CHAPTER 4

Antichresis

Article 2132. By the contract of antichresis the creditor acquires the right to receive the fruits
of an immovable of his debtor, with the obligation to apply them to the payment of the interest,
if owing, and thereafter to the principal of his credit. (1881)
Notes:
- the article defines antichresis
-

antichresis is:
a) an accessory contract it secures the performance of a principal obligation
b) a formal contract must be in writing

it is an independent contract
it requires the delivery by the debtor in order that the creditor may receive the fruits and not
that the contract shall be binding
the contract does not cover the immovable but only its fruits
it normally covers all the fruits of the encumbered property, but the law gives the parties the
freedom to stipulate otherwise
it is susceptible of guaranteeing all kinds of obligations, pure or conditional
right of the creditor to the fruits
obligation to pay interest is not of the essence of the contract of antichresis, any more than it is
indispensable in a contract of loan
to be antichresis, it must be expressly agreed between creditor and debtor that the former,
having been given possession of the properties given as security, is to apply their fruits to the
payment of interest, if owing, and thereafter to the principal of his credit
like pledge and mortgage, antichresis gives a real and not merely a personal right if it is
registered in the Registry of Property

distinctions:
Antichresis
- refers to real property

Pledge
- refers to personal property

- is perfected by mere consent

- is perfected by the delivery of the thing

pledged

- is a real contract
both are similar in that the debtor loses control of the subject matter of the contract

- is a consensual contract

Antichresis
- the property is delivered to the creditor,

Mortgage
- the debtor usually retains possession of
the property

- the creditor acquires only the right to

receive the fruits of the property; hence, it
does not produce a real right

- the creditor does not have any right to

receive the fruits, but mortgage creates a
real right over the property which is
enforceable against the whole world

- the creditor, unless there is a stipulation

to the contrary, is obliged to pay the taxes
and charges upon the estate
- it is expressly stipulated that the creditor
given possession of the property shall
apply the fruits thereof to the payment of
interest, if owing, and thereafter to the
principal of the credit

- the creditor has no such obligation

- there is no such obligation on the part of

the mortgagee

both are similar in that the subject matter is real property

Article 2133. The actual market value of the fruits at the time of the application thereof to the
interest and principal shall be the measure of such application. (n)
Notes:
- measure of application of fruits to interest and principal
- the fruits of the immovable which is the object of the antichresis must be appraised at their
actual market value at the time of the application
- this article is intended to forestall the use of antichresis for purposes of usury

Article 2134. The amount of the principal and of the interest shall be specified in writing;
otherwise, the contract of antichresis shall be void. (n)
Notes:
- Article 2134 is an instance when the law requires that a contract be in some form in order that
it may be valid and not only to affect third persons
- even if the antichresis is void, the principal obligation, however, is still valid
- this article is intended to forestall the use of antichresis for purposes of usury

Article 2135. The creditor, unless there is a stipulation to the contrary, is obliged to pay the
taxes and charges upon the estate.
He is also bound to bear the expenses necessary for its preservation and repair.
The sums spent for the purposes stated in this article shall be deducted from the fruits. (1882)
Notes:
- obligations of the antichretic creditor
o payment of taxes and charges upon the estate
o application of the fruits of the estate apply the fruits, after receiving them, to the
interest, if owing, and thereafter to the principal in accordance with the provisions of
Article 2133 or 2138

Article 2136. The debtor cannot reacquire the enjoyment of the immovable without first having
totally paid what he owes the creditor.
But the latter, in order to exempt himself from the obligations imposed upon him by the
preceding article, may always compel the debtor to enter again upon the enjoyment of the
property, except when there is a stipulation to the contrary. (1883)
Notes:
- right of antichretic debtor to reacquire enjoyment of property

Article 2137. The creditor does not acquire the ownership of the real estate for non-payment of
the debt within the period agreed upon.
Every stipulation to the contrary shall be void. But the creditor may petition the court for the
payment of the debt or the sale of the real property. In this case, the Rules of Court on the
foreclosure of mortgages shall apply. (1884a)
Notes:
- remedy of creditor in case of nonpayment of debt
a) to bring an action for specific performance
b) or to petition for the sale of the real property as in a foreclosure of mortgages under
Rule 68 of the Rules of Court
-

the parties, however, may agree on an extrajudicial foreclosure in the same manner as they
are allowed in contracts of mortgage and pledge
the creditor does not acquire ownership of the real estate since what was transferred is not the
ownership but merely the right to receive its fruits
a stipulation authorizing the antichretic creditor to appropriate the property upon the
nonpayment of the debt within the period agreed upon is void

the creditor in antichresis and his successors-in-interest cannot ordinarily acquire by

prescription the land given to him, any agreement to the contrary being void
he cannot acquire the ownership of the real estate subject of the antichresis unless he
repudiates his status as an antichretic creditor

Article 2138. The contracting parties may stipulate that the interest upon the debt be
compensated with the fruits of the property which is the object of the antichresis, provided
that if the value of the fruits should exceed the amount of interest allowed by the laws against
usury, the excess shall be applied to the principal. (1885a)

Article 2139. The last paragraph of article 2085, and articles 2089 to 2091 are applicable to this
contract. (1886a)
Notes:
- Article 2085. The following requisites are essential to the contracts of pledge and mortgage:
1) That they be constituted to secure the fulfillment of a principal obligation;
2) That the pledgor or mortgagor be the absolute owner of the thing pledged or mortgaged;
3) That the persons constituting the pledge or mortgage have the free disposal of their
property, and in the absence thereof, that they be legally authorized for the purpose.
Third persons who are not parties to the principal obligation may secure the latter by
pledging or mortgaging their own property.
-

Article 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 debtor's heir who has
paid a part of the debt cannot ask for the proportionate extinguishment of the pledge or
mortgage as long as the debt is not completely satisfied.
Neither can the creditor's 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. (1860)

Article 2090. The indivisibility of a pledge or mortgage is not affected by the fact that the
debtors are not solidarily liable. (n)

Article 2091. The contract of pledge or mortgage may secure all kinds of obligations, be they
pure or subject to a suspensive or resolutory condition. (1861)