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PROVISIONS COMMON TO PLEDGE AND

MORTGAGE(PM)
2085. Requisites
1. They are created to secure a principal
obligation.
2. The pledgor or mortgagor must be the
absolute owner of the thing.
3. Persons constituting pledge or mortgage
must have a free disposal of thing or have
legal authority.
Note: Characteristics:
1. Real - perfected by delivery of thing
2. Accessory- cant stand on its own. It
follows principal.
3. Unilateral- obligation of creditor to return
thing upon fulfilment of principal
obligation.
4. Subsidiary2087. When principal obligation becomes
due, creditors may ALIENATE the thing.
(alienate-foreclosure; not disposal)
2088. Creditors cant
appropriate/dispose/sell thing. Stipulation to
contrary is null and void, and this is known
as pactum commissorium.
2089. Pledge or mortgage is considered
indivisible even though debt may be
divided.
If debtors heir paid part of debt, there
is no partial release/extinguishment of
pledge or mortgage until it is fully
paid.
Creditors heir who received his share
of debt cant return the thing or cancel
mortgage.
Exception: Partial release of obligation
is possible when each of the thing
guarantees only a determinate portion
of the obligation.
2090. Pledge and mortgage is still indivisible
even if obligation is joint or solidary.
2091. PM can secure all kinds of obligations
(voidable or unenforceable)(pure or subject
to suspensive or resolutory condition)
2092. A promise to create PM, gives rise
only to personal right or personal action
bet parties and no real right in property.

PLEDGE
PLEDGOR -DEBTOR PLEDGEE -CREDITOR
2093. Requisites
1. 2085
2. Thing must be placed in possession of
creditor. (actual & continuous
possession.)
Properties that may be pledged
2094. Movables within commerce of man &
susceptible of possession
2095. Incorporeal rights evidenced by
documents
2096. Form to take effect against third
parties
Public Instrument-notarize for
authentication
Dated and with Description of thing
2097. With consent of pledge, pledgor may
alienate thing. The ownership is passed to
buyer but pledge remains in possession.
2098. Creditor had the right of retention
or right to retain thing until obligation is paid.
2099. Creditor must take care of thing with
diligence of good father.
He can seek reimbursement for
expenses made for its preservation.
He is liable for loss or deterioration if it
was due to fraud, negligence, delay or
violation of contract terms. He is not
liable if due to fortuitous event.
2100. Pledgee cant deposit thing with a
third person, unless stipulated. He will be
responsible for acts of his agents or
employees with respect to thing.
2102. Income, Fruits , Dividends,
Interests
Belong to owner or pledgor
May be applied as payment of obligation
Offspring of animals included in the
pledge
2103. Expropriation of thing pledged
(will be used for public purpose)

Debtor remains owner


Pledgee has right against claims of third
persons.

2104. Pledgee cant use the thing pledged


unless
There is an agreement.
Theres a need to use thing for purposes
of its preservation. (car)
In cases of misuse by pledgee, pledgor
may ask for judicial/extrajudicial deposit.
(pledgee-pay damages)
2105. Debtor cant ask the return of thing
until he has paid his debt, interests &
expenses for its preservation.
2106. Thing is in danger of lost or impaired
due to pledgees negligence, pledgor may
require it to be deposited with third person.
(Similar to 2104.)
Without pledgees fault, there are
reasonable grounds to fear destruction
or impairment of thing, Remedies:
2107. Right of pledgor to demand return of
thing and substitute it with another that is of
same kind & quality.
2108. Right of pledge to have thing sold at
public sale; Proceeds will be the security.
(This right is more superior to 2107.)
2109. Creditor was deceived by the
substance and quality of thing. Creditors
Remedies are:
Claim another thing
Demand immediate payment

Mode of payment in bidding: In cash and


in full
Anyone can participate in the bidding.
( pledgor, pledge or public). No minimum
amount of bid.
Pledgor will be preferred if he has the
same offer as the highest bidder.
If pledgee is the only bidder, it is a
failed bid.
If 1st and 2nd Biddings were failed, thing
will be awarded to pledgee. He is obliged
to give aquittance for his entire claim.
Extinguishment: Sale of thing to Highest
Bidder
Excess: given to pledgee unless
agreed otherwise
Deficiency: Pledgee may not
collect; stipulation to contrary is
void.
2116. Pledgee must inform pledgor of the
results fo bidding.
2117. A third person who has any right in or
to the thing may pay for the obligation once
it becomes due and creditor cant refuse
payment.
REAL MORTGAGE
MORTGAGOR - DEBTOR MORTGAGEE- CREDITOR
2124. Properties:
Immovables
Alienable real rights

2110. If thing is returned by pledgee to


pledgor, then pledge is extinguished.
Stipulation to contrary is void.
If pledgor or a third party is in possession of
thing, presumption is pledge is already
extinguished.

2125. Requisites:
1. 2085
2. Document recorded in Registry of
Property to affect third parties

2111. Written
Renunciation/Abandonment
Pledge is extinguished.
Pledgee becomes a depositary.

2127. Extent of Mortgage


Mortgage extends to all its accessions,
improvements, growing fruits, income. To
exclude them, there must be an express
agreement.

2112-2115 Remedy for Non-payment of


Obligation
Notification to debtor (demand?)
Notarial Auction or Auction Sale
conducted by notary public (residence of
pledge)

2126.

2128. Mortgage credit may be alienated or


assigned to a third person, in whole or in
part.
2129. Creditor may claim from possessor of
property the payment of the credit secured.

Practice: half the price & less=too low


2130. Stipulation forbidding owner from
alienating the immovable is void.
Conjugal Property was mortgage by either
husband & wife. The contract of mortgage
is void.
Before Family Code (Aug. 1, 1988),
contract is voidable.
Sale of property co-owned by X & Y(5050), half valid and half void.
Consideration involved
the one in the principal contract
Agreement bet. Borrower and third party
Liberality Gratuitous
Mortgage-security for a loan obligation
Secure present obligation
Dragnet Clause/All inclusive clausesubsumes obligations of past and future
origins (valid). Also, known as a Blanket
Mortgage. Must include this clause in
registration.
Remedy for Non-payment of Obligation
1. Judicial Foreclosure
2. Extra-Judicial Foreclosure- Act. 3135

Foreclosure sale of property at public


auction and apply proceeds to satisfy claim
of creditor.
Foreclosure auction sale conducted by either
a) notary public
b) court sheriff

choice of mortgagee
anybody can participate
no minimum bid/no required bidders

Mortgagor/owner has the same bid with


another
-rebidding
-one who has the higher bid
Php100,000
-only bidder=php10.00 (can award
unconscionably low bid)
-failed bid
-taken on a case to case basis

-If the mortgagee is the only bidder, it will be


awarded to him.
-TIPOUpset Price (Void)
-fixed amount agreed upon by the parties to
be the bid amount during foreclosure.
Excess-given to mortgagor/owner
-automatic
-stipulation to contrary is void
90(10)-creditor can still collect from
borrower/debtor
Pledge-extinguishment of obligation
Buyer at Auction
-becomes the owner
-no recovery
Highest bidder
-will be given Certificate of Sales (CS/COS)
-will only obtain absolute ownership
REDEMPTION Period
-acquire bulk of property
-Register CS/COS-one year redemption from
date of registration of COS
-No registration-no absolute owner
Highest Bidder-no right to refuse redemption
as long as mortgagor pays the whole
redemption amount
After 1 year RP, Highest bidder will become
absolute owner
After 1 year, Right to Redeem becomes
legally extinct, FUNCTUS OFICIO (repurchase)
Repurchase-absolute owner may sell
property at any amount
Mortgagor-judicial person; corporation
XXX Corp.
-Section 47 of general banking law
-The redemption period shall be until but not
after the registration of COS which in no
case, shall be 3 months from foreclosure,
auction sale, whichever is earlier.
Jan. 20 auction sale
Jan. 21 CS registration (stop the right to
redeem)
April 20- 3 months
April 21
-Commercial land

Mortgagee/creditor is Rural Bank


2 rights of mortgagor
-a redemption period is 2 years from
registration of COS (certificate of sales or
COS)
-owners/heirs of property, 5 years to
repurchase after 2 years
Redemption-right (Highest bidder bound by
redemption price + expenses)
Repurchase- absolute owner; may sell at any
amount; may sell or not
Judicial Foreclosure
-court process
-Regional Trial Court (RTC) issue order
regarding balance, requiring borrower to pay
-at least 90 days
After lapse of period,
-sold through auction
-no minimum bidder
-no minimum bid
-anyone can participate

(2)against third parties null & void


(3)affidavit of good faith
-declaration by mortgagor that the
mortgage is a security for a particular
obligation
-just & valid
Properties Covered
-Movables (416)
Not applicable
-dragnet clause
-income
House-immovable-estoppel-valid between
contracting parties
-no need to physically deliver the thing
Remedies
(1)Extrajudicial Foreclosure
Act No. 1508-no minimum bidder
-no minimum bid price
-anyone can bid
-failed bid
Excess-mortgagor
Deficiency-can collect from borrower

Failed bid-unconscionably low


CS-higher bidder
Excess-mortgagor
Deficiency-collect

Highest bidder is given a Certificate of Sales


(CS)
-becomes the absolute owner
-no right of redemption

After auction, go to court & get order of


confirmation
-purposes for court to determine the
regularity of auction sale

Antichresis
Requirements
(1)2085
(2)writing
(3)void if not in writing
Property
-immovable-fruits/income/interest

-Register with Registrar of Deeds


-Highest bidder becomes absolute owner
-No Right of Redemption
Equity of Redemption
-can always be exercise as long as the court
hasnt issued order of confirmation
Exception
-Right of Redemption can be exercise if:
Mortgagee is a bank or financial institution
(lends money)
Within 1 year from registration of CS/order
(certificate of sale)
Chattel Mortgage
Requires (1)2085
(2)chattel mortgage register
Not registered
(1)valid between contracting parties

Remedies
(1)Pay
(2)Court-Sale(Auction)
Follow Rule on Judicial Foreclosure
Loan 1933
Commodatum
contract of sale
-nonconsummable
Bailor-person delivering nonconsummable
-movable/1937 personal; immovable
or real
-no transfer of ownership
Simple loan (Mutuum)
-money or other tangible things
-contract of consumption
-movables/personal
-ownership transferred
-tangible-sack of rice

RES Peret Domino


Bailor-make use of it and return it later on
delivery
Bailee-replace it with same kind & quality

Mutuum 1954-1955
-can you return in kind?No
-borrow money-pay in legal tender (foreign
currency)
-unless agreed upon

Consummables-for display or exhibition


Deposit 1962
-safekeeping
-same object
Bank deposit
-simple loan (Mutuum)
-give the bank money
Credit, discount
1935,1936,1937,1938 Commadatum
1939 Personal contract cant lend or lease
-it is possible that the members of bailees
household may use it; unless theres
stipulation to contrary
Extinguished death of bailor or bailee
Gratuitous-free
-consideration
How long will bailee use thing?
-agreement of parties

Loan
Commodatum
-use
-real or personal
-gratuitous
-period
-duration is silent
Contract of precarium 1947 tolerated
-bailor can demand for its return at
anytime
Expenses
1.Ordinary-Bailee should pay expenses
2.Preservation-no reimbursement
Extraordinary-bailee & bailor (50%/50%0
Car-daily (day to day) expenses
-change of machine-shared equally by bailor
& bailee
Right of Retention 1944
-may be exercised by bailee to hold on to the
thing until he is reimbursed

Tangible-same kind & quality


Regardless of value
If its impossible to deliver the same kind, its
value at the time of the perfection of loan
shall be paid
1956 payment of interest
-possible if it is in writing and agreed upon by
parties
-unconscienable, the courts may reduce the
same
-silent about interest rate=legal interest rate
(6% per year)
-may be simple or compounded silent:use
simple
Solution Indebite
Borrower paid interest even though theres
no need
Credit card contract of credit
-no delivery of thing
-deferred payment
Deposit
-real contract
Deposit
Depository-person responsible for
safekeeping
-may cover real & personal property
-no transfer of ownership
-depositor need not be the owner
*Depository may only use thing for purpose
of preserving it and safekeeping
*If depositor allows use of thing, it may be
some other contract (no longer a deposit)
2 General Kinds
1964
1.Judicial - Court
2.Extrajudicial-by virtue of agreement
a)voluntary-real contract of parties;theres
a need to
delivery thing
b)necessary
Voluntary
1969
-oral or written (any form)
1970
Depositor incapacitated

-return the thing to the guardian


1971
Depository if incapacitated
-return it
-recover the amount of benefit from the
depository
A------D-------X (bad faith)-liable for damages
Standard case
-diligence of a Good Father
1265 Civil Code
-presumption that the one in possession is
responsible for its loss unless...
-founded on trust & confidence
-1975 safety deposit box
-control between bank & person (2 keys)
The use is incidental or secondary
1995 Extinguishment
(1)Expiration of period
(2)Precarium (demand at will)
(3)Mutual withdrawal
(4)
(5)Fulfillment of purpose of deposit
Necessary/Involuntary 1996
(1)Calamities
1998
-obligation of hotelkeepers or inn liable for
loss, deterioration
(1)traveller gives notification of the things he
is bringing (declaration)
(2)follow precautionary measures of the
hotel
-vehicles parked, jewelry
2000-2002
2000 Outsider/stranger
Armed/uses irresistible force
-hotel is not liable
-fortuituous event
2002 Ousider/stranger
-visitor of guest
2004
Sell things of guests if they dont pay-seek
judicial authority first
Estafa
Guaranty 2047
Guarantor
-subsidiary

-when debtor cant pay, creditor can go


against guarantor
Insurer of solvency
Guaranty
B/O ---- C
Guarantor can guarantee less than or equal
the amount
Contract of surety
-guarantor is bound as the debtor
-creditor can immediately collect from him
Benefit of discussion
-creditors must first exhaust the
assets/properties of debtors or collectibles
-guarantor can refuse to pay
Creditors cant avail of excussion
Renunciation (waiver, no properties,
bankcrupt, surety)
Useless
Solidary
Insolvency
Abscond
Guarantor pays creditor
-seek reimbursement
T-total amount of debt
I-Interest
E-expenses
D-damages if any

2066

2071
S-Sued
I-Insolvent (Debtor)
P-Period elapse & debtor has yet to pay
E-Expiration of term
T-Ten years lapse
A-Absconds
I-Imminent Insolvency

Pledge
1. Object

Personal or movable

2. Parties(debt
or-creditor)
3. Registration
/
Recording
4. Right to sell

Pledgor-Pledgee

5. Effect of
Sale

Excess: Creditor is
entitled unless
otherwise agreed.
Deficiency: Creditor
cant recover.
Notarial Auction

6. Foreclosure

Public Instrumentdated and with


description
Cant be sold without
consent of pledgee

Real Estate
Mortagage
Real or immovable and
Alienable real rights
Mortgagor-Mortgagee

Chattel Mortgage

Registry of
Deeds/Property

Need an Affidavit of Good


Faith and Chatter
Mortgage Registrar
Can be sold even without
consent of mortgagee

Cant be sold without


consent of creditor
(must be in writing and
annotated on
instrument.)
Excess: Creditor is not
entitled.
Deficiency: Creditor
can recover.
Judicial & Extrajudicial

Personal or movable
Mortgagor-Mortgagee

Excess: Creditor is not


entitled.
Deficiency: Creditor can
recover.
Extra-Judicial