from any other liability to the person who made the alteration and to any person who took with
notice of the alteration. Any purchaser of the receipt for value without notice of the alteration
shall acquire the same rights against the warehouseman which such purchaser would have
acquired if the receipt had not been altered at the time of purchase.
In Section 50- the warehouseman is made liable if it issues a receipt knowing that the goods for
which such receipt is issued have not been actually received by such warehouseman.
Warehouse receipts are issued for the goods or merchandise stored with the warehouseman. It is
essential that the goods for which the receipt is issued shall be in the warehousemans possession.
The undertaking signed by Roberto Regala, Jr. although denominated "Guarantor's Undertaking," was in substance a contract
of surety. As distinguished from a contract of guaranty where the guarantor binds himself to the creditor to fulfill the obligation of the
principal debtor only in case the latter should fail to do so, in a contract of suretyship, the surety binds himself solidarily with the
principal debtor (Art. 2047, Civil Code of the Philippines).
We need not look elsewhere to determine the nature and extent of private respondent Roberto Regala, Jr.'s undertaking. As a
surety he bound himself jointly and severally with the debtor Celia Regala "to pay the Pacific Banking Corporation upon demand, any
and all indebtedness, obligations, charges or liabilities due and incurred by said Celia Syjuco Regala with the use of Pacificard or
renewals thereof issued in (her) favor by Pacific Banking Corporation." This undertaking was also provided as a condition in the issuance
of the Pacificard to Celia Regala.
It is true that under Article 2054 of the Civil Code, "(A) guarantor may bind himself for less, but not for more than the principal
debtor, both as regards the amount and the onerous nature of the conditions. It is likewise not disputed by the parties that the credit
limit granted to Celia Regala was P2,000.00 per month and that Celia Regala succeeded in using the card beyond the original period of
its effectivity, October 29, 1979. We do not agree however, that Roberto Jr.'s liability should be limited to that extent. Private respondent
Roberto Regala, Jr., as surety of his wife, expressly bound himself up to the extent of the debtor's (Celia) indebtedness likewise
expressly waiving any "discharge in case of any change or novation of the terms and conditions in connection with the issuance of the
Pacificard credit card." Roberto, in fact, made his commitment as a surety a continuing one, binding upon himself until all the liabilities
of Celia Regala have been fully paid.
Roberto Regala, Jr. had been made aware by the terms of the undertaking of future changes in the terms and conditions
governing the issuance of the credit card to his wife and that, notwithstanding, he voluntarily agreed to be bound as a surety. As in
guaranty, a surety may secure additional and future debts of the principal debtor the amount of which is not yet known.
B.
Of real security
Secured transactions or contracts of real security - supported by a collateral or an encumbrance of property
1. Pledge
A contract wherein the debtor delivers to the creditor or to a third person a movable or document evidencing
incorporeal rights for the purpose of securing fulfilment of a principal obligation with the understanding that
when the obligation is fulfilled, the thing delivered shall be returned with all its fruits and accessions.
2. Real Estate Mortgage
A contract whereby the debtor secures to the creditor the fulfillment of a principal obligation, specially
subjecting to such security immovable property or real rights over immovable property in case the principal
obligation is not complied with at the time stipulated.
3. Chattel Mortgage
A contract by virtue of which personal property is recorded in the Chattel Mortgage Register as a security for
the performance of an obligation.
4. Antichresis
A contract whereby the creditor acquires the right to receive the fruits of an immovable of the debtor, with the
obligation to apply them to the payment of the interest, if owing, and thereafter to the principal of his credit.
III.
Causa
The causa of guaranty is the same causa that supports the principal obligation.
TITLE XV GUARANTY
CHAPTER 1
Nature and Extent of Guaranty
Articles 2047-2048
I.
Concept
Characteristic features:
A. Subsidiary
-It takes effect only when the principal debtor fails in his obligation subject to limitation.
Case: Difference between guarantor and surety; effect where guarantor is sued first before the principal debtor
CASTELLVI vs. SELLNER
Facts:
The basis of plaintiff's action is a letter written by defendant Sellner to John T. Macleod, agent for Mrs. Horace L. Higgins, of the following
tenor:
DEAR SIR: I hereby obligate and bind myself, my heirs, successors and assigns that if the promissory note executed the
29th day of May, 1915 by the Keystone Mining Co., W.H. Clarke, and John Maye, jointly and severally, in your favor and due six
months after date for Pesos 10,000 is not fully paid at maturity with interest, I will, within fifteen days after notice of such
default, pay you in cash the sum of P10,000 and interest upon your surrendering to me the three thousand shares of stock of
the Keystone Mining Co. held by you as security for the payment of said note.
Respectfully,
(Sgd.) GEO. C. SELLNER.
Issue:
Whether or not the defendant Sellner is a surety or a guarantor.
SC Ruling:
Sellner is a guarantor.
The points of difference between a surety and a guarantor are familiar to American authorities. A surety and a guarantor are alike
in that each promises to answer for the debt or default of another. A surety and a guarantor are unlike in that the surety assumes
liability as a regular party to the undertaking, while the liability as a regular party to upon an independent agreement to pay the
obligation if the primary pay or fails to do so. A surety is charged as an original promissory; the engagement of the guarantor is a
collateral undertaking. The obligation of the surety is primary; the obligation of the guarantor is secondary.
Turning back again to our Civil Code, we first note that according to article 1822 "By fianza (security or suretyship) one person
binds himself to pay or perform for a third person in case the latter should fail to do so." But "If the surety binds himself in solidum with
the principal debtor, the provisions of Section fourth, Chapter third, Title first, shall be applicable." What the first portion of the cited
article provides is, consequently, seen to be somewhat akin to the contract of guaranty, while what is last provided is practically
equivalent to the contract of suretyship. When in subsequent articles found in section 1 of Chapter II of the title concerning fianza, the
Code speaks of the effects of suretyship between surety and creditor, it has, in comparison with the common law, the effect of guaranty
between guarantor and creditor. The civil law suretyship is, accordingly, nearly synonymous with the common law guaranty; and the
civil law relationship existing between codebtors liable in solidum is similar to the common law suretyship.
It is perfectly clear that the obligation assumed by defendant was simply that of a guarantor, or, to be more precise, of the fiador
whose responsibility is fixed in the Civil Code. The letter of Mr. Sellner recites that if the promissory note is not paid at maturity, then,
within fifteen days after notice of such default and upon surrender to him of the three thousand shares of Keystone Mining Company
stock, he will assume responsibility. Sellner is not bound with the principals by the same instrument executed at the same time and on
Under the terms of the contract, Esteban Piczon expressly bound himself only as guarantor, and there are no circumstances in
the record from which it can be deduced that his liability could be that of a surety. A guaranty must be express, (Article 2055, Civil Code)
and it would be violative of the law to consider a party to be bound as a surety when the very word used in the agreement is
"guarantor."
Moreover, as well pointed out in appellees' brief, under the terms of the pre-trial order, appellants accepted the express assumption of
liability by Sosing-Lobos & Co., Inc. for the payment of the obligation in question, thereby modifying their original posture that inasmuch
as that corporation did not exist yet at the time of the agreement, Piczon necessarily must have bound himself as insurer.
a. Solidary guarantor does not lose his character as such vis--vis the debtor
PALMARES vs. CA
Facts:
Pursuant to a promissory note, private respondent M.B. Lending Corporation extended a loan to the spouses Osmea and
Merlyn Azarraga, together with petitioner Estrella Palmares, in the amount of P30,000.00 payable on or before May 12, 1990, with
compounded interest at the rate of 6% per annum to be computed every 30 days from the date thereof. On four occasions after the
execution of the promissory note and even after the loan matured, petitioner and the Azarraga spouses were able to pay a total of
P16,300.00, thereby leaving a balance of P13,700.00. No payments were made after the last payment on September 26, 1991.
The basis of petitioner Palmares' liability under the promissory note is expressed in this wise:
ATTENTION TO CO-MAKERS: PLEASE READ WELL
I, Mrs. Estrella Palmares, as the Co-maker of the above-quoted loan, have fully understood the contents of this Promissory
Note for Short-Term Loan:
That as Co-maker, I am fully aware that I shall be jointly and severally or solidarily liable with the above principal maker of this
note;
That in fact, I hereby agree that M.B. LENDING CORPORATION may demand payment of the above loan from me in case the
principal maker, Mrs. Merlyn Azarraga defaults in the payment of the note subject to the same conditions above-contained.
On the basis of petitioner's solidary liability under the promissory note, respondent corporation filed a complaint against petitioner
Palmares as the lone party-defendant, to the exclusion of the principal debtors, allegedly by reason of the insolvency of the latter.
Issue:
Where a party signs a promissory note as a co-maker and binds herself to be jointly and severally liable with the principal debtor in case
the latter defaults in the payment of the loan, is such undertaking of the former deemed to be that of a surety as an insurer of the debt,
or of a guarantor who warrants the solvency of the debtor?
SC Ruling:
A surety is an insurer of the debt, whereas a guarantor is an insurer of the solvency of the debtor. A suretyship is an
undertaking that the debt shall be paid; a guaranty, an undertaking that the debtor shall pay. Stated differently, a surety promises to
pay the principal's debt if the principal will not pay, while a guarantor agrees that the creditor, after proceeding against the principal,
may proceed against the guarantor if the principal is unable to pay. A surety binds himself to perform if the principal does not, without
regard to his ability to do so. A guarantor, on the other hand, does not contract that the principal will pay, but simply that he is able to
do so. In other words, a surety undertakes directly for the payment and is so responsible at once if the principal debtor makes default,
while a guarantor contracts to pay if, by the use of due diligence, the debt cannot be made out of the principal debtor.
Quintessentially, the undertaking to pay upon default of the principal debtor does not automatically remove it from the ambit
of a contract of suretyship. The second and third paragraphs of the aforequoted portion of the promissory note do not contain any other
condition for the enforcement of respondent corporation's right against petitioner. It has not been shown, either in the contract or the
pleadings, that respondent corporation agreed to proceed against herein petitioner only if and when the defaulting principal has become
insolvent. A contract of suretyship, to repeat, is that wherein one lends his credit by joining in the principal debtor's obligation, so as to
render himself directly and primarily responsible with him, and without reference to the solvency of the principal.
The stipulation contained in the third paragraph of the controverted suretyship contract merely elucidated on and made more
specific the obligation of petitioner as generally defined in the second paragraph thereof. Resultantly, the theory advanced by petitioner,
that she is merely a guarantor because her liability attaches only upon default of the principal debtor, must necessarily fail for being
incongruent with the judicial pronouncements adverted to above.
It is a well-entrenched rule that in order to judge the intention of the contracting parties, their contemporaneous and
subsequent acts shall also be principally considered. Several attendant factors in that genre lend support to our finding that petitioner is
a surety. For one, when petitioner was informed about the failure of the principal debtor to pay the loan, she immediately offered to
settle the account with respondent corporation. Obviously, in her mind, she knew that she was directly and primarily liable upon default
of her principal. For another, and this is most revealing, petitioner presented the receipts of the payments already made, from the time
of initial payment up to the last, which were all issued in her name and of the Azarraga spouses. This can only be construed to mean
that the payments made by the principal debtors were considered by respondent corporation as creditable directly upon the account
and inuring to the benefit of petitioner. The concomitant and simultaneous compliance of petitioner's obligation with that of her
principals only goes to show that, from the very start, petitioner considered herself equally bound by the contract of the principal
makers.
A surety is bound equally and absolutely with the principal, and as such is deemed an original promisor and debtor from the
beginning. This is because in suretyship there is but one contract, and the surety is bound by the same agreement which binds the
principal. In essence, the contract of a surety starts with the agreement.
Solidary Debtor
Can recover only the co-debtors share
Not released by extension
No action except for contribution
Bound under a principal obligation
B. Consensual
C. Gratuitous or Onerous
a. Gratuitous - the guarantor does not receive any price or remuneration for acting as such (2048).
b. Onerous - the guarantor receives valuable consideration for his guaranty.
Case: Dismissal of complaint by virtue of compromise agreement where payment of balance was guaranteed
SEVERINO vs. SEVERINO
The plaintiff Fabiola Severino is the recognized natural daughter of Melecio Severino, deceased, former resident of Occidental
Negros. Upon the death of Melecio Severino a number of years ago, he left considerable property and litigation ensued between his
widow, Felicitas Villanueva, and Fabiola Severino, on the one part, and other heirs of the deceased on the other part. In order to make an
end of this litigation a compromise was effected by which Guillermo Severino, a son of Melecio Severino, took over the property
pertaining to the estate of his father at the same time agreeing to pay P100,000 to Felicitas Villanueva and Fabiola Severino. This sum of
money was made payable, first, P40,000 in cash upon the execution of the document of compromise, and the balance in three several
payments of P20,000 at the end of one year; two years, and three years respectively. To this contract the appellant Enrique Echaus
affixed his name as guarantor. The first payment of P40,000 was made on July 11, 1924, the date when the contract of compromise was
executed; and of this amount the plaintiff Fabiola Severino received the sum of P10,000. Of the remaining P60,000, all as yet unpaid,
Fabiola Severino is entitled to the sum of P20,000.
It appears that at the time of the compromise agreement above-mentioned was executed Fabiola Severino had not yet been
judicially recognized as the natural daughter of Melecio Severino, and it was stipulated that the last P20,000 corresponding to Fabiola
and the last P5,000 corresponding to Felicitas Villanueva should retained on deposit until the definite status of Fabiola Severino as
natural daughter of Melecio Severino should be established. The judicial decree to this effect was entered in the Court of First Instance of
Occidental Negros on June 16, 1925, and as the money which was contemplated to be held in suspense has never in fact been paid to
the parties entitled thereto, it results that the point respecting the deposit referred to has ceased to be of moment.
The proof shows that the money claimed in this action has never been paid and is still owing to the plaintiff; and the only
defense worth noting in this decision is the assertion on the part of Enrique Echaus that he received nothing for affixing his signature as
guarantor to the contract which is the subject of suit and that in effect the contract was lacking in consideration as to him.
The point is not well taken. A guarantor or surety is bound by the same consideration that makes the contract effective
between the principal parties thereto. The compromise and dismissal of a lawsuit is recognized in law as a valuable consideration; and
the dismissal of the action which Felicitas Villanueva and Fabiola Severino had instituted against Guillermo Severino was an adequate
consideration to support the promise on the part of Guillermo Severino to pay the sum of money stipulated in the contract which is the
subject of this action. The promise of the appellant Echaus as guarantor therefore binding. It is never necessary that the guarantor or
surety should receive any part of the benefit, if such there be, accruing to his principal. But the true consideration of this contract was
the detriment suffered by the plaintiffs in the former action in dismissing that proceeding, and it is immaterial that no benefit may have
accrued either to the principal or his guarantor.
Article 2049-2057
I.
KINDS
A. By its origin
CONVENTIONAL- constituted by contract
LEGAL- required by substantive or procedural law
JUDICIAL- required by a court from a litigant
B.
By its extent
INDEFINITE or UNLIMITED or SIMPLE- cover the principal obligation, accessories and cost incurred after the
guarantor has been judicially asked to pay.
If the guaranty is given without the knowledge or consent of the debtor, Articles 1236 and 1237 apply.
A guarantor can recover from the debtor what the former had to pay the creditor, even if the
guaranty was without the debtors consent or against his will, but the recovery will only be to the extent
that the debtor had been benefited.
C.
Guaranty proper
D.
Cases:
Romulo Machetti, vs. Hospicio De San Jose and Fidelity & Surety Company Of The Philippine Islands
Facts:
It appears from the evidence that Romulo Machetti, by a written agreement undertook to construct a building for the Hospicio
de San Jose, the contract price being P64,000. One of the conditions of the agreement was that the contractor should obtain the
"guarantee" of the Fidelity and Surety Company of the Philippine Islands to the amount of P128,800 and the following endorsement in
appears upon the contract:
For value received we hereby guarantee compliance with the terms and conditions as outlined in the above contract.
FIDELITY AND SURETY COMPANY OF THE PHILIPPINE ISLANDS.
(Sgd) OTTO VORSTER, Vice-President.
Machetti constructed the building under the supervision of architects representing the Hospicio de San Jose and, as the work
progressed, payments were made to him from time to time upon the recommendation of the architects, until the entire contract price,
with the exception of the sum of the P4,978.08, was paid. Subsequently it was found that the work had not been carried out in
accordance with the specifications which formed part of the contract and that the workmanship was not of the standard required, and
the Hospicio de San Jose therefore answered the complaint and presented a counterclaim for damages for the partial noncompliance
with the terms of the agreement abovementioned, in the total sum of P71,350. After issue was thus joined, Machetti, on petition of his
creditors, was declared insolvent and an order was entered suspending the proceeding in the present case in accordance with section 60
of the Insolvency Law, Act No. 1956.
The Hospicio de San Jose filed a motion asking that the Fidelity and Surety Company be made cross-defendant to the
exclusion of Machetti and that the proceedings be continued as to said company, but still remain suspended as to Machetti. This motion
was granted and the Hospicio filed a complaint against the Fidelity and Surety Company asking for a judgement for P12,800 against the
company upon its guaranty. The CFI rendered judgment against the Fidelity and Surety Company for P12,800 in accordance with the
complaint. As will be seen, the original action which Machetti was the plaintiff and the Hospicio de San Jose defendant, has been
converted into an action in which the Hospicio de San Jose is plaintiff and the Fidelity and Surety Company, the original plaintiff's
guarantor, is the defendant, Machetti having been practically eliminated from the case.
Issue:
Whether or not Fidelity and Surety Companys liability is that of a surety or guarantor?
SC Ruling:
In English the term "guarantor" implies an undertaking of guaranty, as distinguished from suretyship. It is very true that
notwithstanding the use of the words "guarantee" or "guaranty" circumstances may be shown which convert the contract into one of
suretyship but such circumstances do not exist in the present case; on the contrary it appears affirmatively that the contract is the
guarantor's separate undertaking in which the principal does not join, that it rests on a separate consideration moving from the principal
and that although it is written in continuation of the contract for the construction of the building, it is a collateral undertaking separate
and distinct from the latter. All of these circumstances are distinguishing features of contracts of guaranty.
Now, while a surety undertakes to pay if the principal does not pay, the guarantor only binds himself to pay if the principal
cannot pay. The one is the insurer of the debt, the other an insurer of the solvency of the debtor. This latter liability is what the Fidelity
and Surety Company assumed in the present case. The undertaking is perhaps not exactly that of a fianza under the Civil Code, but is a
perfectly valid contract and must be given the legal effect if ordinarily carries. The Fidelity and Surety Company having bound itself to
pay only the event its principal, Machetti, cannot pay it follows that it cannot be compelled to pay until it is shown that Machetti is
unable to pay. Such ability may be proven by the return of a writ of execution unsatisfied or by other means, but is not sufficiently
established by the mere fact that he has been declared insolvent in insolvency proceedings under our statutes, in which the extent of
the insolvent's inability to pay is not determined until the final liquidation of his estate. The judgment appealed from is therefore
reversed without costs and without prejudice to such right of action as the cross-complainant, the Hospicio de San Jose, may have after
exhausting its remedy against the plaintiff Machetti.
OoO
PNB VS. LUZON SURETY Co., INC.
Facts:
Defendant Augusto R. Villarosa, a sugar planter adhered to the Lopez Sugar Central Milling company, Inc. applied for a crop
loan with the plaintiff, Philippine National Bank, which application was approved on March 6, 1952 in the amount of P32,400. Villarosa
executed a Chattel Mortgage on standing crop to guaranty the crop loan.
As of September 27, 1953 as shown in the accounts, there was a balance of P63,222.78 but as of the date when the
complaint was filed on June 8, 1960, because of the interest accrued, it has reached a much higher sum. Due to its non-payment,
Baliwag Mahogany Corporation (BMC) is a domestic corporation engaged in the manufacture and export of finished wood
products. Petitioners-spouses Alfredo and Susana Ong are its President and Treasurer, respectively.
On April 20, 1992, respondent Philippine Commercial International Bank (now Equitable-Philippine Commercial International
Bank or E-PCIB) filed a case for collection of a sum of money against petitioners-spouses. The complaint alleged that in 1991, BMC
needed additional capital for its business and applied for various loans, amounting to a total of five million pesos, with the respondent
bank. Petitioners-spouses acted as sureties for these loans and issued three (3) promissory notes for the purpose. Under the terms of
the notes, it was stipulated that respondent bank may consider debtor BMC in default and demand payment of the remaining balance of
the loan upon the levy, attachment or garnishment of any of its properties, or upon BMCs insolvency, or if it is declared to be in a state
of suspension of payments. Respondent bank granted BMCs loan applications.
On November 22, 1991, BMC filed a petition for rehabilitation and suspension of payments with the Securities and Exchange
Commission (SEC) after its properties were attached by creditors. Respondent bank considered debtor BMC in default of its obligations
and sought to collect payment thereof from petitioners-spouses as sureties. On October 13, 1992, a Memorandum of Agreement (MOA)
was executed by debtor BMC, the petitioners-spouses as President and Treasurer of BMC, and the consortium of creditor banks of BMC
(of which respondent bank is included). The MOA took effect upon its approval by the SEC on November 27, 1992.
Thereafter, petitioners-spouses moved to dismiss the complaint. They argued that as the SEC declared the principal debtor
BMC in a state of suspension of payments and, under the MOA, the creditor banks, including respondent bank, agreed to temporarily
suspend any pending civil action against the debtor BMC, the benefits of the MOA should be extended to petitioners-spouses who acted
as BMCs sureties in their contracts of loan with respondent bank. Petitioners-spouses averred that respondent bank is barred from
pursuing its collection case filed against them.
Spouses Ongs Contention:
Petitioners contend that it would prejudice them if the principal debtor BMC would enjoy the suspension of payment of its
debts while petitioners, who acted only as sureties for some of BMCs debts, would be compelled to make the payment. They add that
compelling them to pay is contrary to Article 2063 of the Civil Code which provides that a compromise between the creditor and
principal debtor benefits the guarantor and should not prejudice the latter. Lastly, petitioners rely on Article 2081 of the Civil Code
which provides that: "the guarantor may set up against the creditor all the defenses which pertain to the principal debtor and are
inherent in the debt; but not those which are purely personal to the debtor." Petitioners aver that if the principal debtor BMC can set up
the defense of suspension of payment of debts and filing of collection suits against respondent bank, petitioners as sureties should
likewise be allowed to avail of these defenses.
SC Ruling:
We find no merit in petitioners contentions.
Reliance of petitioners-spouses on Articles 2063 and 2081 of the Civil Code is misplaced as these provisions
refer to contracts of guaranty. They do not apply to suretyship contracts. Petitioners-spouses are not guarantors but sureties of
BMCs debts. There is a sea of difference in the rights and liabilities of a guarantor and a surety. A guarantor insures the solvency of
the debtor while a surety is an insurer of the debt itself. A contract of guaranty gives rise to a subsidiary obligation on the
part of the guarantor. It is only after the creditor has proceeded against the properties of the principal debtor and the debt remains
unsatisfied that a guarantor can be held liable to answer for any unpaid amount. This is the principle of excussion. In a suretyship
contract, however, the benefit of excussion is not available to the surety as he is principally liable for the payment of the
debt. As the surety insures the debt itself, he obligates himself to pay the debt if the principal debtor will not pay, regardless of whether
or not the latter is financially capable to fulfill his obligation. Thus, a creditor can go directly against the surety although the principal
debtor is solvent and is able to pay or no prior demand is made on the principal debtor. A surety is directly, equally and absolutely
bound with the principal debtor for the payment of the debt and is deemed as an original promissor and debtor from the
beginning.
Under the suretyship contract entered into by petitioners-spouses with respondent bank, the former obligated themselves to
be solidarily bound with the principal debtor BMC for the payment of its debts to respondent bank amounting to five million pesos
(P5,000,000.00). Under Article 1216 of the Civil Code, respondent bank as creditor may proceed against petitioners-spouses as
sureties despite the execution of the MOA which provided for the suspension of payment and filing of collection suits against BMC.
Respondent banks right to collect payment from the surety exists independently of its right to proceed directly against the principal
debtor. In fact, the creditor bank may go against the surety alone without prior demand for payment on the principal debtor.
OoO
INTERNATIONAL FINANCE CORPORATION VS. IMPERIAL TEXTILE MILLS, INC.
Facts:
On December 17, 1974, International Finance Corporation (IFC) and Philippine Polyamide Industrial Corporation (PPIC) entered
into a loan agreement wherein IFC extended to PPIC a loan of US$7,000,000.00, payable in 16 semi-annual installments of
US$437,500.00 with interest at the rate of 10%.
On December 17, 1974, a Guarantee Agreement was executed where Imperial Textile Mills, Inc. (ITM), Grand Textile
Manufacturing Corporation (Grandtex) agreed to guarantee PPICs obligations.
PPIC paid the installments due on June 1, 1977, December 1, 1977 and June 1, 1978. The payments due on December 1, 1978, June 1,
1979 and December 1, 1979 were rescheduled as requested by PPIC. Despite the rescheduling of the installment payments, however,
PPIC defaulted.
With PPICs failure to pay, IFC, together with DBP, applied for the extrajudicial foreclosure of mortgages on the real properties
owned by PPIC at Calamba, Laguna. On July 30, 1985, the deputy sheriff of Calamba, Laguna issued a notice of extrajudicial sale. IFC
and DBP were the only bidders during the auction sale. IFCs bid was for P99,269,100.00 which was equivalent to US$5,250,000.00. The
outstanding loan, however, amounted to US$8,083,967.00 thus leaving a balance of US$2,833,967.00. PPIC failed to pay the remaining
II.
Elements of Guaranty
A. Parties
a. Qualifications of Guarantor: (legal capacity is required)
If proposed by the debtor, the guarantor must possess the following qualifications:
i.
He must be capable of contracting obligations
*includes married woman
ii.
He must have sufficient property to answer for the debt guaranteed.
*the insolvency of the guarantor entitles the creditor to demand another guarantor, unless
the insolvent guarantor was chosen by the creditor
iii.
He must possess integrity (honesty):
Conviction of the guarantor of a crime involving dishonesty has the same effect as
insolvency
*Integrity is a matter of opinion and is required only at the time of the perfection of the
contract. Its subsequent disappearance makes it optional in the creditor to demand another
guarantor
If chosen by the creditor, the latter may waive all the requirements other than the legal capacity to
contract.
No acceptance. Though requested by creditor of the execution of the bond, from the foregoing Additional security clause it is
apparent that before a bond is accepted by the petitioner, it has to be in such form and amount and with such sureties as shall be
satisfactory hereto. Hence, must be approved by creditor Texas. A request for bond is not inference of approval thereto.
Where there is merely an offer of, or proposition for, a guaranty, or merely a conditional guaranty in the sense that it requires
action by the creditor before the obligation becomes fixed, it does not become a binding obligation until it is accepted and, unless there
is a waiver of notice of such acceptance is given to, or acquired by, the guarantor, or until he has notice or knowledge that the creditor
has performed the conditions and intends to act upon the guaranty. The acceptance need not necessarily be express or in writing, but
may be indicated by acts amounting to acceptance. Where, upon the other hand, the transaction is not merely an offer of guaranty but
amounts to direct or unconditional promise of guaranty, unless notice of acceptance is made a condition of the guaranty, all that is
necessary to make the promise binding is that the promise should act upon it, and notice of acceptance is not necessary, the reason
being that the contract of guaranty is unilateral. Appealed decision affirmed.
Phil. Pryce Assurance Corp. (Pryce for brevity) was sued by Gegroco, Inc. for the two surety bonds Pryce executed in behalf of
B.
Future Debts of unknown amount may be guaranteed; but there can be no action against the guarantor until
the debt is liquidated.
It is a settled rule of law that foreclosure is proper when the debtors are in default of the payment of their obligation. In fact,
the parties stipulated in their credit agreements, mortgage contracts and promissory notes that respondent was authorized to foreclose
on the mortgages, in case of a default by petitioners.
Mora solvendi, or debtors default, is defined as a delay in the fulfillment of an obligation, by reason of a cause imputable to
the debtor. There are three requisites necessary for a finding of default. First, the obligation is demandable and liquidated; second, the
debtor delays performance; third, the creditor judicially or extrajudicially requires the debtors performance.
The Promissory Note expressly states that petitioners had an obligation to pay monthly interest on the principal obligation.
From respondents demand letter, it is clear and undisputed by petitioners that they failed to meet those monthly payments since May
30, 1998. Their nonpayment is defined as an "event of default" in the parties Credit Agreement. Considering that the contract is the law
between the parties, respondent is justified in invoking the acceleration clause declaring the entire obligation immediately due and
payable. That clause obliged petitioners to pay the entire loan on January 29, 1999, the date fixed by respondent. UCPB had every right
to apply for extrajudicial foreclosure on the basis of petitioners undisputed and continuing default.
Petitioners Debt Considered Liquidated Despite the Alleged Lack of Accounting
Petitioners do not even attempt to deny the aforementioned matters. They assert, though, that they have a right to a detailed
accounting before they can be declared in default. As regards the three requisites of default, they say that the first requisite -- liquidated
debt -- is absent. Continuing with foreclosure on the basis of an unliquidated obligation allegedly violates their right to due process. They
also maintain that their partial payment of P10 million averted the maturity of their obligation.
A debt is liquidated when the amount is known or is determinable by inspection of the terms and conditions of the relevant
promissory notes and related documentation. Failure to furnish a debtor a detailed statement of account does not ipso facto result in an
unliquidated obligation.
Petitioners executed a Promissory Note, in which they stated that their principal obligation was in the amount of P103,909,710.82,
subject to an interest rate of 21.75 percent per annum. Pursuant to the parties Credit Agreement, petitioners likewise know that any
delay in the payment of the principal obligation will subject them to a penalty charge of one percent per month, computed from the due
date until the obligation is paid in full.
Sometime in 1978, Inter-Resin Industrial Corporation (IRIC)opened a letter of credit with the Manila Banking Corporation. To
secure payment of the credit accommodation, Inter-Resin Industrial and the Investment and Underwriting Corporation of the Philippines
(IUCP) executed two "Continuing Surety Agreement" whereby they bound themselves solidarily to pay Manilabank "obligations of every
kind. In 1979, IRIC and Willex executed a "Continuing Guaranty" in favor of IUCP.
Subsequently, IUCP paid to Manilabank the sum owed by Inter-Resin Industrial. Atrium Capital Corp., which succeeded IUCP
and, later on succeeded by respondent, demanded from Inter-Resin Industrial and Willex Plastic the payment of what it had paid to
Manilabank.
Inter-Resin Industrial admitted that the "Continuing Guaranty" was intended to secure the payment which the IUCP had paid to
Manilabank. It claimed, however, that it had already fully paid its obligation to Atrium Capital.
In denying liability to Interbank for the amount, Willex argues that under the "Continuing Guaranty," its liability is for sums
obtained by Inter-Resin Industrial from Interbank, not for sums paid by the latter to Manilabank for the account of Inter-Resin Industrial.
The case then proceeded to trial. The trial court declared Inter-Resin Industrial to have waived the right to present evidence
for its failure to appear at the hearing despite due notice. On the other hand, Willex Plastic rested its case without presenting any
evidence. The trial court rendered judgment, ordering Inter-Resin Industrial and Willex Plastic jointly and severally to Interbank.
On appeal, the Court of Appeals rendered a decision affirming the ruling of the trial court. Willex filed a motion for
reconsideration praying that it be allowed to present evidence to show that Inter-Resin Industrial had already paid its obligation to
Interbank, but its motion was denied.
Issue:
Whether or not under the "Continuing Guaranty" signed by Willex, it may be held jointly and severally liable with Inter-Resin Industrial
for the amount by Interbank to Manilabank.
SC Ruling:
The contention is untenable. What Willex has overlooked is the fact that evidence aliunde was introduced in the trial court to
explain that it was actually to secure payment to Interbank (formerly IUCP) of amounts paid by the latter to Manilabank that the
"Continuing Guaranty" was executed.
Interbank adduced evidence to show that the "Continuing Guaranty" had been made to guarantee payment of amounts made
by it to Manilabank and not of any sums given by it as loan to Inter-Resin Industrial. Accordingly, the trial court found that it was "to
secure the guarantee made by plaintiff of the credit accommodation granted to defendant IRIC by Manilabank, that the plaintiff required
defendant IRIC to execute a chattel mortgage in its favor and a Continuing Guaranty which was signed by the defendant Willex.
Similarly, the Court of Appeals found it to be an undisputed fact that "to secure the guarantee undertaken by Interbank it
required Willex to sign a Continuing Guaranty." Nor does the record show any other transaction under which Inter-Resin Industrial may
have obtained sums of money from Interbank. It can reasonably be assumed that Inter-Resin Industrial and Willex intended to indemnify
Interbank for amounts which it may have paid Manilabank on behalf of Inter-Resin Industrial.
Willex Plastic argues that the "Continuing Guaranty," being an accessory contract, cannot legally exist because of the absence
of a valid principal obligation. Its contention is based on the fact that it is not a party either to the "Continuing Surety Agreement" or to
the loan agreement between Manilabank and Interbank Industrial.
Put in another way the consideration necessary to support a surety obligation need not pass directly to the surety, a
consideration moving to the principal alone being sufficient. For a "guarantor or surety is bound by the same consideration that makes
the contract effective between the principal parties thereto. . . . It is never necessary that a guarantor or surety should receive any part
or benefit, if such there be, accruing to his principal."
Willex Plastic contends that the "Continuing Guaranty" cannot be retroactively applied so as to secure the payments made by
Interbank under the two "Continuing Surety Agreements." Willex Plastic conteds that a contract of suretyship or guaranty should be
applied prospectively.
C.
Form
a. Guaranty is governed by the Statute of Frauds
Appellant Kangleons very letter constitutes his undertaking of guaranty. Contracts shall be obligatory in whatever form they
may have been entered into, provided all the essential elements for their validity is present. A contract of guaranty is not a formal
contract and shall be valid in whatever form it may be, provided that it complies with the Statute of Frauds.
Kangleon states that assuming that the letter constitutes a contract of guaranty, the films actually sold to the principal
debtors were 127 rolls of F.G, release positive type825B, 35mm. x 1,000 ft at P 55 a roll, payable May 9, 1954, while what he undertook
to guarantee payment was 10 rolls negative at 157 each and 100 rolls positive at 55 each, payable within three months ending April
1954. Citing Art. 2055 of the Civil Code that a guarantee cannot extend to more than what is stipulated therein, the appellant contends
that he cannot be held liable for the contract in view of the variation in his undertaking. The total cost of what was actually sold to and
bought by the principal debtors is P6,985, which is less that the total cost of what was originally intended to be bought by them
amounting to P7,070. The variation was merely in kind and not in subject matter-cinematographic films which did not render the
appellants obligation more burdensome. Instead his obligation was rendered less onerous by the reduction in the original price of P7,070
to P6, 985.
Wise & Co., Inc. vs. Tanglao 63 PHIL. 372 August 29, 1936
Facts:
Plaintiff WCI obtained a preliminary attachment of Cornelio Davids property. To avoid execution of said attachment, Cornelio
David obtained a special power of attorney from his lawyer Dionisio Tanglao, authorizing him to sign for his lawyer as guarantor for
himself in his indebtedness to plaintiff and to mortgage his lawyers lot to guarantee said obligation to plaintiff. Cornelio David
confessed judgement for P640 payable monthly and secured by a pledge to plaintiff of a house, apartment and a parcel of land recorded
in the name of Dionisio Tanglao. David made only partial payment of said judgment debt. Plaintiff brought an action to recover the
balance.
SC Ruling:
Under the power of attorney, tanglao empowered David to enter into a contract of suretyship and a contract of mortgage of
the property described in the document. David, however, used said power of attorney only to mortgage the property and did not enter
into a contract of suretyship.
Nothing is stated in the compromise agreement to the effect that Tanglao became Davids surety for the payment of the
judgment debt. Neither is this inferable from any of the clauses thereof, even if this inference might be made , it would be insufficient to
create an obligation of suretyship which under the law must be expressed and cannot be presumed.
c.
Case: The terms of the contract of suretyship determine the suretys liability and cannot extend to more than what is
stipulated therein.
Solon vs. Solon 64 Phil. 729 September 9, 1937
SC Ruling:
When Eugenio Solon bound himself as surety to Andres Montalban for the payment of Macleod and Company of the amount of
P5,oo which Montalban owed to the latter, he limited himself to giving as security, by way of mortgage, the land and no other, belonging
to him and described as lot No. 892 of the Banilad Friar Lands Estate in case No. 5988 of the Court of Land Registration and in the
transfer Certificate of Title No. 2499 of the registry of property of the Province of Cebu. It is not possible that Macleod Company could
have ever contemplated bringing an action against Eugenio Solon to obtain possession not only of the land expressly mortgage to it,
which has been said, is lot No. 892 described in the Certificate of title above-mentioned, which is distinct from lot No. 903, but also of
any other land belonging to him or of lot No. 903 itself, for the purpose of collecting its credit against Andres Montalban, because it
would not have failed to know, better than anyone else that the contract of suretyship in its favor does not admit of the interpretation
that it could make Eugenio Solon liable for the amount greater than P5,000 and that it could require him to pay Montalbans
indebtedness, should the latter fail to do, with land other than that he had mortgage.
This is so because the clauses of a contract of suretyship determine the extent of the liability of the surety because said
liability should not be extended farther than the clear terms of the contract of guarantee by mere implications; and because the surety
is liable only in the manner and to the extent, and under the circumstances pointed out in the contract of surety or which may be clearly
deduced therefrom.
CHAPTER 2
EFFECTS OF GUARANTY
Section 1 Effects of Guaranty between the Guarantor and the Creditor
Articles 2058 2065
I.
To pay or perform the obligation (in money or in species) if the debtor fails to do so.
a.
What is to be paid
The guarantor can bind himself for less but not bind himself to more, than the debtor. If he does it shall be
reduced to the limits of the debtors obligation (Art. 2054)
The guarantor binds himself to more than the debtor in the following cases:
The question to be taken up is the liability of Luzon Surety Co. for interest which it contends would increase its liability to more
than 10, 000 which is the maximum of its bond. We cannot agree to this reasoning, it was held that, if a surety upon demand fails to
pay, he can be held liable for the interest, even if in thus paying, the liability becomes more than that in the principal obligation. The
increased liability is not because of the contract but because of the default and the necessity of judicial collection. It should be noted,
however, that the interest runs from the time the debt becomes due and demandable.
oOo
COMMONWEALTH INSURANCE CORPORATION vs. CA
Facts:
In 1984, plaintiff-appellant Rizal Commercial Banking Corporation (RCBC) granted two export loan lines, one, for
P2,500,000.00 to Jigs Manufacturing Corporation (JIGS) and, the other, for P1,000,000.00 to Elba Industries, Inc. (ELBA). JIGS and ELBA
which are sister corporations both drew from their respective credit lines, the former in the amount of P2,499,992.00 and the latter for
P998,033.37 plus P478,985.05 from the case-to-case basis and trust receipts. These loans were evidenced by promissory notes (Exhibits
A to L, inclusive JIGS; Exhibits V to BB, inclusive ELBA) and secured by surety bonds (Exhibits M to Q inclusive JIGS; Exhibits
CC to FF, inclusive ELBA) executed by defendant-appellee Commonwealth Insurance Company (CIC).
JIGS and ELBA defaulted in the payment of their respective loans. On October 30, 1984, appellant RCBC made a written
demand (Exhibit N) on appellee CIC to pay JIGs account to the full extend (sic) of the suretyship. A similar demand (Exhibit O) was
made on December 17, 1984 for appellee CIC to pay ELBAs account to the full extend (sic) of the suretyship. In response to those
demands, appellee CIC made several payments from February 25, 1985 to February 10, 1988 in the total amount of P2,000,000.00.
There having been a substantial balance unpaid, appellant RCBC made a final demand for payment (Exhibit P) on July 7, 1988 upon
appellee CIC but the latter ignored it. Thus, appellant RCBC filed the Complaint for a Sum of Money on September 19, 1988 against
appellee CIC.
Issue:
Whether or not petitioner should be held liable to pay legal interest over and above its principal obligation under the surety bonds
issued by it.
SC Ruling:
Petitioner argues that it should not be made to pay interest because its issuance of the surety bonds was made on the
condition that its liability shall in no case exceed the amount of the said bonds.
We are not persuaded. Petitioners argument is misplaced.
Jurisprudence is clear on this matter. As early as Tagawa vs. Aldanese and Union Gurantee Co. and reiterated in Plaridel Surety &
Insurance Co., Inc. vs. P.L. Galang Machinero., Inc. and more recently, in Republic vs. Court of Appeals and R & B Surety and Insurance
Company, Inc., we have sustained the principle that if a surety upon demand fails to pay, he can be held liable for interest, even if in
thus paying, its liability becomes more than the principal obligation. The increased liability is not because of the contract but because of
the default and the necessity of judicial collection]
Petitioners liability under the suretyship contract is different from its liability under the law. There is no question that as a surety,
petitioner should not be made to pay more than its assumed obligation under the surety bonds. However, it is clear from the above-cited
jurisprudence that petitioners liability for the payment of interest is not by reason of the suretyship agreement itself but because of the
delay in the payment of its obligation under the said agreement.
The issue of petitioners payment of interest is a matter that is totally different from its obligation to pay the principal amount
covered by the surety bonds it issued. Petitioner offered no valid excuse for not paying the balance of its principal obligation when
demanded by RCBC. Its failure to pay is, therefore, unreasonable. Thus, we find no error in the appellate courts ruling that petitioner is
liable to pay interest.
b.
When
If the guarantor pays before the date, he cannot proceed against the debtor until that date arrives unless
the debtor ratified the payment.
c.
C.
If the debtor pays, not knowing that the guarantor paid already, the guarantor must recover from
the creditor.
If the guaranty is gratuitous and notice to the debtor is prevented by fortuitous event, the debtor
must reimburse the guarantor, if the creditor is insolvent.
Privileges of the Guarantor
a. Benefit of exhaustion- to demand that all the properties of the debtor be exhausted.
Machetti by a written agreement undertook to construct a building for Hospicio de San Jose. One of the conditions of the
agreement was that the contractor should obtain the guarantee of Fidelity and Surety Co. to the amount of P12, 000. The following
endorsement in the English language appears on the contract; for value received, we hereby guarantee compliance with the terms and
conditions as outlined in the above contract. Machetti constructed the building until a little over P 4, 000 remain unpaid of the entire
contract price.
It was subsequently found that the work had not been carried in accordance with the specifications. Hospicio de San Jose
refused to pay the balance of the contract price. Machetti brought an action to recover said amount. Hospicio de San Jose presented a
counterclaim for damages resulting from the partial non-compliance. On petition of his creditors, Machetti was declared insolvent. Upon
motion of Hospicio de San Jose, Fidelity & Surety Co. was made cross-defendant and proceedings continued as to it, to the exclusion of
Machetti.
Case: Effect of writ of execution against surety who was not impleaded
Towers Assurance Corporation vs. Ororama Supermart 80 SCRA 262 November 9, 1977
Facts:
On February 17, 1976 See Hong, the proprietor of Ororama Supermart in Cagayan de Oro City, sued the spouses Ernosto Ong
and Conching Ong in the CFI of Misamis Oriental for the collection of P 58,400 plus litigation expenses and attorneys fees.
See Hong ask for a writ of preliminary attachment. On March 5, 1976, the lower court issued an order of attachment. The
deputy sheriff attached the properties of the Ong spouses and Towers Assurance Corporation as surety. In that undertaking, the Ong
spouses and Towers assurance Corporation bound themselves to pay solidarily to See Hong the sum of P 58, 400.
SC Ruling:
We hold that the lower court acted with grave abuse of discretion in issuing a writ of execution against the surety without first
giving it an opportunity to be heard as required in Rule 57 of the Rules of Court which provides:
Sec.17. when execution returned unsatisfied, recovery had upon bond.- if the execution be returned unsatisfied in whole or in
part, the surety or sureties on any counterbond given pursuant to the provisions of this rule to secure the payment of the judgment shall
become charged on such counterbond and bond to pay the judgment, which amount may be recovered from such surety or sureties
after notice and summary hearing in the same action.
Under Sec. 17, in order that the judgment creditor might recover from the surety on the counterbond, it is necessary (1) that
the execution be first issued against the principal debtor and that such execution was returned unsatisfied in whole or in part; (2) that
the creditor made demand upon the surety for the satisfaction of the judgment and (3) that the surety be given notice and a summary
hearing in the same action as to his liability for the judgment under his counterbond.
The first requisite mentioned above is not applicable to this case because Towers Assurance Corporation assumed a solidary
liability for the fulfillment of the judgment. A surety is not entitled to the exhaustion of the properties of the principal debtor.
But certainly the surety is entitled to be heard before an execution can be issued against him since he is not a party in the
case involving his principal. Notice and hearing constitute the essence of procedural due process.
Wherefore, the order and the writ of execution insofar as they concern Towers Assurance Corporation, are set aside. The lower
court is directed to conduct a summary hearing on the suretys liability on its counterbond.
Abdulgani Salik, et.al private respondents allegedly applied with Pan Pacific Overseas Recruiting Services, Inc. on April 22,
1987 and were assured employment abroad by a certain Mrs. Normita Egil. In consideration thereof, they allegedly paid fees totaling
P30,000.00. but despite numerous assurances of employment abroad given by Celia Arandia and Mrs. Egil, they were not employed.
Accordingly they filed a joint complaint with the Philippine Overseas Employment Administration against Pan Pacific for
violation of Articles 32 and 34 of the Labor Code, as amended with claim or refund of a total amount of P30,000.00.
The POEA motu proprio impleaded and summoned herein petitioner surety Finman General Assurance Corp. in the latters
capacity as Pan Pacifics bonding company.
On October 9, 1987, a hearing was called, but only the private respondents appeared. Despite being deemed in default or
failing to answer, both Finman and Pan Pacific were still notified of the scheduled hearing. Again they failed to appear. Thus ex-parte
proceeding ensued.
SC Ruling:
The nature of Finmans obligation under the Suretyship agreement makes it privy to the proceeding against the principal. As
such Finman is bound, in the absence of collusion, by a judgment against the principal even though it was not a party to the
proceedings. In some cases the court ruled that were the surety bound itself solidarily with the principal obligor, the former is so
dependent on the principal debtor that the surety is considered in law as being the same party as the debtor in relation to whatever is
adjudged touching the obligation of the latter. Applying the foregoing principles to the case at bar, it can be very well said that even if
herein Finman was not impleaded in the instant case, still it can be held jointly and severally liable for all claims arising from the
recruitment violation of Pan Pacific. Moreover as correctly stated by the Solicitor General, private respondents have a legal claim against
Pan Pacific and its insurer for the placement and processing fees they paid, so much so that in order to provide a complete relief to
private respondents, petitioner have to be impleaded in the case.
1.
Interpose it as soon as the creditor makes a demand upon the guarantor for payment.
But the creditor may sue the debtor and the guarantor jointly when there is no guarantor
right to exhaustion. Otherwise the creditor shall ask the court to notify the guarantor.
The interposition of the benefit of exhaustion must be made before the judgment is
rendered against the guarantor.
The benefit of exhaustion cannot be claimed for the first time on appeal.
Point out to the creditor available property of the debtor within the Philippines sufficient to
cover the debt.
PhilGuarantee maintains that the date of default, not the actual date of payment, determines the liability of the guarantor and
that having paid TRB when the loan became due, it should be indemnified by petitioners. [30] It argues that, contrary to petitioners claim,
there could be no waiver of its right to excussion more explicit than its act of payment to TRB very directly. [31] Besides, the right to
excussion is for the benefit of the guarantor and is not a defense for the debtor to raise and use to evade liability. [32] Finally,
PhilGuarantee maintains that there is no sufficient evidence proving the alleged forgery of Cruzs signature on the Undertaking, which is
a notarized document and as such must be accorded the presumption of regularity. [33]
The Court finds for PhilGuarantee.
Under a contract of guarantee, the guarantor binds himself to the creditor to fulfill the obligation of the principal debtor in case
the latter should fail to do so. [34] The guarantor who pays for a debtor, in turn, must be indemnified by the latter. [35] However, the
guarantor cannot be compelled to pay the creditor unless the latter has exhausted all the property of the debtor and resorted to all the
legal remedies against the debtor.[36] This is what is otherwise known as the benefit of excussion.
It is clear that excussion may only be invoked after legal remedies against the principal debtor have been expanded. Thus, it was
held that the creditor must first obtain a judgment against the principal debtor before assuming to run after the alleged guarantor, for
obviously the exhaustion of the principals property cannot even begin to take place before judgment has been obtained. [37] The law
imposes conditions precedent for the invocation of the defense. Thus, in order that the guarantor may make use of the benefit of
excussion, he must set it up against the creditor upon the latters demand for payment and point out to the creditor available property
of the debtor within the Philippines sufficient to cover the amount of the debt. [38]
While a guarantor enjoys the benefit of excussion, nothing prevents him from paying the obligation once demand is made on him.
Excussion, after all, is a right granted to him by law and as such he may opt to make use of it or waive it. PhilGuarantees waiver of the
right of excussion cannot prevent it from demanding reimbursement from petitioners. The law clearly requires the debtor to indemnify
the guarantor what the latter has paid. [39]
Petitioners claim that PhilGuarantee had no more obligation to pay TRB because of the alleged expiration of the contract of
guarantee is untenable. The guarantee, dated17 December 1979, states:
In the event of default by JNDC and as a consequence thereof, PHILGUARANTEE is made to pay its obligation arising under the aforesaid
guarantee PHILGUARANTEE shall pay the BANK the amount of P1.4 million or 70% of the total obligation unpaid
....
This guarantee shall be valid for a period of one (1) year from date hereof but may be renewed upon payment by JNDC of the guarantee
fee at the same rate of 1.5% per annum.[40]
The guarantee was only up to 17 December 1980. JNs obligation with TRB fell due on 30 June 1980, and demand on
PhilGuarantee was made by TRB on 08 October 1980. That payment was actually made only on 10 March 1981 does not take it out of
the terms of the guarantee. What is controlling is that default and demand on PhilGuarantee had taken place while the guarantee was
still in force.
The benefit of excussion, as well as the requirement of consent to extensions of payment, is a protective device pertaining to and
conferred on the guarantor. These may be invoked by the guarantor against the creditor as defenses to bar the unwarranted
enforcement of the guarantee. However, PhilGuarantee did not avail of these defenses when it paid its obligation according to the tenor
of the guarantee once demand was made on it. What is peculiar in the instant case is that petitioners, the principal debtors themselves,
are muddling the issues and raising the same defenses against the guarantor, which only the guarantor may invoke against the creditor,
to avoid payment of their own obligation to the guarantor. The Court cannot countenance their self-seeking desire to be exonerated from
the duty to reimburse PhilGuarantee after it had paid TRB on their behalf and to unjustly enrich themselves at the expense of
PhilGuarantee.
2.
Effect of Benefit
No exhaustion may be enforced against the guarantor until the writ against the debtor is returned
unsatisfied.
The creditor who is negligent in exhausting the property designated is liable for its value, if the debtor
becomes insolvent and cannot pay as a result of such negligence.
b.
Benefit of Division
a. General rule: when there are several guarantors for one and the same debtor and debt, the obligation to
answer for the same is divided among all of them. The creditor may only claim from each debtor his
corresponding share, unless solidarity has been expressly stipulated.
Case: Effect if one of the two guarantors paid half of judgment debt.
De Guzman vs. Santos 63 Phil. 371 June 30, 1939
Facts:
A mercantile partnership, Phil-Am Constructions Co., with Toole, Abad and Santos as co-partners, was formed with P10,000 of
its capital secured by way of a loan from Paulino Candelaria. The partnership and the co-partnership bound themselves solidarily to pay
said indebtedness. Having violated the conditions of the contract, Candelaria filed an action against PACC and the co-partners for the
recovery of the loan. Candelaria obtained a writ of attachment against the co-partners by virtue of which the sheriif attached the copartnership properties. No property of the PACC was attached. To discharge the attachment, PACC as principal and Santiago Lucero and
Meliton Carlos as guarantors executed a bond in favor of Candelaria. Defendant Santos neither intervened nor signed individually in the
bond. Attachment was discharged and attached properties were returned to their owners.
Trial court rendered judgment ordering the co-partners to pay the judgment creditor the amount of the loan. Writ of execution
having been returned unsatisfied, said writ was issued
against the guarantors upon the motion of Candelaria. Lucero and Carlos,
as guarantors, paid P5,000 plus. Plaintiff de Guzman as, in her capacity as judicial administrator of the estate of the deceased Lucero,
sought to recover from Santos what the estate had paid to Candelaria from defendant. Trial court decided for plaintiff. Defendant Santos
appealed contending that he is not liable because he neither applied for nor intervened in the bond any capacity.
Issue:
W-O-N Santos is legally bound to pay what the plaintiff had advanced to Candelaria even
knowledge.
if
it
was
given
without
his
SC Ruling:
Under Article 1822 of the Civil Code, by guaranty one person binds himself to pay or
perform for a third person in case
the latter should failed to do so, and Article 1838 of the Civil
Code provides that any guarantor who pays for the debtor shall
be indemnified by the latter even if the guaranty have been undertaken without the debtors knowledge. Applying the citedprovisions, it
is obvious that Santos is legally bound to pay the plaintiff what he has advanced to Candelaria upon judgment, notwithstanding the fact
that the bond was given without his knowledge.
Defendants obligation to pay what the plaintiff had advanced is further sanctioned by the general provisions of the Civil
Code regarding obligations. Article 1158 of the Civil Code provides that the payment made by any person whether he has an interest in
the performance of the obligation or not, and whether the payment is known and approved by the debtor or whether he is unaware of it,
may be recovered from said debtor.
Any person who makes a payment for the account of another may recover from the debtor the amount payment, unless it was
made against the express will of the latter. In the latter case, he can only recover from the debtor in so far as the payment has been
beneficial to the latter. According to this legal provision, it is evident that the defendant is bound to pay to the plaintiff what the latter
had advanced to Candelaria, and this is more so because it appears that although Lucero executed the bond without his, knowledge,
nevertheless he did not object thereto or repudiate the same at any time.
And it cannot be logically deduced that the defendant did not have knowledge of the bond, firstly, because his properties were
attached and attachment could not have been levied without his knowledge, and secondly, because said properties were returned to
him and in receiving them he was necessarily apprised of the fact that a bond had been filed to discharge the attachment. Judgment
affirmed.
D.
The surety may invoke fraud, violence, prior payment, res judicata, prescription and
others of the same class.
Defenses purely personal; minority, incapacity and other vices of consent which the
principal debtor may waive; unless the guarantor was ignorant of the vice as he could
not the waive the defect.
b.
The legal interests thereon from the time the payment was made known to the debtor, even though it
did not earn interest for the creditor;
The expenses incurred by the guarantor after having notified the debtor that payment had been
demanded of him;
C.
If the guarantor should pay without notifying the debtor, the latter may enforce against him all the defenses
which he could have set up against the creditor at the time the payment was made.
Reason: The liability of the guarantor being merely subsidiary, he should really wait till after the debtor has
tried to comply. The guarantor should not, thru his own fault or negligence, be allowed to jeopardize the rights
of the debtor. By paying guarantor deprives the debtor of the opportunity to set up defenses against the
creditor.
If the guarantor has paid without notifying the debtor, and the latter not being aware of the payment, repeats
the payment, the former has no remedy whatever against the debtor, but only against the creditor.
Nevertheless, in case of a gratuitous guaranty, if the guarantor was prevented by a fortuitous event from
advising the debtor of the payment, and the creditor becomes insolvent, the debtor shall reimburse the
guarantor for the amount paid.
If one, at the request of another, becomes a guarantor for the debt of a third person who is not present, the
guarantor who satisfies the debt may sue either the person so requesting or the debtor for reimbursement.
Section 3 Effects of Guaranty as Between Co-Guarantors
C.
Defenses of co-guarantors
The co-guarantors may set up against the one who paid, the same defenses which would have pertained to the
principal debtor against the creditor, and which are not purely personal to the debtor.
CHAPTER 3
Extinguishment of Guaranty
Articles 2076 2081
I.
Extinction of Guaranty
A. Negligence of the Creditor
The creditor who is negligent in exhausting the property pointed out shall suffer the loss, to the extent of said
property, for the insolvency of the debtor resulting from such negligence.
The guarantors, even though they be solidary, are released from their obligation whenever by some act of the
creditor they cannot be subrogated to the rights, mortgages, and preference of the latter.
Case: Effect if there is impossibility of Subrogation
E. ZOBEL, INC. vs. CA
Facts:
Respondent spouses Claveria, doing business under the name "Agro Brokers," applied for a loan with respondent Consolidated
Bank and Trust Corporation (now SOLIDBANK) in the amount of P2, 875,000.00 to finance the purchase of two (2) maritime barges and
one tugboat which would be used in their molasses business. The loan was granted subject to the condition that respondent spouses
execute a chattel mortgage over the three (3) vessels to be acquired and that a continuing guarantee be executed by Ayala
International Philippines, Inc., now herein petitioner E. Zobel, Inc. in favor of SOLIDBANK. The respondent spouses agreed to the
arrangement. Consequently, a chattel mortgage and a Continuing Guaranty were executed.
However, respondent spouses defaulted in the payment of the entire obligation upon maturity. Hence, on January 31,1991,
SOLIDBANK filed a complaint for sum of money with a prayer for a writ of preliminary attachment, against respondents spouses and
petitioner.
Petitioner moved to dismiss the complaint on the ground that its liability as guarantor of the loan was extinguished pursuant
to Article 2080 of the Civil Code of the Philippines. It argued that it has lost its right to be subrogated to the first chattel mortgage in
view of SOLIDBANK's failure to register the chattel mortgage with the appropriate government agency. SOLIDBANK opposed the motion
contending that Article 2080 is not applicable because petitioner is not a guarantor but a surety.
Issues:
1.
2.
3.
SC Ruling:
Whether petitioner's obligation to respondent SOLIDBANK under the continuing guaranty is that of a surety;
Whether Article 2080 of the New Civil Code which provides: "The guarantors, even though they be solidary, are released from
their obligation whenever by some act of the creditor they cannot be subrogated to the rights, mortgages, and preferences of
the latter," is not applicable to petitioner;
Whether the failure of respondent SOLIDBANK to register the chattel mortgage did not extinguish petitioner's liability to
respondent SOLIDBANK.
A contract of surety is an accessory promise by which a person binds himself for another already bound, and agrees with the
B.
Extension of Payment
Art. 2079. An extension granted to the debtor by the creditor without the consent of the guarantor extinguishes the
guaranty. The mere failure on the part of the creditor to demand payment after the debt has become due does not
of itself constitute any extension of time referred to herein.
a.
Requisites
The extension must be an express stipulation. The extension of the term must be based on some new
agreement between the creditor and the principal debtor by virtue of which the creditor deprives himself
of his claim.
But if automatic extension is expressly provided in the contract, the discharge by extension is not
applicable.
b.
c.
Guarantors consent
The stipulation in the contract under consideration, is to the effect that upon failure to pay any installment when due the other
installments ipso facto become due and payable.
In view ofthe fact that under the express provision of the contract, the whole unpaid balance automatically becomes due and
payable upon failure to pay one installment, the act of the plaintiff in extending the payment of the installment, without the consent of
the guarantors, constituted in fact an extension of the payment of the whole amount of the indebtedness, as by that extension the
plaintiff could not have filed an action for the collection of the whole amount until after the expiration of the period of extension.
Therefore appellants' contention that after default of the payment of one installment the act of the herein
creditor in extending the time of payment discharges them as guarantors in conformity with articles 1851 and 1852 of
the Civil Code is correct.
It is a familiar rule that if a creditor, by positive contract with the principal debtor, and without the consent of the surety,
extends the time of payment, he thereby discharges the surety. . . . The time of payment may be quite as important a consideration to
the surety as the amount he has promised conditionally to pay. . . .Again, a surety has the right, on payment of the debt, to be
subrogated to all the rights of the creditor, and to proceed at once to collect it from the principal; but if the creditor has tied own hands
from proceeding promptly, by extending the time of collection, the hands of the surety will equally be bound; and before they are
loosed, by the expiration of the extended credit, the principal debtor may have become insolvent and the right of subrogation rendered
worthless. It should be observed, however, that it is really unimportant whether the extension given has actually proved prejudicial to
the surety or not. The rule stated is quite independent of the event, and the fact that the principal is insolvent or that the extension
granted promised to be beneficial to the surety would give no right to the creditor to change the terms of the contract without the
knowledge or consent of the surety. Nor does it matter for how short a period the time of payment may be extended. The principle is the
same whether the time is long or short. The creditor must be in such a situation that when the surety comes to be substituted in his
place by paying the debt, he may have an immediate right of action against the principal. The suspension of the right to sue for a
month, or even a day, is as effectual to release the surety as a year or two years.
Judgment reversed as to defendant guarantors.
In a surety bond, the sureties bound themselves to be liable in case of extension or renewal of the bond, without the necessity
of executing another indemnity agreement for the purpose and without the necessity of their being notified of such extension or
renewal. Is this agreement valid?
SC Ruling:
Yes, the agreement is valid; there is nothing in it that militates against the law, good customs, good morals, public order, or
public policy.(personal note salva: ni militate rani siya sa sentido common hehehe)
There was no other valid conclusion that could be reached by the lower court. Even appellant must have seen that so it ought
to be. That would account for the contention in his brief that the stipulation as to "any extension" without the need for his being notified
was "null and void being contrary to law, morals, good customs, public order or public policy." That is a pretty tall order. There is more
than just a hint of hyperbole in such a sweeping allegation. Appellant though ought to have realized that assertion is not the equivalent
of proof. A little more objectivity on his part should bring the realization that no offense to law or morals could be imputed to such a
contractual provision. As to good customs, that category requires something to substantiate it. A mere denunciatory characterization
certainly cannot suffice. That leaves public order or public policy. It is difficult to follow appellant's train of reasoning. He would premise
it on the indemnity agreement being a contract of adhesion. He was not at all compelled to agree to it. He was free to act either way. He
had a choice. It may be more offensive to public policy, let alone morals or good customs, if thereafter he would be allowed to go back
on his word. Besides the policy underlying such a stipulation in this litigation is clear. What was guaranteed was the faithful performance
of defendant Mutuc of his employment as a member of the crew of a vessel plying overseas. What was more logical considering the
difficulty of contacting him then for the party concerned, here appellant, to agree in advance to any extension without the need for
notification. So the parties agreed. There could be thus nothing that did offend public policy or public order when such an arrangement
was explicitly provided for. Appellant, clearly, has not made out a case for reversal.
d.
Appellants Prudencio, et al. are accommodation parties who signed on December 23, 1955 the Amendment of Real Estate
Mortgage. Mortgaging their property to the PNB to guaranty the loan of P10,000 extended to the Concepcion Construction Company.
On the same date Jose Toribio, in the same capacity as attorney-in-fact of the Company, executed also the Deed of
Assignment assigning all payments to be made by the Bureau of Public Works to the Concepcion Construction Company on account of
the contract for the construction of the Puerto Princesa building in favor of the PNB.
This assignment of credit to the contrary notwithstanding, the Bureau, with approval, of the PNB made three payments to the Company
on account of the contract price totaling P11,234.40.
On November 14, 1958, appellants Prudencio wrote the PNB contending that since the PNB authorized payments to the
e.
Defendant PLTC obtained a loan from plaintiff JWS and executed a note promising to pay said loan. Said obligation was
secured solidarily by Walter Jones and E. Elser. Upon non-payment of the principal obligation on due date, plaintiff recovered part of the
obligation from Jones estate. Plaintiff then brought suit against defendant and Elser for the remaining unpaid debt with interest.
PLTC was declared in default and ordered to pay P12,000 to the plaintiff, and Elser was likewise required to pay to the plaintiff
one-half of all aforesaid sum which PLTC should fail to pay. Elser appeared contending that the court erred in not holding that plaintiff
was guilty of unreasonable delay in bringing his action thereby causing him damages.
SC Ruling:
The plaintiff let pass some years from the maturity of the note before bringing the action for the recovery of its amount, but
the delay does not constitute laches in the sense that it had the effect of releasing both the principal debtor and its sureties from their
obligations, nor did it occasion loss of rights and privileges of such moment as to give rise to the discharge of the obligation contracted
by Elser.
It is a recognized doctrine in the matter of suretyship that with respect to the surety, the creditor is under no obligation to display any
diligence in the enforcement of his rights as a creditor. His mere inaction, indulgence, passiveness, or delay in proceeding against the
principal debtor, or the fact that he did not enforce the guaranty or apply on the payment of such funds as were available, constitute no
defense at all for the surety, unless the contract expressly requires diligence and promptness on the part of the creditor.
The mere circumstance that the creditor does not demand the compliance with the obligation immediately upon the same
becoming due, and that he more or less delays his action, does not mean or reveal an intention to grant an extension to the debtor.
Deferring the filing of the action does not imply a change in the efficacy of the contract or liability of any kind on the part of the debtor.
It is merely, without demonstration or proof to the contrary, respite, waiting, courtesy, leniency, passivity, inaction. It does not constitute
novation, because this must be express. It does not engender liability, because on the part of the creditor such can not arise except
from delay.
Judgment affirmed.
f.
Cochingyan Jr. vs R&B Surety and Ins. Co., Inc., 151 SCRA 339
The creditors undertaking to hold in abeyance any action to enforce its claims against the principal obligor did not constitute
extension of time that will discharge the guaranty.
SC Ruling:
PNB's undertaking under the Trust Agreement "to hold in abeyance any action to enforce its claims" against R & B Surety did
not extend the maturity of R & B Surety's obligation under the Surety Bond. The Principal Obligation had in fact already matured, along
with that of R &B Surety, by the time the Trust Agreement was entered into.
Thus, the situation was that precisely envisaged in Article 2079: the mere failure on the part of the creditor to demand
payment after the debt has become due does not of itself constitute any extension of the referred to herein.
The theory behind Article 2079 is that an extension of time given to the principal debtor by the creditor without the surety of
his right to pay the creditor and to be immediately subrogated to the creditor's remedies against the principal debtor upon the original
maturity date. The surety is said to be entitled to protect himself against the contingency of the principal debtor or the indemnitors
becoming insolvent during the extended period.
The underlying rationale is not present in the instant case. As this Court has held, mere delay or negligence in proceeding
against the principal will not discharge a surety unless there is between the creditor and the principal debtor a valid and binding
agreement therefor, one which tends to prejudice [the surety] or to deprive it of the power of obtaining indemnity by presenting a legal
objection for the time, to the prosecution of an action on the original security.
In the instant case, there was nothing to prevent the petitioners from tendering payment, if they were so minded, to PNB of
the matured obligation on behalf of R & B Surety and thereupon becoming subrogated to such remedies as R & B Surety may have
against PAGRICO.
C.
Dacion en pago when payment of a sum money, is paid by giving a thing, you cannot anymore go after
the guarantor, because there was an extinguishment of principal obligation, it does not revive even if the
thing is subsequently lost by eviction unless the obligation is facultative (refer to Art. 2077)
In case of consignation, the guarantor is released by the consent of the creditor to the withdrawal of the
consignation (refer to Art.1261)
D.
E.
Remission of Debt
Review 1270-1274
Note:
If there is a condonation of a joint obligation, the guaranty discharged is only up to that specific condoned
obligation
If in favor of one co-guarantor, without the consent of the others, it benefits the latter to the extent of the
share of the one released. If they consent, they are not released.
F.
Merger
Review 1275-1277
a. Between creditor and debtor extinguishes accessory obligation of guaranty because the principal obligation is
extinguished
b. Between creditor and guarantor does not extinguish principal obligation, but the guaranty is extinguished
c. Between debtor and guarantor the guaranty is extinguished, because the debtor cannot be his own guarantor
-but the sub-guarantor if any, is not released
-other securities, pledges, mortgages are not affected
G.
Compensation
Review 1278-1290
Note: Takes place when two persons, in their own right, are creditors and debtors of each other. Legal
compensation takes place by operation of law. (No need to go to court?)
H.
Novation
Review1291-1304
a. When the principal obligation is extinguished The original obligation is extinguished, so the guaranty will be
extinguished.
b. When the principal obligation is modified If less burdensome, the guaranty subsists. If more burdensome, the
guaranty is extinguished, if the guarantor did not consent. If the debt is merely increased, the guarantor is liable for
the original debt only.
I.
Death
a. Of the guarantor does not extinguish the guaranty
b. Of the debtor does not extinguish the guaranty
Stronghold Insurance Company Inc. vs Republic-Asahi Glass Corporation, GR147561, June 22, 2006
A surety companys liability under the performance bond it issues is solidary. The death of the principal obligor does not, as a rule,
extinguish the obligation and the solidary nature of that liability.
Facts:
Republic Asahi contracted with JDS for construction of roads in its compound, with Stronghold Insurance as surety. JDS failed to
perform its obligation, so there was a claim for damages and to forfeit the performance bond. Stronghold refused to pay. Strongholds
main defense is that the principal debtor JDS died, so the accessory obligation of surety is also extinguished.
SC Ruling:
The Supreme Court said, WTF STRONGHOLD? Wa ka nalifong? Wala ba ka nasayod nga as a general rule, the death of either
the creditor or the debtor does not extinguish the obligation. Obligations are transmissible to the heirs, except when the transmission is
prevented by the law, the stipulations of the parties, or the nature of the obligation. Only obligations that are personal or are identified
with the persons themselves are extinguished by death. In the present case, whatever monetary liabilities or obligations Santos had
under his contracts with respondent were not intransmissible by their nature, by stipulation, or by provision of law. Hence, his death did
not result in the extinguishment of those obligations or liabilities, which merely passed on to his estate. Death is not a defense that he
or his estate can set up to wipe out the obligations under the performance bond. Consequently, petitioner as surety cannot use his
death to escape its monetary obligation under its performance bond.
The suretys obligation is not an original and direct one for the performance of his own act, but merely accessory or collateral to the
obligation contracted by the principal. Nevertheless, although the contract of a surety is in essence secondary only to a valid principal
obligation, his liability to the creditor or promisee of the principal is said to be direct, primary and absolute; in other words, he is directly
and equally bound with the principal.
Under the law and jurisprudence, respondent may sue, separately or together, the principal debtor and the petitioner herein, in view of
the solidary nature of their liability. The death of the principal debtor will not work to convert, decrease or nullify the substantive right of
the solidary creditor. Evidently, despite the death of the principal debtor, respondent may still sue petitioner alone, in
accordance with the solidary nature of the latters liability under the performance bond.
J.
CHAPTER 4
Legal and Judicial Bonds
Articles 2082 2084
Judicial Guaranty
Note:
-Judicial bondsman cannot invoke benefit of exhaustion of the property of the principal debtor
-The judicial guarantor must have capacity, integrity, and sufficient property.
-Pledge or mortgage is admissible in lieu of personal guaranty
-There is no benefit of exhaustion, either for guarantors or sub-guarantors (Art.2084)
-The claim against the Sureties must be proved in the same action as against the Principal and included in the final
Judgment (see Rules of Court)
-Where payment on the bond was premised upon the non-compliance of the contract by the principal debtor, the
liability of the guarantor is subsidiary and not solidary; nor can he be held responsible if the complaint against the
debtor is dismissed.
TITLE XVI PLEDGE, MORTGAGE AND ANTICHRESIS
CHAPTER 5
Provisions Common to Pledge and Mortgage
Common Characteristics
A. they must be constituted to secure fulfillment of a principal obligation (accessories) Art. 2085
a. they may secure all kinds of obligations pure or conditional (Art. 2091)
b. the principal obligation may be future but the security obligation does not come into existence until the principal
does.
c. the principal obligation may be natural. Voidable or unenforceable provided the fact is known to the pledgor or
mortgagor.
Case: Mortgage Given to Secure Future Advancements
DIONISIO MOJICA vs. CA, and RURAL BANK OF YAWIT, INC.,
Facts:
Plaintiff Leonardo Mojica (deceased) contracted a loan of P20,000.00 from defendant Rural Bank of Kawit, Inc. (now
respondent). This loan was secured by a real estate mortgage executed on the same date by the plaintiffs spouses Leonardo Mojica and
Marina Rufido
The real estate mortgage contract states among others:
... agreement for the payment of the loan of P20,000.00 and such other loans or other advances already
obtained or still to be obtained by the mortgagors ...
2. ... but if the mortgagors shall well and truly fulfill the obligation above stated according to the terms
thereof then this mortgage shall become null and void.
The loan of P20,000.00 by the plaintiffs spouses was fully and completely paid. A new loan in the amount of P18,000.00 was
obtained by plaintiffs spouses from the defendant Rural Bank which loan matured.
No formal deed of real mortgage was constituted over any property of the borrowers, although the top of the promissory note dated
March 5, 1974, contained the following notation. This promissory note is secured by a Real Estate Mortgage executed before the Notary
Public of the Municipality of Kawit, Mrs. Felisa Senti
The Real Estate Mortgage mentioned above is the registered mortgage which guaranteed the already paid loan of P20,000.00
granted on February spouses Leonardo Mojica and Marina Rufido failed to pay their obligation after its maturity. Which prompt the bank
to extrajudicially foreclosed the real estate mortgage on the justification that it was adopted as a mortgage for the new loan of
P18,000.00. The proceeds from the sale of the piece of land of plaintiffs spouses were applied to their outstanding obligation with
defendant bank
Meanwhile, the son of petitioners-spouses, attempted to pay the debt of P18,000.00 which the defendant rural bank received
and accepted with the issuance of the defendant's official receipt.
Upon inquiry by Dionisio Mojica on the unpaid balance of the loan, the respondent rural bank issued a 'Computation Slip"
indicating therein, that as of August 14, 1981, the outstanding balance plus interest computed from March 5, 1975 was P21,272.50
(Ibid.).
However, the bank executed an affidavit of consolidation of ownership, which it subsequently filed with the Register of Deeds
of Cavite. As a result, a TCT was issued in its favor by the Register of Deeds. The bank then refused to allow Dionisio Mojica to pay the
unpaid balance of the loan which resulted in the filing of a complaint.
Issue:
Whether or not the foreclosure sale had for its basis, a valid and subsisting mortgage contract. Otherwise stated, there is a need to
ascertain the intention of the parties as to the coverage of the mortgage in question with respect to future advancements.
SC Ruling:
It has long been settled by a long line of decisions that mortgages given to secure future advancements are valid and legal
contracts; that the amounts named as consideration in said contract do not limit the amount for which the mortgage may stand as
security if from the four corners of the instrument the intent to secure future and other indebtedness can be gathered.
A mortgage given to secure advancements is a continuing security and is not discharged by repayment of the amount named
in the mortgage, until the full amount of the advancements are paid (Lim Julian v. Lutero, 49 Phil. 704-705 [1926]). In fact, it has also
been held that where the annotation on the back of a certificate of title about a first mortgage states "that the mortgage secured the
payment of a certain amount of money plus interest plus other obligations arising there under' there was no necessity for any notation
of the later loans on the mortgagors' title. It was incumbent upon any subsequent mortgagee or encumbrances of the property in
question to e e the books and records of the bank, as first mortgagee, regarding the credit standing of the debtors.
The evidence on record shows that the amounts of P4,700.00 and P9,958.00 were accepted by the bank on July 19 and August
11, 1980 as deposits for conventional redemption after the property covered by real estate mortgage became the acquired asset of the
bank and priced at P85,000.00 and after petitioner had lost all rights of legal redemption because more than one year had already
elapsed from June 29, 1979, the date the certificate of sale was registered in the office of the Registry of Deeds of Cavite. Indeed, the
conventional redemption was subject to be exercised up to March 3, 1982 and was extended up to April 19, 1982 for a fixed amount of
P85,000.00. The respondent bank even favored the petitioner by giving them the first preference to repurchase the property but they
failed to avail of this opportunity, although the bank "is certainly disposed to release at anytime" the deposits.
The evidence on record also shows that the mortgage property was auctioned on June 27, 1979. The only bidder was the
respondent bank which bid for P26,387.04. As the highest bidder, the respondent bank can rightfully consolidate its title over the
property. As aptly stated by respondent Court:
B. these contracts can be constituted only by the absolute owner of the thing pledged or mortgaged.
B.
The right of plaintiff-appellee to foreclose her mortgage on the land in question depends not so much on whether she could
take said land within the prohibitive period of five years from the issuance of defendants' patent for the satisfaction of the indebtedness
in question, but on whether the deed of mortgage is at all valid and enforceable, since the land mortgaged was apparently still part of
the public domain when the deed of mortgage was constituted.
As it is an essential requisite for the validity of a mortgage that the mortgagor be the absolute owner of the thing
mortgaged (Art. 2085), the mortgage here in question is void and ineffective because at the time it was constituted, the mortgagor was
not yet the owner of the land mortgaged and could not, for that reason, encumber the same to the plaintiff-appellee.
Thus, a mortgage executed before the issuance of a patent to the mortgagor is void and ineffective.
DBP granted a loan to Sps. Olidiana secured by several real estate mortgage. At the time of the mortgage, the properties were
still the subject of a free patent application. Subsequently, Sps. Olidiana filed with Bureau of Lands to relinquish and waive all their rights
and interests over the properties in favor of Jesusa Chupuico and Mylo Quinto.
DBP also granted additional loan to the spouses with the same collateral.
For failure of the spouses to comply with the terms and conditions of their promissory note and mortgage contract, DBP
extrajudicially foreclosed all the mortgaged properties. However when DBP tried to register the sale, it fiscovered that the lots were in
the names of Chupuico and Quinto.
DBP then filed a quieting of title but the court ruled against DBP and was affirmed by the CA.
Issue:
Was the mortgage contract valid?
SC Ruling:
No, Art. 2085 par.2 specifically requires that the pledgor or mortgagor be the absolute owner of the thing pledged or
mortgaged. Thus, since the disputed property was not owned by the Spouses when they mortgaged it with DBP the contract of
mortgage and all the subsequent legal consequences as regards the lots are null and void. For, the law explicitly requires as imperative
for the validity of a mortgage that the mortgagor be the absolute owner of what is mortgaged.
C. the one constituting the pledge or mortgage should have free disposal of the property, or should be legally authorized for
the purpose.
D. the thing pledged or mortgaged may be alienated at the instance of the creditor, for payment if the principal obligation.
a. A mortgagor is not entitled to the exhaustion of the property of the principal debtor. The benefit applies only to
personal guaranty and not to real guaranty.
C.
D.
Plaintiff, Southern Motors, Inc., brought this action against Eliseo Barbosa, to foreclose a real estate mortgage, constituted by
the latter in favor of the former, as security for the payment of the sum of P2,889.53 due to said Plaintiff from one Alfredo Brillantes,
who had failed to settle his obligation in accordance with the terms and conditions of the corresponding deed of mortgage.
Defendant argues that he has executed the deed of mortgage for the only purpose of guaranteeing as surety and/or
guarantor the payment of the above mentioned debt of Mr. Alfredo Brillantes in favor of the Plaintiff.
And that the Plaintiff has no right action against the herein Defendant on the ground that said Plaintiff, without motive
whatsoever, did not intent or intent to exhaust all recourses to collect from the true debtor Mr. Alfredo Brillantes the debt
contracted by the latter in favor of said Plaintiff, and did not resort nor intends to resort all the legal remedies against the true
debtor Mr. Alfredo Brillantes, notwithstanding the fact that said Mr. Alfredo Brillantes is solvent and has many properties within
the Province of Iloilo.
Thereafter, the Judge rendered the decision, from which the Defendant has appealed.
Issue:
Whether the mortgage in question could be foreclosed although Plaintiff had not exhausted, and did not intend to exhaust, the
properties of his principal debtor, Alfredo Brillantes.
SC Ruling:
The right of guarantors, under Article 2058 of the Civil Code of the Philippines, to demand exhaustion of the property of the principal
debtor, exists only when a pledge or a mortgage has not been given as special security for the payment of the principal
obligation. Guarantees, without any such pledge or mortgage, are governed by Title XV of said Code, whereas pledges and mortgages
fall under Title XVI of the same Code, in which the following provisions, among others, are found.
It has been held already (Saavedra vs. Price, 68 Phil., 688), that a mortgagor is not entitled to the exhaustion of the property of the
principal debtor.
Although an ordinary personal guarantor not a mortgagor or pledgor may demand the aforementioned exhaustion, the creditor
may, prior thereto, secure a judgment against said guarantor, who shall be entitled, however, to a deferment of the execution of said
judgment against him until after the properties of the principal debtor shall have been exhausted to satisfy the obligation involved in the
case.
b.
Pactum Commisorium
Francisco Realty granted a loan of 7.5 million to respondents, sps. Rumolo Erlinda Javillonar, in consideration of which the
latter executed a promissory note, a deed of mortgage an an undated deed of sale of the mortgage property. The promissory note
provided that upon failure of the mortgagor to pay the interest without prior agreement with the mortgagee, full possession of the
property will be transmitted and the deed of sale will be registered.
When private respondents failed to pay the interest petitioner registered the sale. Private respondents refused to vacate when
the petitioner demanded possession claiming that the undated deed of sale was merely an additional security for the payment of the
loan.
The trial court ruled in favor of Francisco Realty. The CA reversed the decision and ruled that the sale was void being a pactum
commissorium
Issue:
Was the agreement a pactum commissorium?
SC Ruling:
The stipulation in the promissory notes providing that, upon failure of respondent spouse to pay interest, ownership of the
property would be automatically transferred to petitioner Francisco Realty and the deed of sale in its favor would be registered, are in
substance a pactum commisarium . they embody the two elements of pactum commisarium. 1. that there should be a pledge or
mortgage wherein a property is pledged or mortgaged by way of security for the payment of the principal obligation 2. That there should
be a stipulation for an automatic appropriation by the creditor of the thing pledged or mortgaged in the event of non-payment of the
principal obligation within the stipulated period.
The subject transaction being void, the registration of the deed of sale by virtue of which petitioner Francisco Realty was able
to obtain a TCT must also be declared void.
E.
Case: Rule where debt is divisible or debtors are not solidarily liable
Dayrit vs. CA
Facts:
The issue in the case is whether or not respondents Court of First Instance and the CA erred in refusing to allow the alleged
proposed deposit of a sum equivalent to 1/3 of the loan agreed upon and in refusing to release forever the collaterals owned by Dayrit,
although the other 2/3 portion of the loan obligation had been satisfied due to insolvency of the other co-defendants.
SC Ruling:
While it is true that the obligation is merely joint and each of the defendants is obliged to pay only his/her 1/3 share of the
joint obligation, the undisputed fact remains that the intent and purpose of the loan and mortgage agreement was t o secure the entire
loan of 150,000 that the respondent mobil extended to the defendants. The court found that the defendants had violated the loan and
mortgage agreement, they having paid but only one installment.
As a rule, a mortgage is directly and immediately subject to the property upon which it is imposed, the same being indivisible even
though the debt may be divided, and such indivisibility is unaffected by the fact that the debtors are not solidarily liable.
When several things are mortgaged or pledged, each thing for a determinate portion of a debt, the pledges or mortgages are
considered separate from each other. But when several things are given to secure the same debt it is entirely, all of them are liable for
the debt, and the creditor does not have to divide his actions by distributing the debt among the various things pledged or mortgaged.
Even when only a part of the debt remains unpaid, all the things are still liable for such balance. Hence, a mortgage voluntarily
constituted by the debtor on two or more parcels of land is one and indivisible, and the mortgagee has the right to have either or both
parcels, jointly or singly, sold to satisfy his claim. In case the mortgaged properties are a house and lot, it cannot be claimed that the lot
and the house should be sold separately and not together
Under a Real Estate Mortgage spouses Vicente Yu and Demetria Lee-Yu mortgaged their title, interest, and participation over
several parcels of land in favor of the Philippine Commercial International Bank (respondent) as security for the payment of a loan in the
amount of P9,000,000.00.
As the petitioners failed to pay the loan, the interest, and the penalties due thereon, the bank Extra-Judicially Foreclosed the
Real Estate Mortgage. At the auction sale respondent emerged as the highest bidder. the sale was registered with the Registry of Deeds
About two months before the expiration of the redemption period, respondent filed an Ex-Parte Petition for Writ of Possession before the
Regional Trial Court of Dagupan City,
Petitioners filed a Motion to Dismiss stating that the Certificate of Sale is void because respondent violated Article 2089 of the
Civil Code on the indivisibility of the mortgaged by conducting two separate foreclosure proceedings on the mortgage properties in
Dagupan City and Quezon City and indicating in the two notices of extra-judicial sale
RTC denied petitioners Motion to Dismiss, ruling that the filing of a motion to dismiss is not allowed in petitions for issuance of
writ of possession under Section 7 of Act No. 3135.
On June 1, 2000, petitioners filed a Petition for Certiorari with the CA. but was dismissed Hence, the present Petition for
Review on Certiorari.
Issue: Whether or not a real estate mortgage over several properties located in different locality can be separately foreclosed in
different places.
SC Ruling:
The Court finds that petitioners have a mistaken notion that the indivisibility of a real estate mortgage relates to the venue of
extra-judicial foreclosure proceedings. The rule on indivisibility of a real estate mortgage is provided for in Article 2089 of the Civil Code,
which provides:
Art. 2089. A pledge or mortgage is indivisible, even though the debt may be divided among the successors in interest of the
debtor or of the creditor.
Therefore, the debtors heir who has paid a part of the debt cannot ask for the proportionate extinguishment of the pledge or
mortgage as the debt is not completely satisfied. Neither can the creditors heir who received his share of the debt return the pledge or
cancel the mortgage, to the prejudice of the other heirs who have not been paid.
From these provisions is excepted the case in which, there being several things given in mortgage or pledge, each one of
them guarantees only a determinate portion of the credit.
The debtor, in this case, shall have a right to the extinguishment of the pledge or mortgage as the portion of the debt for
which each thing is specially answerable is satisfied.
This rule presupposes several heirs of the debtor or creditor and therefore not applicable to the present case.
the debtor cannot ask for the release of any portion of the mortgaged property or of one or some of the several lots mortgaged unless
and until the loan thus secured has been fully paid, notwithstanding the fact that there has been partial fulfillment of the obligation.
Hence, it is provided that the debtor who has paid a part of the debt cannot ask for the proportionate extinguishment of the mortgage
as long as the debt is not completely satisfied.
In essence, indivisibility means that the mortgage obligation cannot be divided among the different lots, that
is, each and every parcel under mortgage answers for the totality of the debt.
The indivisibility of the real estate mortgage is not violated by conducting two separate foreclosure proceedings on mortgaged
properties located in different provinces as long as each parcel of land is answerable for the entire debt . Considering the indivisibility of
a real estate mortgage, the mortgaged properties in Dagupan City and Quezon City are made to answer for the entire debt of
P10,437,015.29.
the Court holds that the rule on indivisibility of the real estate mortgage cannot be equated with the venue of foreclosure
proceedings on mortgaged properties located in different provinces since these are two unrelated concepts.
a.
the security is indivisible even if the several debtors are not solidarily bound. The creditor may enforce the
obligation of each debtor against the whole security.
F.
Promise to constitute pledge or mortgage gives rise to personal action only (Article 2092)
III. Elements
A. Parties Capacity
A pledgor who is not the debtor has the rights of a guarantor (Art. 2066 to Art.
2070: reimbursement and subrogation; and Art. 2077 to Art. 2081: release) and
is not prejudicial by any waiver of defenses by the debtor (Art. 2120).
B. Object
The Object (thing given) must be: (a) movable; (b) within the commerce of man;
(c) susceptible of possession (Article 2094). It may be money, goods or credits
and includes their fruits, interest, and earnings (Art. 2102).
If a warehouse receipt is pledged, the pledgor retains ownership and bears the
risk of the loss of the goods represented by the receipt.
Effect where carabaos pledged not actually delivered to the creditor
possession of the property within the meaning the Civil Code. But it is argued that at the time of
the levy the animals in question were in the possession of one Simon Jacinto; that Jacinto was
the plaintiff's tenant; and that the tenant's possession was the possession of his landlord.
In order to constitute the contract of pledge, that the pledge be placed in the possession
of the creditor or of a third person appointed by common consent.
In his commentary on this article Manresa says:
This requisite is most essential and is characteristic of a pledge without which the contract
cannot be regarded as entered into or completed, because, precisely, in this delivery lies the
security of the pledge. Therefore, in
It is, of course, evident that the delivery of possession implies a change in the actual
possession of the property pledged and that a mere symbolic delivery is not sufficient.
In the present case the animals in question were in the possession of Tiburcia Buhayan
and Simon Jacinto before the alleged pledge was entered into and apparently remained with
them until the execution was levied, and there was no actual delivery of possession to the
plaintiff himself. There was therefore in reality no change in possession.
From what has been said it follows that the judgment appealed from must be reversed and it is
ordered and adjudged that the plaintiff take nothing by his action. Without costs. So ordered.
a. Incorporeal Rights
Incorporeal Rights may be pledged if presented by documents which must be
delivered or indorsed if negotiable, to the creditor.
Effect of Stock Assignment
LOPEZ vs. CA
Facts:
Benito H. Lopez obtained a loan in the amount of P20,000.00 from the Prudential Bank and Trust Company. He executed a promissory
note for the same amount, in favor of the said Bank, binding himself to repay the said sum one year after the said date, with interest at the rate of 10%
per annum. In addition to said promissory note, he executed Surety Bond No. 14164 in which he, as principal, and Philippine American General
Insurance Co., Inc. (PHILAMGEN) as surety, bound themselves jointly and severally in favor of Prudential Bank for the payment of the sum of
P20,000.00.
Lopez also executed in favor of Philamgen an indemnity agreement whereby he agreed "to indemnify the Company and keep it
indemnified and hold the same harmless from and against any and all damages, losses, costs, stamps, taxes, penalties, charges and expenses of
whatever kind and nature which the Company shall or may at any time sustain or incur in consequence of having become surety upon the bond." At
the same time, Lopez executed a deed of assignment of 4,000 shares of the Baguio Military Institution entitled "Stock Assignment Separate from
Certificate"
With the execution of this deed of assignment, Lopez endorsed the stock certificate and delivered it to Philamgen. It appears from the
evidence on record that the loan of P20,000.00 was approved conditioned upon the posting of a surety bond of a bonding company acceptable to the
bank. Thus, Lopez persuaded Emilio Abello, Assistant Executive Vice-President of Philamgen and member of the Bond Under writing Committee to
request Atty. Timoteo J. Sumawang, Assistant Vice- President and Manager of the Bonding Department, to accommodate him in putting up the bond
against the security of his shares of stock with the Baguio Military Institute, Inc. It was their understanding that if he could not pay the loan, VicePresident Abello and Pio Pedrosa of the Prudential Bank would buy the shares of stocks and out of the proceeds thereof, the loan would be paid to
the Prudential Bank. On June 2, 1960, Lopez' obligation matured without it being settled.
Issue:
a) Where a party "sells, assigns and transfers" and delivers shares of stock to another, duly endorsed in blank, in consideration of a contingent
obligation of the former to the latter, and, the obligations having arisen, the latter causes the shares of stock to be transferred in its name, what is the
juridical nature of the transaction-a dation in payment or a pledge?
b) Where the debtor assigns the shares of stock to the creditor under an agreement between the latter and determinate third persons that the latter
would buy the shares of stock so that the obligations could be paid out of the proceeds, was there a novation of the obligation by substitution of
debtor?
SC Ruling:
a.
The stock assignment is in truth and in fact, a pledge.
Considering the explicit terms of the deed denominated "Stock Assignment Separate from Certificate", hereinbefore copied verbatim,
Lopez sold, assigned and transferred unto Philamgen the stocks involved "for and in consideration of the obligations undertaken" by Philamgen
"under the terms and conditions of the surety bond executed by it in favor of the Prudential Bank" and "for value received". On its face, it is neither
pledge nor dation in payment. The document speaks of an outright sale as there is a complete and unconditional divestiture of the incorporeal
property consisting of stocks from Lopez to Philamgen. The transfer appears to have been an absolute conveyance of the stocks to Philamgen
whether or not Lopez defaults in the payment of P20,000.00 to Prudential Bank. While it is a conveyance in consideration of a contingent obligation, it
is not itself a conditional conveyance.
It is true that if Lopez should "well and truly perform and fulfill all the undertakings, covenants, terms, conditions, and agreements stipulated" in his
promissory note to Prudential Bank, the obligation of Philamgen under the surety bond would become null and void. Corollarily, the stock assignment,
which is predicated on the obligation of Philamgen under the surety bond, would necessarily become null and void likewise, for want of cause or
consideration under Article 1352 of the New Civil Code. But this is not the case here because aside from the obligations undertaken by Philamgen
under the surety bond, the stock assignment had other considerations referred to therein as "value received". Hence, based on the manifest terms
thereof, it is an absolute transfer.
Notwithstanding the express terms of the "Stock Assignment Separate from Certificate", however, We hold and rule that the transaction
should not be regarded as an absolute conveyance in view of the circumstances obtaining at the time of the execution thereof.
It should be remembered that on June 2, 1959, the day Lopez obtained a loan of P20,000.00 from Prudential Bank, Lopez executed a promissory
note for ?20,000.00, plus interest at the rate of ten (10%) per cent per annum, in favor of said Bank. He likewise posted a surety bond to secure his
full and faithful performance of his obligation under the promissory note with Philamgen as his surety. In return for the undertaking of Philamgen under
the surety bond, Lopez executed on the same day not only an indemnity agreement but also a stock assignment.
The indemnity agreement and the stock assignment must be considered together as related transactions because in order to judge the intention of the
contracting parties, their contemporaneous and subsequent acts shall be principally considered. Thus, considering that the indemnity agreement
connotes a continuing obligation of Lopez towards Philamgen while the stock assignment indicates a complete discharge of the same obligation, the
existence of the indemnity agreement whereby Lopez had to pay a premium for a period of one year and agreed at all times to indemnify Philamgen
of any and all kinds of losses which the latter might sustain by reason of it becoming a surety, is inconsistent with the theory of an absolute sale for
and in consideration of the same undertaking of Philamgen. There would have been no necessity for the execution of the indemnity agreement if the
stock assignment was really intended as an absolute conveyance. Hence, there are strong and cogent reasons to conclude that the parties intended
This action is brought to recover the possession of four carabaos with damages.
Defendant Alejo de la Flor recovered a judgment against Tiburcia Buhayan. Under this
judgment the defendant Ganzon, as sheriff levied execution on the carabaos in question which
were found in the possession of one Simon Jacinto but registered in the name of Tiburcia
Buhayan.
The plaintiff, Eulogio Betita, a third party claim (terceria) alleges that the carabaos had
been mortgaged to him and as evidence thereof presented a document, but the sheriff proceeded
with the sale of the animals at public auction where they were purchased by the defendant
Clemente Perdena, and this action was thereupon brought.
Issue:
Effects of pledge not in a public instrument
SC Ruling:
Manresa, in commenting on article 1865, says:
ART. 1865. A pledge will not be valid against a third party if the certainty of
the date is not expressed in a public instrument.
Considering the effects of a contract of pledge, it is easily understood that,
without this warranty demanded by law, the case may happen wherein a debtor in
bad faith from the moment that he sees his movable property in danger of
execution may attempt to withdraw the same from the action of justice and the
reach of his creditors by simulating, through criminal confabulations, anterior and
fraudulent alterations in his possession by means of feigned contracts of this
nature; and, with the object of avoiding or preventing such abuses, almost all the
foreign writers advise that, for the effectiveness of the pledge, it be demanded as a
precise condition that in every case the contract be executed in a public writing,
for, otherwise, the determination of its date will be rendered difficult and its proof
more so, even in cases in which it is executed before witnesses, due to the
difficulty to be encountered in seeking those before whom it was executed.
Our code has not gone so far, for it does not demand in express terms that in
all cases the pledge be constituted or formalized in a public writing, nor even in
private document, but only that the certainty of the date be expressed in the first
of the said class of instruments in order that it may be valid against a third party;
and, in default of any express provision of law, in the cases where no agreement
requiring the execution in a public writing exists, it should be subjected to the
general rule, and especially to that established in the last paragraph of article
1280, according to which all contracts not included in the foregoing cases of the
said article should be made in writing even though it be private, whenever the
amount of the presentation of one or of the two contracting parties exceeds 1,500
pesetas. (Vol. 12, ed., p. 421.)
If the mere filing of a private document with the sheriff after the levy of
execution can create a lien of pledge superior to the attachment, the purpose of
the provisions of article 1865 as explained by Manresa clearly be defeated.
From what has been said it follows that the judgment appealed from must be
reversed and it is ordered and adjudged that the plaintiff take nothing by his action.
IV. Classes
A. Voluntary
Created by the will of the parties
B. Legal
Created by operation of law
Articles 2097 2130
I. Effects as to the pledgee
A. Rights of the pledgee
1. RETENTION OF THE THING
to retain the thing in his possession of in that of the third person to whom it has
been delivered. Until the debt is paid. With the corresponding obligation to take
care of it as a good father of a family.
a. USE OF THE THING
He may use the thing pledge only if authorized or if its preservation so
requires. Otherwise, the pledgor may ask for the deposit of the thing.
b. DEPOSIT THE THING
The pledgee cannot deposit the thing pledged with a third person unless so
authorized.
2. REIMBURSEMENT
To receive reimbursement for the expenses incurred for the preservation of the
thing pledged.
3. COMPENSATION OF FRUITS WITH WHAT IS DUE THE CREDITOR
fruits, income dividends or interest earned or produced by the thing pledged
with those due the creditor.
* if none are owing, or if there is an excess they shall be applied to the principal of
the debt.
* offsprings of animals pledged belong to the pledgor but are subject to the pledge
if there is no contrary stipulation.
4. ACTIONS OF RECOVERY AND DEFENSE
the creditor may institute or bring actions belonging to the owner in order to
defend and recover the thing pledged.
5. PREFERENCE OF CREDIT
see Art. 2241 no. 4 ^_^
6. SALE OF THE SECURITY
GROUNDS:
a. PRECAUTIONARY if, without fault of the pledgee, the thing runs the risk of
destruction, impairment or diminution in value, he may cause it to be sold in
public sale. Unless, the pledgor demand its return, offering another in its stead,
of the same kind and not of inferior value. If sold, the price is substituted for the
security.
b. FORECLOSURE- if the credit is not paid in due time
MODES OF FORECLOSURE:
a. JUDICIAL
b. EXTRA JUDICIAL
Procedure:
1. At public auction (the owner may bid)
2. with notice to the debtor and pledgor, stating the amount for which the
thing will be sold.
3. the pledgor or owner may bid at the sale and must be preferred if he
offers the same as that of the highest bidder.
4. the pledgee may bid as well, but his offer is voyed if he is the only bidder.
5. the bids must be for payment at once, if a bid is accepted, it operates as
payment to the pledgee in so far as the debtor or pledgor is concerned.
Without deciding whether or not the action to recover the thing pledged may prescribe in any
case, it not being necessary for the purposes of this opinion, but supposing that it may, still the
defendant's contention is untenable. In the document evidencing the loan in question there is
stated:
"I transfer by way of pledge the following jewels." That this is a valid contract of pledge there
can be no question. As a matter of fact the defendant does not question it, but take s it for
granted.
However, it is contended that the obligation of the defendant to return the jewels pledged must
be considered as not stated in writing, for this obligation is not expressly mentioned in the
document.
But if this contract of pledge is in writing, it must necessarily be admitted that the action to
enforce the right, which constitutes the essence of this contract, is covered by a written contract.
The duty of the creditor to return the thing pledged in case the principal obligation is fulfilled is
essential in all contracts of pledge. This constitutes, precisely, the consideration of the debtor in
this accessory contract, so that if this obligation of the creditor to return to thing pledged, and
the right of the debtor to demand the return thereof, are eliminated, the contract would not be a
contract of pledge. It would be a donation.
If the right of the plaintiffs to recover the thing pledged is covered by a written contract,
the time for the prescription of this action is ten years, according to section 43 of the Code of
Civil Procedure.
Computing the time from that date to that of the filing of the complaint in this cause,
October 9, 1920, it appears that the ten years fixed by the law for the prescription of the action
have not yet elapsed.
On the other hand, the contract of loan with pledge is in writing and the action of the
defendant for the recovery of the loan does not prescribe until after ten years. It is unjust to hold
that the action of the plaintiffs for the recovery of the thing pledged, after the payment of the
loan, has already prescribed while the action of the defendant for the recovery of the loan has
not yet prescribed. The result of this would be that the defendant might have collected the loan
and at the same time kept the thing pledged.
The motion for reconsideration is denied.
b. Effect of return of the thing to pledgor
The return of the thing pledged to the pledgor or owner extinguishes the
pledge (NOT THE PRINCIPAL OBLIGATION)
1. Effect of contrary stipulation
A stipulation to the contrary is VOYED!!
2. Presumption if thing is in possession of the pledgor
If subsequent to the perfection of the pledge, the pledgor or another
person who derives title from him is in possession of the thing pledged, it
is presumed prima facie that the pledgee returned it.
II. Effects as to the pledgor
A. Rights of the pledgor
a. Remains the owner the pledgor remains the owner of the thing pledged, until
its sale, unless the thing is expropriated.
(Art. 2103. Unless the thing pledged is expropriated, the debtor continues to be
the owner thereof.
Nevertheless, the creditor may bring the actions which pertain to the owner of
the thing pledged in order to recover it from, or defend it against a third person.)
b. May demand deposit of the thing He may demand the deposit of the thing if
endangered by fault or negligence of the pledgee or used by the pledgee.
(Art. 2106. If through the negligence or wilful act of the pledgee, the thing
pledged is in danger of being lost or impaired, the pledgor may require that it be
deposited with a third person.)
(Art. 2104. The creditor cannot use the thing pledged, without the authority of
the owner, and if he should do so, or should misuse the thing in any other way,
the owner may ask that it be judicially or extrajudicially deposited. When the
preservation of the thing pledged requires its use, it must be used by the
creditor but only for that purpose.)
NO. Applying the principles underlying the nature of a mortgage, the real estate mortgage can
not be substituted by a surety bond as ordered by the trial court. The mortgage lien in favor of
Petitioner Rodolfo Ganzon is inseparable from the mortgaged property. It is a right in rem, a lien
on the property. To substitute the mortgage with a surety bond would convert such lien from a
right in rem, to a right in personam. This conversion can not be ordered for it would abridge the
rights of the mortgagee under the mortgage contract.
Effect of sale of mortgaged property
Bonnevie vs. CA
Issue:
Whether or not respondents are liable for the deficiency claim of petitioner.
Take Note: The price in which the mortgaged property was sold was P104,000 which was less than
the amount of respondents indebtedness which is P131,642.33.
SC Ruling:
No. the respondents are not responsible for the deficiency claim. While it is true that in
extrajudicial foreclosure of mortgage, the mortgagee has the right to recover the deficiency from the
debtor this presupposes that the foreclosure must first be valid.
But in this case, the foreclosure is invalid. If demand was made and duly received by the
respondents and the latter still did not pay, then they were already in default and foreclosure was
proper. However, if demand was not made, then the loans had not yet become due and demandable.
This meant that respondents had not defaulted in their payments and the foreclosure by petitioner
was premature. Foreclosure is valid only when the debtor is in default in the payment of his
obligation.
V.
Redemption
A. Rules
Judicial Foreclosure and Extrajudicial Foreclosure
Mortgagor
Foreclosure
Judicial Foreclosure
Extrajudicial Foreclosure
No right of redemption; only
Right of Redemption
Natural Person
equity of redemption (not less
(1 year from registration of the
than 90 days nor more than
certificate of sale)
120 days from entry of
judgment)
Equity of Redemption
Equity of Redemption
Juridical Person
(90 days from foreclosure not
later than registration of sale)
Mortgage: Bank
Mortgagor
Judicial Foreclosure
Natural Person
Juridical Person
Foreclosure
Extrajudicial Foreclosure
Right of Redemption
Right of Redemption
Right of Redemption
Equity of Redemption
(90 days from foreclosure not
later than registration of sale)
HUERTA ALBA RESORT INC. vs. COURT OF APPEALS and SYNDICATED MANAGEMENT
GROUP INC
G.R. No. 128567, September 1, 2000
Facts:
In a complaint for judicial foreclosure of mortgage with preliminary injunction filed on
October 19, 1989, the herein private respondent sought the foreclosure of four (4) parcels of land
mortgaged by petitioner to Intercon Fund Resource, Inc. ("Intercon").
Private respondent instituted the case as mortgagee-assignee of a loan amounting to P8.5
million obtained by petitioner from Intercon, in whose favor petitioner mortgaged the aforesaid
parcels of land as security for the said loan.
In its answer below, petitioner questioned the assignment by Intercon of its mortgage right
thereover to the private respondent, on the ground that the same was ultra vires. Petitioner also
questioned during the trial the correctness of the charges and interest on the mortgage debt in
question.
On April 30, 1992, the trial court, came out with its decision granting herein private
respondent SMGI's complaint for judicial foreclosure of mortgage. Upon appeal, it was dismissed
on the ground of late payment of docket fees. Later, the decision became final and executory.
On July 4, 1994, private respondent filed with the trial court of origin a motion for execution
of the Decision promulgated on April 30, 1992 in Civil Case No. 89-5424. The said motion was
granted on July 15, 1994. Accordingly, on July 15, 1994 a writ of execution issued and, on July 20,
1994, a Notice of Levy and Execution was issued by the Sheriff concerned, who issued on August
1, 1994 a Notice of Sheriff's Sale for the auction of subject properties on September 6, 1994.
On August 23, 1994, petitioner filed with the same trial court an Urgent Motion to Quash
and Set Aside Writ of Execution ascribing to it grave abuse of discretion in issuing the questioned
Writ of Execution. To support its motion, petitioner invited attention and argued that the records of
the case were still with the Court of Appeals and therefore, issuance of the writ of execution was
premature since the 150-day period for petitioner to pay the judgment obligation had not yet lapsed
and petitioner had not yet defaulted in the payment thereof since no demand for its payment was
made by the private respondent. In petitioner's own words, the dispute between the parties was
"principally on the issue as to when the 150-day period within which Huerta Alba may exercise its
equity of redemption should be counted."
Issue:
Whether or not the petitioner has the one-year right of redemption of subject properties
under Section 78 of Republic Act No. 337 otherwise known as the General Banking Act.
SC Ruling:
No. The petitioner can no longer invoke Section 78 of Republic Act No. 337 because it failed to
seasonably invoke the said provision.
On the distinction between the equity of redemption and right of redemption, the case of
Gregorio Y. Limpin vs. Intermediate Appellate Court, comes to the fore. Held the Court in the said
case:
"The equity of redemption is, to be sure, different from and should not be confused with the right of
redemption.
The right of redemption in relation to a mortgage understood in the sense of a prerogative
to re-acquire mortgaged property after registration of the foreclosure sale exists only in the case of
the extrajudicial foreclosure of the mortgage. No such right is recognized in a judicial foreclosure
except only where the mortgagee is the Philippine National Bank or a bank or banking institution.
Where a mortgage is foreclosed extrajudicially, Act 3135 grants to the mortgagor the right of
redemption within one (1) year from the registration of the sheriff's certificate of foreclosure sale.
Where the foreclosure is judicially effected, however, no equivalent right of redemption
exists. The law declares that a judicial foreclosure sale 'when confirmed be an order of the court. . . .
shall operate to divest the rights of all the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be allowed by law.' Such rights exceptionally
'allowed by law' (i.e., even after confirmation by an order of the court) are those granted by the
charter of the Philippine National Bank (Acts No. 2747 and 2938), and the General Banking Act
(R.A. 337). These laws confer on the mortgagor, his successors in interest or any judgment creditor
of the mortgagor, the right to redeem the property sold on foreclosure after confirmation by the
court of the foreclosure sale which right may be exercised within a period of one (1) year,
counted from the date of registration of the certificate of sale in the Registry of Property.
But, to repeat, no such right of redemption exists in case of judicial foreclosure of a
mortgage if the mortgagee is not the PNB or a bank or banking institution. In such a case, the
foreclosure sale, 'when confirmed by an order of the court. . . shall operate to divest the rights of all
the parties to the action and to vest their rights in the purchaser.' There then exists only what is
known as the equity of redemption. This is simply the right of the defendant mortgagor to
extinguish the mortgage and retain ownership of the property by paying the secured debt within the
90-day period after the judgment becomes final, in accordance with Rule 68, or even after the
foreclosure sale but prior to its confirmation.
BANCO FILIPINO SSAVINGS AND MORTGAGE BANK vs. COURT OF APPEALS and
SANTIAGO (Isabela) MEMORIAL PARK, INC.
G.R. No. 143896, July 8, 2005
Facts:
On December 20, 1993, private respondent Santiago (Isabela) Memorial Park, Inc. filed a
complaint for redemption and specific performance with the Regional Trial Court of Santiago,
Isabela, Branch 21, against herein petitioner Banco Filipino Savings & Mortgage Bank., the
material and relevant allegations of which read as follows:
COMPLAINT
Plaintiff, by counsel, to this Honorable Court most respectfully alleges:
1. .
2. .
3. That in February 1981, plaintiff mortgaged the above described property in favor of defendant to
secure a loan of P500,000.00 obtained by plaintiff from defendant;
4. That due to the failure of plaintiff to pay the aforementioned loan, defendant foreclosed the
mortgage and in consequence thereof Sheriff David R. Medina of this Honorable Court issued a
SHERIFF'S CERTIFICATE OF SALE in favor of defendant which is dated October 9, 1990 and
which instrument was inscribed at the back of TCT T-128647 of Isabela on January 21, 1991;
5. That in a letter of the President of plaintiff dated August 6, 1991, plaintiff made manifest its
interest to exercise its right of redemption and made an offer of P700,000.00 as redemption to
defendant through the then Deputy Liquidator, ROSAURO NAPA; this started the negotiation for
the redemption of the above described property;
6. That in a letter of the Deputy Liquidator dated January 23, 1992, plaintiff was given up to the end
of March 1992 to negotiate and make special arrangement for any satisfactory plan of payment for
the redemption;
7. That in a letter of the Deputy Liquidator dated March 12, 1992, plaintiff was directed to remit at
least P50,000.00 to defendant which would manifest the interest and willingness of plaintiff to
redeem the property, and forthwith on March 24, 1992, plaintiff remitted the sum of P50,000.00 to
defendant which was duly receipted by the latter under Official Receipt No. 279968 A dated March
24, 1992;
8. That in a letter of the President of plaintiff dated January 20, 1993, plaintiff amended its first
offer and made an offer of P1,000,000.00 as redemption which offer included a plan of payment;
9. That between January 20, 1993 to November 1993, plaintiff exerted earnest efforts in order to
finally effect the redemption, but defendant dilly dallied on the matter.
10. That in a letter of Atty. ORLANDO O. SAMSON, Senior Vice President of defendant, dated
November 5, 1993, there is a turn-around by defendant and is now demanding P5,830,000.00 as
purchase price of the property, instead of the original agreed redemption;
11. That the delay of the defendant in the finalization of the terms of redemption did not in any
manner alter the right of plaintiff to redeem the property from defendant;
12. That plaintiff is still in actual possession of the property and intend to remain in actual
possession of the property, while defendant was never in actual possession of said property;
13. That plaintiff is ready and willing to pay the redemption money, which is the total bank claim of
P925,448.17 plus lawful interest and other allowable expenses incident to the foreclosure
proceedings:
14. That the latest actuations of defendant are indicative of the refusal of defendant to allow the
exercise of redemption by herein plaintiff, reason for which there is a need for judicial
determination of the rights and obligations of the parties to this case;
15. That on account of the unlawful actuations of defendant in refusing the redemption of the
property by plaintiff, the latter engaged the services of counsel for a fee of P30,000.00 which
defendant should pay to plaintiff.
Issue:
Whether private respondent's complaint for redemption and specific performance states a
cause of action against petitioner.
SC Ruling:
Based on the allegations in the complaint, we find that private respondent has no cause of
action for redemption against petitioner.
Paragraph 4 of the complaint states:
4. That due to the failure of plaintiff to pay the aforementioned loan, defendant foreclosed the
mortgage and in consequence thereof Sheriff David R. Medina of this Honorable Court issued a
SHERIFF'S CERTIFICATE OF SALE in favor of defendant which is dated October 9, 1990 and
which instrument was inscribed at the back of TCT T-128647 of Isabela on January 21, 1991;
The sheriff's certificate of sale was registered on January 21, 1991. Section 6 of Act 3135 provides
for the requisites for a valid redemption, thus:
SEC. 6. In all cases in which an extrajudicial sale is made under the special power hereinbefore
referred to, the debtor, his successors in interest or any judicial creditor or judgment creditor of said
debtor, or any person having a lien on the property subsequent to the mortgage or deed of trust
under which the property is sold, may redeem the same at any time within the term of one year from
and after the date of sale; and such redemption shall be governed by the provisions of sections four
hundred and sixty-four to four hundred and sixty-six, inclusive, of the Code of Civil Procedure,
insofar as these are not inconsistent with the provisions of this Act.
However, considering that petitioner is a banking institution, the determination of the
redemption price is governed by Section 78 of the General Banking Act which provides:
In the event of foreclosure, whether judicially or extrajudicially, of any mortgage on real
estate which is security for any loan granted before the passage of this Act or under the provisions
of this Act, the mortgagor or debtor whose real property has been sold at public auction, judicially
or extrajudicially, for the full or partial payment of an obligation to any bank, banking or credit
institution, within the purview of this Act shall have the right, within one year after the sale of the
real estate as a result of the foreclosure of the respective mortgage, to redeem the property by
paying the amount fixed by the court in the order of execution, or the amount due under the
mortgage deed, as the case may be, with interest thereon at the rate specified in the mortgage, and
all the costs, and judicial and other expenses incurred by the bank or institution concerned by reason
of the execution and sale and as a result of the custody of said property less the income received
from the property.
Clearly, the right of redemption should be exercised within the specified time limit, which is
one year from the date of registration of the certificate of sale. The redemptioner should make an
actual tender in good faith of the full amount of the purchase price as provided above, i.e., the
amount fixed by the court in the order of execution or the amount due under the mortgage deed, as
the case may be, with interest thereon at the rate specified in the mortgage, and all the costs, and
judicial and other expenses incurred by the bank or institution concerned by reason of the execution
and sale and as a result of the custody of said property less the income received from the property.
In case of disagreement over the redemption price, the redemptioner may preserve his right
of redemption through judicial action which in every case must be filed within the one-year period
of redemption. The filing of the court action to enforce redemption, being equivalent to a formal
offer to redeem, would have the effect of preserving his redemptive rights and 'freezing the
expiration of the one-year period. In this case, the period of redemption expired on January 21,
1992. The complaint was filed on December 20, 1992.
Moreover, while the complaint alleges that private respondent made an offer to redeem the
subject property on August 6, 1991, which was within the period of redemption, it is not alleged in
the complaint that there was an actual tender of payment of the redemption price as required by the
rules. It was alleged that private respondent merely made an offer of P700,000.00 as redemption
price, which however, as stated under paragraph 13 of the same complaint, the redemption money
was the total bank claim of P925,448.17 plus lawful interest and other allowable expenses incident
to the foreclosure proceedings. Thus, the offer was even very much lower than the price paid by
petitioner as the highest bidder in the auction sale.
In BPI Family Savings Bank, Inc. vs. Veloso , we held that the general rule in redemption is
that it is not sufficient that a person offering to redeem manifests his desire to do so. The statement
of intention must be accompanied by an actual and simultaneous tender of payment. This constitutes
the exercise of the right to repurchase.
C. What is to be paid
was conjugal partnership property. This resulted in a compromise agreement to the effect that the
levy shall be valid only to the extent of the share pertaining to Alfonso Roxas Chua. After the
execution sale, a certificate of sale was executed in favor of Metrobank, the judgment creditor, and
the same was annotated on TCT No. 410603 on December 22, 1987.
Meanwhile, China Banking Corporation filed a complaint for sum of money against Pacific
Multi Agro-Industrial Corporation and Alfonso Roxas Chua. On November 7, 1985, judgment was
rendered ordering defendants to pay Chinabank the aggregate amount of P2,500,000.00 plus
interests, penalties and attorneys fees. Defendants appealed to the Court of Appeals but the same
was dismissed for failure to file appellants brief. Thus, notice of levy on execution was issued on
February 4, 1991 against the right and interest of Alfonso Roxas Chua in the residential land (TCT
No. 410603). The same was later sold at public auction and a certificate of sale was executed in
favor of Chinabank, and inscribed on TCT 410603 on May 4, 1992.
Previously, however, on November 21, 1988, Alfonso Roxas Chua executed in favor of his
son, Paulino Roxas Chua, an "Assignment of Right to Redeem," pertaining to his right to redeem
the undivided portion of the land sold to Metrobank. On January 11, 1989, Paulino redeemed the
property from Metrobank. On March 14, 1989, the Assignment of Right to Redeem and the
redemption by Paulino Roxas Chua of the property from Metrobank were annotated on TCT No.
410603.
Private respondents Paulino Roxas Chua and Kiang Ming Chu Chua filed a case, alleging
that Paulino has a prior and better right over Chinabank inasmuch as the assignment to him of the
right to redeem and his redemption of Alfonsos share in the property were inscribed on the title on
an earlier date than the annotation of the notice of levy and certificate of sale in favor of Chinabank.
Both the trial court and the Court of Appeals ruled in favor of private respondents and enjoined
Chinabank, the Sheriff of Manila and the Register of Deeds of San Juan from causing the transfer of
possession, ownership and certificate of title, or otherwise disposing of the property covered by
TCT No. 410603 in favor of Chinabank or any other person.
Issue:
Whether or not the conveyance of the property in question to Paulino Roxas Chua was done
for valuable consideration and in good faith.
SC Ruling:
Yes, it was done for value and in good faith.
Article 1387 of the Civil Code provides that alienations made by a debtor by gratuitous title
are presumed fraudulent when the donor did not reserve sufficient property to pay his outstanding
debts. Likewise, alienations by onerous title are presumed fraudulent when made by persons against
whom some judgment has been rendered or some writ of attachment has been issued. These,
however, are mere presumptions which are in no way conclusive. The presumption of fraud can be
overthrown by evidence showing that the conveyance was made in good faith and for a sufficient
and valuable consideration.
In the case at bar, private respondents sufficiently established that the conveyance was
made in good faith and for valuable consideration. Paulino maintains that he had no knowledge of
his father Alfonsos financial problem with petitioner Chinabank until he was about to cause the
cancellation of TCT No. 410603. Furthermore, he paid the sum of P100,000.00 to Alfonso for the
right to redeem, and paid the redemption amount of P1,463,375.39 to Metrobank.
Expectedly, petitioner refutes these, saying that the amounts paid by Paulino were grossly
disproportionate to the right to redeem the property, which is a residential house and lot located in
North Greenhills, San Juan, Metro Manila. But as correctly pointed out by private respondents, the
amount of P100,000.00 paid by Paulino to Alfonso was not for the property itself, but merely for the
right to redeem the same. As a matter of fact, Paulino still had to pay Metrobank the redemption
price of P1,463,375.39. Whether or not the latter amount was adequate is beyond the scope of this
inquiry. Suffice it to state that Metrobank accepted the same and reconveyed the property to
Paulino. Moreover, only Alfonsos conjugal share in the property was affected, and the
determination of its value was still subject to liquidation of debts and charges against the conjugal
partnership.
Effect of tender of less than purchase price
BPI FAMILY SAVINGS BANK, INC vs. SPS. JANUARIO ANTONIO VELOSO AND NATIVIDAD
VELOSO
G.R. No. 141974, August 9, 2004
Facts:
On January 8, 1983, respondent spouses obtained a loan of P1,300,000 from
petitioners predecessor-in-interest Family Bank and Trust Company. To secure
payment of the loan, respondent spouses executed in favor of the bank a deed of
mortgage over three parcels of land, with improvements, registered in their names
under TCT Nos. 272227, 272228 and 272229 of the Registry of Deeds of Quezon City.
On February 9, 1983, respondents, for value received, executed a promissory
note for P1,300,000. Subsequently, however, respondents defaulted in the monthly
installments due on their loan. When efforts to update the account failed, Family Bank
instituted extra-judicial foreclosure proceedings on the respondents mortgaged
properties.
On July 1, 1985, the properties were sold at public auction with Family Bank as
the highest bidder for P2,782,554.66. On August 5, 1985, Family Bank assigned all its
rights and interests in the foreclosed properties to petitioner BPI Family Bank, Inc.
(BPI). On August 28, 1985, the sheriffs certificate of sale was registered with the
Registry of Deeds of Quezon City.
On July 24, 1986, respondents, through counsel, wrote BPI offering to redeem
the foreclosed properties for P1,872,935. This was, however, rejected by petitioner.
On August 27, 1986, respondents filed in the RTC of Quezon City, Branch 94, a
complaint for annulment of foreclosure, with consignation and prayer for damages. On
motion of respondents, the trial court, in an order dated August 27, 1986, allowed
respondents to deposit with the clerk of court the sum of P1,500,000 representing the
redemption price. Thereafter, trial on the merits ensued.
Issue:
Did respondent spouses comply with all the requirements for the redemption of the
subject properties?
SC Ruling:
We answer in the negative.
The general rule in redemption is that it is not sufficient that a person offering to
redeem manifests his desire to do so. The statement of intention must be
accompanied by an actual and simultaneous tender of payment. This constitutes the
exercise of the right to repurchase.
In several cases decided by the Court where the right to repurchase was held to
have been properly exercised, there was an unequivocal tender of payment for the full
amount of the repurchase price. Otherwise, the offer to redeem is ineffectual. Bona
fide redemption necessarily implies a reasonable and valid tender of the entire
repurchase price, otherwise the rule on the redemption period fixed by law can easily
be circumvented.
Consequently, in this case, the offer by respondents on July 24, 1986 to redeem
the foreclosed properties for P1,872,935 and the subsequent consignation in court of
P1,500,000 on August 27, 1986, while made within the period of redemption, was
ineffective since the amount offered and actually consigned not only did not include
the interest but was in fact also way below the P2,782,554.66 paid by the highest
bidder/purchaser of the properties during the auction sale.
In Bodiongan vs. Court of Appeals, we held:
In order to effect a redemption, the judgment debtor must pay the purchaser
the redemption price composed of the following: (1) the price which the
purchaser paid for the property; (2) interest of 1% per month on the purchase
price; (3) the amount of any assessments or taxes which the purchaser may
have paid on the property after the purchase; and (4) interest of 1% per month
on such assessments and taxes x x x.
Furthermore, Article 1616 of the Civil Code of the Philippines provides:
The vendor cannot avail himself of the right to repurchase without returning to
the vendee the price of the sale x x x.
It is not difficult to understand why the redemption price should either be fully
b. Differences
antichresis gives a right to the fruits
antichresis is perfected even without delivery
II. Elements
A. Parties
-
The contract of antichresis may be established by one having the right to encumber property.
B. Object
-
C. Causa
-
D. Formalities
-
The amount of the principal and the interest must be specified in writing; otherwise the contract is void.
It must be in a public instrument to affect third persons or recorded if the property involved is registered.
III. Effects
A. Rights of the antichretic creditor
a. To receive the fruits, applying them at their actual value, as of the time of the application to the interest
and the to the capital (art. 2132)
Parties may stipulate that the interest be compensated by the fruits, provided that if the value of the fruits
exceed the interest allowed by the usury law the excess shall apply to the capital.
A provision in the contract that the full amount of the indebtedness must be returned to the lenders before
the borrowers could demand the return of the property is contrary to an antichretic contract wherein the
products of the land should be applied to the interest and then to the principal.
b.
Right of foreclosure:
the creditor does not acquire ownership of the immovable for non-payment of the
debt.
A contrary stipulation is void.
The creditor may ask the court for the sale of the property, subject to the foreclosure of mortgages.
b. To pay taxes
1. Reason
-
Otherwise the debtor could deprive the creditor of the security by not paying taxes and causing
forfeiture.
2. Exception
-
3. Effect of non-fulfillment
-
Case:
Diego vs. Fernando
109 Phil. 143, August 25, 1960
Facts:
Defendant Fernando executed a deed of mortgage in favor of the plaintiff over two parcels of land to secure a loan of two thousand without
interest payable within four years. The possession of the mortgaged properties was turned over to the mortgagee. The defendant having failed to pay the
loan after four years, the plain tiff made several demands for payment which were unheeded.
Plaintiff filed this action for foreclosure of mortgage. Defendant argues that the true transaction was one of antichresis, and that as plaintiff has
received several cavans of palay, from the mortgaged properties, valued at P5,200, his debt has already been paid. The trial court found the transaction to
be a mortgage, and possession of the mortgagee of the properties did not alter the transaction. Defendant appealed.
Issue:
Whether or not the contract is one of mortgage or antichresis.
SC Ruling:
ooOoo
CHATTEL MORTGAGE
Articles 2140 2141
I. Concept
Art. 2140: by a chattel mortgage, personal property is recorded in the Chattel Mortgage Register as a security for
the performance of an obligation. If the movable, instead of being recorded, is delivered to the creditor or a third
person, the contract is a pledge and not a chattel mortgage.
Case:
Acme Shoe, Rubber and Plastic Corp. vs. CA
260 SCRA 714, August 22, 1996
Facts:
Petitioner contracted a three million peso loan from Producers Bank secured by a chattel mortgage. A provision of the chattel mortgage
agreement was to the effectIn case the MORTGAGOR executes subsequent promissory note or notes either as a renewal of
the former note, as an extension
thereof, or as a new loan, or is given any other kind of
accommodation such as overdrafts, letters of credit, acceptances and bills of exchange, releases
of import shipments on Trust receipt etc. this mortgage shall also stand as a security for the payment of the said promissory note or notes or
accommodations without the necessity of executing a new contract and this mortgage shall have the same force and effect as if the said
promissory note
or notes accommodations were existing on the date thereof. This mortgage
shall also stand as security for said obligations and any and all other
obligations of the MORTGAGOR to the MORTGAGEE of whatever kind and nature, whether such obligations have been contracted before, during or after
the constitution of this mortgage
Petitioner obtained from the bank additional financial accommodations. These borrowing were on due date also fully paid. Later, the bank yet again
extended to petitioner loan of one million pesos covered by four promissory notes. Due to financial constraints, the loan was not settled at maturity.
Respondent bank thereupon initiated foreclosure proceeding. Ultimately, the court ordered the foreclosure of the chattel mortgage. It held petitioner bound
by the stipulations aforequoted, of the chattel mortgage.
SC Ruling:
Contracts of security are either personal or real. In contracts of personal security, such as guaranty or a suretyship, the faithful performance of
the obligation by the principal debtor is secured by the personal commitment of another. In contracts of real security, such as pledge, mortgage, or
antichresis, that fulfillment is secured by an encumbrance of the property-in pledge, the placing of movable property in the possession of the creditor in
chattel mortgage, by execution of the corresponding deed substantially in the form prescribed by law; in real estate mortgage, by the execution of a public
instrument encumbering the real property covered thereby; and in atechresis, by a written instrument granting to the creditor the right to receive the fruits of
an immovable property with the obligation to apply such fruits to the payment of interest, if owing and thereafter to the principal of his credit-upon the
essential condition that if the principal obligation becomes due and the debtor defaults, then the property encumbered can be alienated for the payment of
the obligation, but that should the obligation be fully paid, then the contract is automatically extinguished proceeding from the accessory character of the
agreement. As the law so puts it, once the obligation is complied with, then the contract of security becomes ipso facto null and void.
While a pledge, real estate mortgage, or antichresis may exceptionally secure after-incurred obligation so long as these future debts are
accurately described, a chattel mortgage however, can only cover obligations existing at the time the mortgage is constituted. Although a promise
expressed in the chattel mortgage to include debts that are yet to be contracted can be a binding commitment that can be compelled upon, the security
itself, however, does not come into existenceor arise until after a chattel mortgage agreement covering the newly contracted debt is executed either by
concluding a fresh chattel mortgageor by amending the old contract conformably with the form prescribed by the Chattel Mortgage Law. Refusal on the part
of the borrower to execute the agreement so as to cover the after-incurred obligation can constitute as an act of default on the part of the borrower of the
financing agreement wherein the promise is written, but of course the remedy of foreclosure can only cover the debts extant at the time of constitution and
during the life of the chattel mortgage sought to be foreclosed.
The significance of the ruling to the instant problem would be that since the 1978 chattel mortgage has ceased to exist coincidentally with the
full payment of the P3,000,000.00 loan., there no longer was any chattel mortgage that could cover the new loans that were concluded thereafter.
B. Elements
A. Parties
-
B. Object
-
Interest in a business
Ungathered crops
Vessels
Certificates of stocks
Large cattle
Stock in trade
A chattel mortgage over immovables is void.
Exception: if the parties agree on constituting the chattel mortgage over an immovable, but it will
not bind third parties.
Cases:
Manarang vs. Ofilada
99 Phil.108, May 18, 1956
Facts:
Manarang obtained a 200 loan from Esteban and to secure payment she executed a chattel mortagage over a house of mixed materials. For
non-payment of the loan, judgment was rendered against Manarang and execution was issued against the property mortgaged. Before the property could
be sold, Manarang offered to pay the amount of the judgment with interest but refused to pay the publication expenses of the notice of sale in the two
newspapers.
SC Ruling:
There can be no question that a building of mixed materials may be subject of a chattel mortgage, in which case it is considered as between the
parties a personal property. But this does not make this house a personal property for the purpose of the notice to be given for its sale at public auction.
Sales on execution affect the public and third persons. The regulations governing sales on execution are for public officials to follow. The form of the
proceedings prescribed for each kind of property is suited to its character, not to the character which the parties have given to it or desire to give it.
ooOoo
TUMALAD V. VICENCIO
41 SCRA 143
Facts:
Vicencio and Simeon executed a chattel mortgage in favor of plaintiffs Tumalad over their house, which was being rented by
and company.
This was executed to guarantee a loan, payable in one year with a 12% per annum interest.
The mortgage was extrajudicially foreclosed upon failure to pay the loan. The house was sold at a public auction and the plaintiffs were the
highest bidder. A corresponding certificate of sale was issued. Thereafter, the plaintiffs filed an action for ejectment against the defendants,
praying that the latter vacate the house as they were the proper owners.
Madrigal
SC Ruling:
Certain deviations have been allowed from the general doctrine that buildings are immovable property such as when through stipulation,
parties may agree to treat as personal property those by their nature would be real property. This is partly based on the principle of estoppel
wherein the principle is predicated on statements by the owner declaring his house as chattel, a conduct that may conceivably stop him from subsequently
claiming otherwise.
In the case at bar, though there be no specific statement referring to the subject house as personal property, yet by ceding, selling or
transferring a property through chattel mortgage could only have meant that defendant conveys the house as chattel, or at least, intended to treat
the same as such, so that they should not now be allowed to make an inconsistent stand by claiming otherwise.
ooOoo
Makati Leasing and Finance Corp. vs. Wearever Textile Mills, Inc.
122 SCRA 296, May 16, 1983
Facts:
In order to obtain financial accommodations from herein petitioner Makati Leasing and Finance Corporation, the private respondent Wearever
Textile Mills, Inc. discounted and assigned several receivables with the former under a Receivable Purchase Agreement. To secure the collection of the
receivables assigned, private respondent executed a chattel mortgage over certain raw materials inventory as well as machinery described as an Artos
Aero Dryer Stentering Range.
SC Ruling:
If a house of strong materials, like what was involved in Tumald vs. Vicencio 41 SCRA 143, may be considered as personal property for
purposes of executing a chattel mortgage thereon as long as the parties to the contract so agree and no innocent third party will be prejudiced thereby there
is absolutely no reason why a machinery, which is movable in its nature and becomes immobilized only by destination or purpose, may not be likewise
treated as such. This is really because one who has agreed is stopped from denying the existence of the chattel mortgage.
In rejecting petitioners assertion on the applicability of the Tumalad doctrine, the Court of Appeals lay stress on the fact that the house involved
therein was built on a land that did not belong to the owner of such house. But the law makes no distinction with respect to the ownership of the land on
which the house is built and we should not lay down distinction not contemplated by law.
It must be pointed out that the characterization of the subject machinery as chattel by the private respondent is indicative of intention and
impress upon the property the character determined by the parties. As stated in Standard Oil Co. of New York vs. Jaramillo, 44 Phil. 630, it is undeniable
that the parties to a contract may by agreement treat as personal property that which by nature would be real property as long as no interest of third parties
would be prejudiced.
C. Causa
-
D. Form
a. To bind the parties
The instrument need only conform substantially to that form contained in section 5 of Act No. 1508. (it
must be in a public document)
SECTION 5. Form. A chattel mortgage shall be deemed to be sufficient when made substantially in
accordance with the following form, and shall be signed by the person or persons executing the same, in the
presence of two witnesses, who shall sign the mortgage as witnesses to the execution thereof, and each
mortgagor and mortgagee, or, in the absence of the mortgagee, his agent or attorney, shall make and
subscribe an affidavit in substance as hereinafter set forth, which affidavit, signed by the parties to the
mortgage as above stated, and the certificate of the oath signed by the authority administering the same, shall
be appended to such mortgage and recorded therewith.
-
2. Description of Property
Cases:
SALDAA VS. PHIL.GUARANTY CO.
Facts:
Eleazar executed in favor of Saldaa, a chattel mortgage, the lat paragraph of which states: and all other furnitures, fixtures, or equipment
SC Ruling:
There is merit in appellants contention. Section 7 of the Chattel Mortgage Law does not demand a minute and specific description of every
chattel mortgaged in the deed of mortgage but only requires that the description of the properties be such as to enable the parties in the mortgage or any
other person, after reasonable inquiry and investigation to identify the same. Gauged by this standard, general descriptions have been held valid by this
court. The specification in the last paragraph of the deed in the instant case is in substantial compliance with the reasonable description rule fixed by the
Chattel Mortgage Law.
The limitation found in Section 7, last paragraph, of the Chattel Mortgage Law on like or substituted properties makes reference to those
thereafter acquired by the mortgagor and placed in the same depositary as the property originally mortgaged not to those already existing and originally
included at the date of the constitution of the chattel mortgage. A contrary view would unduly impose a more rigid condition that the law prescribes which is,
that the description be only such as to enable identification after reasonable inquiry and investigation.
Orders set aside.
3. Registration
i. Place
located.
General Rule: the registries of the place where the mortgagor resides and where the property is
Except that of vessels must be registered in the office of the collector of customs of the port of
entry.
Mortgage of shares of stock must be registered in the province where the corporation has its
principal place of business.
A mortgage over an automobile, in order to affect third persons, should be registered not only in
the Chattel Mortgage Registry but also in the Motor Vehicles Office. The mortgagees failure to
annotate the mortgage in the said office renders it ineffective against a purchaser who registers
the sale in the Motors Vehicles Office.
C. Effect of Mortgage
A. What it covers
-
The mortgage covers only the property described in the contract and excludes like or substituted property
thereafter acquired, anything in the contract to the contrary notwithstanding.
a. Exception
-
or
D. Discharge of Mortgage
A. Requisites
-
within ten (10) days the mortgagee is liable to pay twenty pesos (P20.00)
The mortgagor;
Subsequent mortgagees;
Subsequent attaching creditors.
C. Effects of Redemption
-
F. Foreclosure
A. Kinds
a. Judicial
b. Extra-judicial
1.
REQUISITES:
i.
Sale at public auction thirty days after the debtors default (if the debtor refuses to surrender the
chattel, action must be brought for its delivery).
ii. Notice of sale to be posted in two (2) public places ten (10) days before the sale, and notice likewise to
be given to the mortgagor in writing, personally or by mail.
iii. Conducted by a public officer (sheriff).
iv. Conducted in the municipality where the mortgagor resides OR where the property is located.
EXCEPT: when some other place is stipulated.
DISPOSITION OF PROCEEDS:
i.
Application:
a) Costs and expenses of sale;
b) The principal obligation and interest;
c) Claims of subsequent mortgagees;
d) The balance, if any, to the mortgagor.
ii. In case of deficiency:
a) The mortgagee may still recover the deficiency from the mortgagor.
Case:
PAMECA WOOD TREATMENT PLANT, Inc. VS. CA
Facts:
On April 17, 1980, petitioner PAMECA Wood Treatment Plant, Inc. (PAMECA) obtained a loan of US$267,881.67, or the equivalent of
P2,000,000.00 from respondent Bank. By virtue of this loan, petitioner PAMECA, through its President, petitioner Herminio C. Teves, executed a
promissory note for the said amount, promising to pay the loan by installment. As security for the said loan, a chattel mortgage was also executed over
PAMECAs properties in Dumaguete City, consisting of inventories, furniture and equipment, to cover the whole value of the loan.
On January 18, 1984, and upon petitioner PAMECAs failure to pay, respondent bank extrajudicially foreclosed the chattel mortgage, and, as
sole bidder in the public auction, purchased the foreclosed properties for a sum of P322,350.00. On June 29, 1984, respondent bank filed a complaint for
the collection of the balance of P4,366,332.46 with Branch 132 of the Regional Trial Court of Makati City against petitioner PAMECA and private petitioners
herein, as solidary debtors with PAMECA under the promissory note.
RTC of Makati rendered a decision ordering the defendants to pay jointly and severally plaintiff the (1) sum of P4,366,332.46 representing the
deficiency claim of the latter as of March 31, 1984, plus 21% interest per annum and other charges from April 1, 1984 until the whole amount is fully paid
and (2) the costs of the suit.
The Court of Appeals affirmed the RTC decision. Hence, this appeal.
Issue:
W-O-N the mortgagor is liable to the mortgagee for the deficiency.
SC Ruling:
Section 14 of the Chattel Mortgage Law provides that the mortgagor is entitle to the balance of the proceeds, upon satisfaction of the principal
obligation and costs. Section 14 provides that:
x x x The proceeds of such sale shall be applied to the payment, first, of the costs and expenses of keeping and sale, and then to
the payment of the demand or obligation secured by such mortgage, and the residue shall be paid to persons holding subsequent mortgages in
their order, and the balance, after paying the mortgage, shall be paid to the mortgagor or persons holding under him on demand.
Since the Chattel Mortgage Law bars the creditor-mortgagee from retaining the excess of the sale proceeds there is a corollary obligation,
therefore, on the part of the debtor-mortgager to pay the deficiency in case of a reduction in the price at public auction.
As explained in Manila Trading and Supply Co. vs. Tamaraw Plantation Co., cited in Ablaza vs. Ignacio, supra:
While it is true that section 3 of Act No. 1508 provides that a chattel mortgage is a conditional sale, it further provides that it is a
conditional sale of personal property as security for the payment of a debt, or for the performance of some other obligation specified therein.
The lower court overlooked the fact that the chattels included in the chattel mortgage are only given as security and not as a payment of the
debt, in case of a failure of payment.
The theory of the lower court would lead to the absurd conclusion that if the chattels mentioned in the mortgage, given as security,
should sell for more than the amount of the indebtedness secured, that the creditor would be entitled to the full amount for which it might be
sold, even though that amount was greatly in excess of the indebtedness. Such a result certainly was not contemplated by the legislature when
it adopted Act No. 1508. There seems to be no reason supporting that theory under the provision of the law. The value of the chattels changes
greatly from time to time, and sometimes very rapidly. If, for example, the chattels should greatly increase in value and a sale under that
condition should result in largely overpaying the indebtedness, and if the creditor is not permitted to retain the excess, then the same token
would require the debtor to pay the deficiency in case of a reduction in the price of the chattels between the date of the contract and a breach of
the condition.
We find no reason to disturb the ruling in Ablaza vs. Ignacio, and the cases reiterating it. Thus, petition is DENIED.
iii.
B. Right of Redemption
Case: Please refer to Paray vs. Rodriguez (cited in Pledge)
G. Distinctions
PLEDGE
a.
b.
As to OBJECT
On movables
CHATTEL
MORTGAGE
On movables
As to
POSSESSION
By the creditor
By the debtor
By the debtor
By the creditor
c.
As to
PERFECTION
Real Contract
Formal Contract
Formal Contract
Formal contract
d.
As to FORM to
bind Third
Persons
Public instrument
containing
description of the
thing pledged and
the date thereof
Recorded public
instrument
ooOoo
REAL ESTATE
MORTGAGE
On immovables
On immovables
Recorded public
instrument
ANTICHRESIS
Recorded public
instrument
Possession by two or more creditors of equal rights or privileges over the same property or all of the property of
the debtor.
B. Preference
-
Right held by a creditor to be preferred in the payment of his claim above others out of the debtors assets.
The rules apply when two or more creditors have separate and distinct claims against the same debtor who has
insufficient property.
d.
e.
f.
g.
Duties, taxes and fees due thereon to the State or any subdivision thereof
With reference to specific movable and immovable property of the debtor, the taxes due the State shall first be
satisfied.
Claims arising from misappropriation, breach of trust, or malfeasance by public officials committed
in the performance of their duties, on the movables, money or securities obtained by them
Claims for the unpaid price of movables sold, on said movables, so long as they are in the
possession of the debtor, up to the value of the same; and if the movable has been resold by the
debtor and the price is still unpaid, the lien may be enforced on the price; this right is not lost by
the immobilization of the thing by destination, provided it has not lost its form, substance and
identity; neither is the right lost by the sale of the thing together with other property for a lump
sum, when the price thereof can be determined proportionally
Credits guaranteed with a pledge so long as the things pledged are in the hands of the creditor, or
those guaranteed by a chattel mortgage, upon the things pledged or mortgaged, up to the value
thereof
Reflectionary Credits
Indebtedness incurred in the repair or reconstruction of something previously made, such repair or
reconstruction being made necessary by the deterioration or destruction of the thing as it formerly existed.
Claims for laborers' wages, on the goods manufactured or the work done
WORKER PREFERENCE IN CASE OF BANKRUPTCY. The law protects workers in case of bankruptcy or insolvency
of the employer. This protection is established in Art. 110 of the Labor Code creating a "worker preference" in
such an unlimited period, aid covers not merely unpaid wages, but other monetary claims as well.
D.
E.
In the foregoing cases (above), if the movables to which the lien or preference attaches have been wrongfully
taken, the creditor may demand them from any possessor, within thirty days from the unlawful seizure.
The claims or credits enumerated in the articles 2241 and 2241 shall be considered as mortgages or pledges of
real or personal property, or liens within the purview of legal provisions governing insolvency. Taxes mentioned
in No. 1, Article 2241, and No. 1, Article 2242, shall first be satisfied.
As to specific immovable property (Art 2242)
The following claims, mortgages and liens shall be preferred, and shall constitute an encumbrance on the
immovable or real right:
(1) Taxes due upon the land or building;
(2) For the unpaid price of real property sold, upon the immovable sold;
(3) Claims of laborers, masons, mechanics and other workmen, as well as of architects, engineers and contractors,
engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals
or other works;
(4) Claims of furnishers of materials used in the construction, reconstruction, or repair of buildings, canals or other
works, upon said buildings, canals or other works;
(5) Mortgage credits recorded in the Registry of Property, upon the real estate mortgaged;
(6) Expenses for the preservation or improvement of real property when the law authorizes reimbursement, upon
the immovable preserved or improved;
(7) Credits annotated in the Registry of Property, in virtue of a judicial order, by attachments or executions, upon
the property affected, and only as to later credits;
(8) Claims of co-heirs for warranty in the partition of an immovable among them, upon the real property thus
divided;
(9) Claims of donors or real property for pecuniary charges or other conditions imposed upon the donee, upon the
immovable donated;
(10) Credits of insurers, upon the property insured, for the insurance premium for two years.
Ordinary preferred credits (Art 2244)
With reference to other property, real and personal, of the debtor, the following claims or credits shall be preferred
in the order named:
(1) Proper funeral expenses for the debtor, or children under his or her parental authority who have no property of
their own, when approved by the court;
Arts. 2241 and 2242, jointly with Arts. 2246 and 2249 establish a two-tier order of preference:
1. First tier includes taxes, duties and fees due the State or any subdivision thereof, on specific movable or
immovable property (Absolutely preferred);
2. Second tier all other special preferred (non-tax) credits shall be satisfied pro-rata, out of any residual
value of the specific property to which such credits relate.
Art. 2250. 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 (Ordinary preferred credits).
d. Non-preferred credits
Art. 2251. Those credits which do not enjoy any preference with respect to specific property, and those which
enjoy preference, as to the amount not paid, shall be satisfied according to the following rules:
(1) In the order established in Article 2244;
(2) Common credits referred to in Article 2245 shall be paid pro rata regardless of dates.
Credits which do not enjoy any preference with respect to specific property because they are not among those
mentioned in Arts. 2241 and 2242 and those while included in said articles are unpaid because the value of the
property to which the preference refers is less than the preferred credit or credits, shall be satisfied in the order
established in Art. 2244 with reference to other real and/or personal property.
Common credits or those which do not fall under Arts. 2241, 2242, and 2244 do not enjoy any preference and
shall be paid pro rata regardless of dates.