Professional Documents
Culture Documents
Usufructuary (562)
BAR 2007
The parties to a bailment are:
A. bailor
B. bailee
C. comodatario
D. all of the above
E. letters a and B
Answer: E
PART ONE: Contracts of Loan
LOAN
Concept 1933
Role of delivery
1934 delivery of the subject matter is required
for perfection of the contract.
Producers vs. CA (2003 case)
FACTS: Vives was asked by his friend Sanchez to help her
friend Doronilla, in incorporating his business, the Sterela
Marketing and Services (Sterela), by depositing in a bank a
certain amount of money in the bank account of Sterela.
Angeles assured Vives that he could withdraw his money
from said account within a months time. Vives issued a check
in the amount of P200,000.00 in favor of Sterela.
Upon
learning that Sterela was no longer holding office in the
address previously given to him, Vives went to the Bank to
verify if their money was still intact. He learned that the money
in the account had been withdrawn by Doronilla, and that only
P90,000.00 remained therein.
Vives instituted an action for recovery of sum of money.
Topical Outline
Parties
Loss due to
GENERALLY: YES GENERALLY: NO,
fortuitous event
unless exceptions
Respect the
period
EXCEPTIONS:P-W-D-L
COMMODATUM
Concept
Contract where bailor delivers to bailee a nonconsumable thing so that bailee may use it for
a certain time and return the identical thing
Lease v. Commodatum
If there is consideration in money for the use of
the SM - contract is NOT commodatum but is a
contract of lease
Right to Possession of SM
Ordinary
expenses for
use and
preservation
Extraordinary
expenses not
due to his fault
while using
Extraordinary
expenses for
preservation
Not ordinary,
not
extraordinary
expenses
Bailor
Bailee
YES
YES 50%
YES 50%
The Debtor
INTEREST
ANSWER
INTEREST
BAR 2001
INTEREST
BASIS
COMMODATUM
MUTUUM
SUBJECT
MATTER
NATURE
Essentially
gratuitous
Gratuitous or onerous
PURPOSE
Qualifications of a guarantor
1. Person who possesses INTEGRITY
KIND
OFReal or personal Personal property
2. Has the CAPACITY TO BIND himself
PROPERTY
3. Has SUFFICIENT PROPERTY to answer for the
INVOLVED
obligation he guarantees (2056)
RISK OF LOSS Lender or bailorTransfer of ownership to
retains ownership borrower
Grounds for disqualification
1. Insolvency OR
TIME
OFEnd
of
periodEnd of period
2. Conviction of a crime involving dishonesty
PAYMENT
unless
urgent
need,
acts
of
NOTE: If creditor did not choose the guarantor, he may
ingratitude
or
demand a replacement guarantor (2056)
precarium
CHARACTER OFPurely personal
Not personal
If debtor chose the guarantor, the creditor can ask for a
THE CONTRACT
replacement. The creditor has a right to ask for a replacement
which he may or may not exercise.
BAR 2004
If it was the creditor who chose the guarantor, he cannot
Distinguish briefly but clearly between mutuum
ask for a replacement and must suffer the consequences
and commodatum
thereof.
PART TWO: U N S E C U R E D L O A N S
2 Kinds of Unsecured Loans
1. guaranty
2. suretyship
Differentiate this from a secured loan a secured loan
is assured of payment. If full payment is not certain, a
particular property is secured in case non-payment of such
loan.
GUARANTY
SURETY
Liability depends on
He assumes liability as a
independent agreement
regular party to the
to pay the principals
contract
obligation should he fail
to do so
Obligation is secondary
Obligation is primary
Undertaking is to pay if
Undertaking is to pay if
principal debtor cannot
principal debtor does not
pay
pay
An insurer of the
Insurer of a debt
solvency of the debtor
Entitled to excussion
No excussion
Main distinctions of guaranty & suretyship:
Extent of liability & presence or absence of excussion
Take note that in a guaranty, the principal debtor cannot
pay. This means that the principal debtor is unable to pay
for he has no assets to pay his liability. In surety, there is no
need to establish that the principal debtor cannot pay his
debt.
There can be a guaranty of:
1. A voidable contract
2. An unenforceable contract
3. A natural obligation
4. Future debts
5. Conditional obligations
Effects of guaranty
1. Between the creditor and guarantor
2. Between the debtor and guarantor
3. Between the co-guarantors
1. Between Creditor and Guarantor: BENEFIT OF
EXCUSSION
CREDITOR
DEBTOR
Exussion
If debtor did not know that there was a guarantor and the
guarantor paid the debt, the guarantor can collect only in so far
that the debtor was benefited. As such, the guarantor can only
collect the total amount of the debt.
Rights of the Guarantor Who Paid
Subrogated to all rights of the creditor
Guarantor
Exussion
Sub-Guarantor
gratuitous guaranty;
Among co-guarantors
2073
Insolvent co-guarantor
G1 pays
G2 is insolvent
G1 and G3 pay P300,000 each
CONCEPT
G1 pays
G2 is insolvent
G1, SG2 and G3 pay P200,000 each
Co-guarantor is released by creditor
If WITH consent of co-guarantors, they will bear
the share of released guarantor
If WITHOUT the consent of co-guarantors, they
will NOT bear the share of the released coguarantor
Insolvency is just one form of defense. Other forms of
defense minority, extinguished obligation.
If the obligation is extinguished, it is a defense which
can be claimed by all co-guarantors. But minority is
personal in character and can only be claimed by the minor.
EXTINGUISHMENT OF GUARANTEE
Grounds
Payment of principal obligation
No Double Pledge
of
PLEDGOR
The pledgor can still sell the thing. The pledge does not
lose
ownership over the thing. He must ask permission
from the mortgagee/pledge.
Obligations
To appropriate fruits, income, dividends or
interest of thing with those which are owing him,
and if none, to apply it to the principal (2102)
Loss or Impairment
PLEDGEE
NATURE (2089)
Rights
SUBJECT MATTER
Extinguishment of Pledge
Such
stipulation
commissorium
is
called
pactum
There is pactum
Stipulation that the thing shall be considered in
full payment of the debt without further action
(Northern Motors v. Herrera)
BAR 2004
ANSWER
BAR 1999
Capitalization P100,000
Subject Matter
Essential Requisites
Art. 2085
constituted to secure the fulfillment of a
principal obligation
pledgor is the absolute owner of the thing
Interest in business
CM in
favor of
A dated
June 1,
2000
Extrajudicial Foreclosure
CM in
favor of
B dated
July 1,
2000
Attachment by
judgment creditor C on
July 15, 2000
Replevin
subsequent mortgagees
mortgagor
Right of Redemption
Available in extrajudicial foreclosure
Right to Deficiency
Mortgagee can recover deficiency
knowingly
removing
any
personal
property mortgage under the Chattel
Mortgage Law to any province or city other
than the one where it was located at the time
of execution of mortgage without the
WRITTEN consent of the mortgagee
CM
Pledge
Registration is requiredRegistration is not required for
for validity
validity
Delivery is not essentialDelivery is essential for validity
for validity
Act No. 1508 rules theArticle 2112 governs the sale
sale
Creditor can sue forCreditor
cannot
sue
for
balance, except if salebalance
on installment (Recto
Law)
10
BAR 1999
Immovables
Alienable real rights in accordance
with the laws imposed upon immovables
Includes natural accessions, improvements,
growing fruits, rents or income not yet received
when the obligation becomes due
Includes insurance proceeds or proceeds of
expropriation for public use WHETHER THE SM IS
IN THE HANDS OF THE OWNER OR A 3RD PERSON
May include AFTER-ACQUIRED PROPERTIES
this is allowed when the real property are
perishable or subject to inevitable wear and tear.
The purpose here is to maintain the original value
of the securities given (Mendoza v. CA, June 25,
2001)
Effects of Mortgage
Creates a real right- until discharged, it follows
the property wherever it goes and subsists
notwithstanding change of ownership. If the
mortgagor sells the property , the SM remains
subject to the fulfillment of the obligation secured
by it (Bonnevie v. CA, 125 SCRA 122)
Illustration
Real mortgage in
favor of A on May
1, 2000
Sale in favor of B
June 1, 2000,
with As consent
Auction
sale
foreclosing the RM of
A, with C as the
highest bidder
11
Effects of Mortgage
Creates merely an encumbrance it does
involve the transfer, cession or conveyance of
property but only constitutes a lien. What is
lost is the free disposal and sale of the SM
(Medida v. CA, 208 SCRA 887)
It merely creates an encumbrance. The owner still has
the right to freely dispose the property for such right is not
curtailed.
BAR 1999
EXTRAJUDICIAL FORECLOSURE
File application with executive judge who has
jurisdiction over the property, through Clerk of Court
Redemption
Equity of Redemption
Right of Redemption
EQUITY OF REDEMPTION
General Rule: Only in judicial foreclosure 90120 days from receipt of judgment in favor of the
creditor OR before the confirmation of the sale at
the discretion of the court
12
Judicial Foreclosure
File an action with RTC which has jurisdiction over
location of SM
Court shall order payment of debt within 90-120 days
from entry of judgment (debtors receipt of judgment,
Herrera v. Arellano, 97 Phil 776)
Equity of Redemption
Equity of Redemption
Equity of Redemption
Execution of judgment
Application of proceeds
Execution of sheriffs certificate
If mortgagee is PNB or
mortgagees,
a banking institution, 1-yr
right of redemption starts
winning
bidders name
For ordinary
title shall now be
consolidated in
In Case of Deficiency
Can recover within 10 years from time the right of
action accrues
Concept
2132- by the contract of antichresis the creditor
acquires the right to receive fruits if an immovable
of his debtor, with the obligation to apply them to
the payment of interest, if owing and thereafter to
the principal of his credit
Case: Medel vs. CA You can still bring the creditor to the
court
even if the usury law is suspended.
Role of Delivery
Delivery is only required in order that the creditor
may receive the fruits and not for validity of the
antichresis.
Obligations of the Antichretic Creditor
Must pay taxes and charges upon the estate
necessary
for
13
Pledge
Movable property
Antichresis
SM is delivered to
creditor
Real contract
RM
theDebtor
usually
retains
possession over SM
14
Pledge
Subject Matter
Chattel Mortgage
Real Mortgage
Antichresis
Fruits of real property
Registration in CM
Registry
Public Instrument
Pactum applicable
YES
YES
YES
YES
Essence
Pledgee retains
possession until
payment
CM follows the
property
Default options
Art. 2112
Act 1508
Rules of Court
Judicial Deposit
Role of Delivery
Subject Matter
Nature of Deposit
Deposit
PURPOSE
Consumption
NATURE
Gratuitous or Gratuitous
onerous
Gratuitous or
onerous
OBJECT
Extrajudicial:
movables
DEMANDABILITY Depositor
can demand
thing at will
Commodatum Mutuum
Pay within
period
Judicial Deposit
VOLUNTARY DEPOSIT
Concept
MAIN
DISTINCTION
WITH
NECESSARY
DEPOSIT: Depositor has complete freedom in
choosing the depositary.
15
EXCEPTIONS:
Stipulated
Uses without owners permission
Delays in return
Allows others to use it even though he himself is
authorized
Obligations of the Depositary: Loss by Force Majeure
(1990)
Depositors Incapacity
1995
Upon loss or destruction of the thing
deposited
In case of gratuitous deposit, upon the death
of either the depositor or the depositary
Other causes (novation, merger, expiration of
the term, fulfillment of resolutory condition)
NECESSARY DEPOSIT
Concept
Incapacity of Depositary
16
of
the
Exempted Properties
17
Illustration
Expenses of salvage
ORDINARY PREFERRED
SUMMARY
Order is published
18
against
the
Involuntary Insolvency
Acts of Insolvency
19
20