Académique Documents
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Suretyship
2. Collateral under-taking
2. Surety is an original
promisor
3. Guarantor is secondarily
liable
3.
Surety is primarily
liable
1. Guarantor
binds
himself to pay if the
principal CANNOT PAY
4. Surety undertakes to
pay if the principal DOES
NOT PAY
5. Insurer of solvency of
debtor
Debtor defaulted
2.
3.
4.
5.
1.
2.
3.
Pactum Commissorium
Stipulation whereby the thing pledged or mortgaged, or under
antichresis shall automatically become the property of the creditor
in the event of non-payment of the debt within the term fixed.
Requisites:
1. There should be a pledge, mortgage, or antichresis of property by
way of security for the payment of the principal obligation; and
2. There should be a stipulation for an automatic appropriation by
the creditor of the property in event of nonpayment of the
obligation within the stipulated period.
3.
PLEDGE
1. Constituted on
movables
2. Property is delivered to
pledgee or by common
consent to a third person
3. Not valid against third
persons unless a
description of the thing
pledged and date of
pledge appear in a public
instrument
REAL MORTGAGE
1. Constituted on
immovables
2. Delivery is not
necessary
3. Not valid against third
persons unless registered
Foreclosure
The remedy available to the mortgagee by which he subjects the
mortgaged property to the satisfaction of the obligation to secure
that for which the mortgage was given
Judicial foreclosure
Extrajudicial
foreclosure
1. There is court
intervention
2. Decisions are
appealable
3. Order of court cuts
off all rights of the
parties impleaded
4. There is equity of
redemption except on
banks which provides for
a right of redemption
5. Period of redemption
starts from the finality of
the judgment until order
of confirmation
6. No need for a special
power of attorney in the
contract of mortgage
1.
No court intervention
2. Not appealable
because it is
immediately executory
3. Foreclosure does not
cut off right of all parties
involved
4. There is right of
redemption
5. Period to redeem
start from date of
registration of certificate
of sale
6. Special power of
attorney in favor of
mortgagee is needed in
the contract
Redemption
It is the transaction by which the mortgagor reacquires or buys
back the property which may have passed under the mortgage,
or divests the property of the lien which the mortgage may have
created.
Kinds:
1. Equity of Redemption right of mortgagor to redeem the
mortgaged property after his default in the performance of the
conditions of the mortgage within the 90-day period from the date
of the service of the order of foreclosure or even thereafter but
before the confirmation of the sale. Applies to judicial foreclosure
of real mortgage and chattel mortgage foreclosure.
2. Right of Redemption right of mortgagor to redeem the
mortgaged property within one year from the date of registration
of the certificate of sale. Applies only to extrajudicial foreclosure
of real mortgage.
NOTE: The right of redemption, as long as within the period
prescribed, may be exercised irrespective of whether or not the
Pledge
2. Perfected by mere
consent
3. Consensual contract
1. Refers to personal
property
2. Perfected by delivery of
the thing pledged
3. Real Contract
Antichresis
Real Mortgage
1. Property is delivered to
1. Debtor usually retains
creditor
possession of the property
2. Creditor acquires only
2. Creditor does not have
the right to receive the
any right to receive the
fruits of the property,
fruits; but the mortgage
hence, it does not produce creates a real right over
a real right
the property
3. The creditor, unless
3. The creditor has no
there is stipulation to the
such obligation
contrary, is obliged to pay
the taxes and charges
upon the estate
4. It is expressly stipulated 4. There is no such
that the creditor given
obligation on part of
possession of the property mortgagee
shall apply all the fruits
thereof to the payment of
interest, if owing, and
thereafter to the principal
Subject matter of both is real property
2
3
4
NOTES:
The parties, however, may agree on an extrajudicial foreclosure
in the same manner as they are allowed in contracts of mortgage
and pledge (Tavera vs. El Hogar Filipino, Inc., 68 Phil 712).
A stipulation authorizing the antichretic creditor to appropriate the
property upon the non-payment of the debt within the agreed
period is void (Art 2088).
CHATTEL MORTGAGE (Articles 2140-2141)
A contract by virtue of which personal property is recorded in the
Chattel Mortgage Register as a security for the performance of an
obligation (Art 2140).
Characteristics
1. Accessory contract it is for the purpose of securing the
performance of a principal obligation
2. Formal contract registration in the Chattel Mortgage Register is
indispensable for its validity
3. Unilateral contract it produces only obligations on the part of the
creditor to free the thing from the encumbrance on fulfilment of
the obligation.
Special Requisites (in addition to the common essential
requisites):
1. It can cover only personal or movable property in general;
however, the parties may treat as personal property that which by
its nature would be real property;
2. Registration of the mortgage with the Chattel Mortgage Register
where the mortgagor resides; if property is located in a different
province, registration in both provinces required;
3. Description of the property as would enable the parties or other
persons to identify the same after reasonable investigation and
inquiry; and
4. Accompanied by an affidavit of good faith to bind third persons,
but not for the validity of the contract.
5. It can cover only obligations existing at the time the mortgage is
constituted.
NOTE: A mortgage containing a stipulation in regard to future
advances in the credit will take effect only from the date the same are
made and not from the date of the mortgage (Jaca vs Davao Lumber
Co., 113 SCRA 107
Effect of failure to register chattel mortgage in the chattel
mortgage registry
Pledge
1. Delivery of the thing
pledged is necessary
2. registration not
necessary to be valid
3. Debtor is not entitled
to excess unless
otherwise agreed or
except in case of legal
pledge
4. If there is deficiency,
creditor is not entitled to
recover notwithstanding
any stipulation to the
contrary
4. If there is deficiency
after foreclosure,
creditor is entitled to
recover the deficiency
from the debtor, except
under Art. 1484
Subject matter of both is movable property
3.
4.
NOTES:
The creditor may maintain an action for the deficiency, except if
the chattel mortgage is constituted as security for the purchase of
personal property payable in instalments (Art. 1484).
The action for deficiency may be brought within ten (10) years
from the time the cause of action accrues (Arts 1141 and 1142).
Only equity of redemption is available to the mortgagor; the latter
can no longer redeem after the confirmation of the foreclosure
sale.
Right of redemption
When the condition of a chattel mortgage is broken the following
may redeem:
a) mortgagor;
b) person holding a subsequent mortgage; or
c) subsequent attaching creditor.
An attaching creditor who so redeems shall be subrogated to the
rights of the mortgagee and entitled to foreclose the mortgage in
the same manner that the mortgagee could foreclose it.
The redemption is made by paying or delivering to the mortgagee
the amount due on such mortgage and the costs, and expenses
incurred by such breach of condition before the sale thereof (Sec
13, Act No. 1508).
Right to possession of foreclosed property
1. Real mortgage After the redemption period has expired, the
purchaser of the property has the right to a conveyance and to be
placed in possession thereof.
NOTES:
Purchaser is not obliged to bring a separate suit for
possession. He must invoke the aid of the courts and ask for
a WRIT OF POSSESSION.
Section 7 of Act No. 3135 allows the purchaser to take
possession of the foreclosed property during the period of
redemption upon filing of an ex parte application and
approval of a bond.
2.