ANTICHRESIS Subsequently, Dizon and Gaborro executed a Deed of

Sale with Assumption of mortgage by which Gaborro

assumed the entire mortgage indebtedness of Dizon, in
Contract of Antichresis
return for the transfer of such lots in his name. Gaborro
then, has been in actual possession of the 3 parcels of
Art. 2132, NCC:
land, cultivting the lots, paying realty taxes thereon, and
By the contract of antichresis the creditor acquires the
appropriating all the fruits produced and other income of
right to receive the fruits of an immovable of his debtor,
said lots. Less than a year later, Dizon offerred to
with the obligation to apply them to the payment of the
reimburse Gaborro of what he paid to the banks and
interest, if owing, and thereafter to the principal of his
demanded an accounting of the income of the property,
credit.
contending that the transaction they entered into was one
of antichresis. He contended that the transaction was not
Mortgagee in Possession
an absolute sale but merely an equitable mortgage by
way of security for the reimbursement by Dizon to
One who haas lawfully acquired actual or constructive
Gaborro of what the latter may have paid on account of
poeession of the premises mortgaged to him, standing
the mortgage debts.
upon his rights as mortgagee and not claiming under
another title for the purpose of enforcing his security
Issue: What is the nature of the contract entered into by
upon such property or making its income to pay his debt.
the parties?
Characteristics:
Ruling: The Deed of Sale with Assumption of
1. Accessory contract secures the performance of a
Mortgage cannot be considered a real and unconditional
principal obligation
sale of the parcels of land. Firstly, there was absolutely
2. Formal contract must be in a specified form
no money consideration therefor. The stipulated sum of
P131,831.91 mentioned in the document as the
consideration was not fully paid. Secondly, the properties
Delivery of Property
had already been previously sold by the sheriff to DBP at
the foreclosure sale, thereby divesting Dizon of his full
Antichresis requires the delivery by the debtor of the
right as owner thereof to dispose and sell the lands. The
property given as security to the creditor. But such
true intention of the parties is that Gaborro would assume
delivery is required only in order that the creditor amat
and pay the indebtedness of Dizon to DBP and PNB and
receive the fruits and not that the contract shall be
in consideration therefor, Gaborro was given the
binding.
possession, enjoyment and use of the lands until Dizon
can reimburse fully Gaborro for the amount paid by the
latter. The agreement of Dizon and Gaborro is one of
Right of Creditor to the Fruits
those innominate contracts under Article 1307 of the
New Civil Code whereby they agreed to give and to do
Normally covers all the fruits of the encumbered
certain rights and obligations respecting the lands and the
property, but the law gives the parties the freedom to
mortgage debts of Dizon which would be acceptable to
stipulate otherwise.
the bank, but partaking of the nature of antichresis
insofar as the principal parties are concerned.
Obligation to pay Interest No Essential

Antichresis is suscpetible of guaranteeing all kinds of

Antichresis vs. Pledge
obligations, pure or conditional.
Antichresis Pledge
Dizon vs. Gaborro, 83 SCRA 688 (1978)
Real Property Personal Property
Facts: Jose P. Dizon is the owner of 3 parcels of land Consensual Contract Real Contract
which were subject to a first mortgage lien in favor of
Develpoment Bank of the Philippines (DBP) and a 2nd Antichresis vs. Real Mortgage
mortgage lien in favor of Philippine National Bank
(PNB) . Having defaulted in the payment of his debt, Antichresis Real Mortgage
DBP foreclosed the mortgage. A corresponding Property is delivered to Debtor usually retains
Certificate of Sale was executed in favor of said bank. creditor possession of property
Creditor acquires only the Creditor does not have any
right ot receive fruits of the reight to receive fruits, but
property; hence does not mortgage creates a real he does not pay the taxes, he is by law required to pay
produce a real right right over the property indemnity for damages to the debtor.
which is enforceable
agains the whole world Rosales vs. Tanseco
Creditor is obliged to pay Creditor has no such
the taxes and charges upon obligation Doctrine: Where the debtor has paid for the taxes on the
the estate unless there is a property which the creditor should have paid, the amount
stipulaiton to the contrary. is to be applied to the payment of the debt, and the debtor
Creditor acquires the right No such obligation on the is entitled to the return of the property free from all
to receive the fruits of an part of the mortgagee. encumbrnces if he, in effect, by advancing the taxes, had
immovable of his debtor, already discharged the debt.
with the obligation to
apply them to the payment
of the interest, if owing, Facts: Pureza Congzon, thru fraud and without
and thereafter to the consideration was made by Leocadio S. Tanseco to
principal of his credit. execute a mortgage in favor of Tan Sun on a piece of and
owned by Congzon, Tan Sun then transferred all his
rights to Tan Tay Sun, who, in turen, assigned such to
Tanseco. Congzon never enjoyed the possession and
Application of the Fruits to Interest and then to the fruits of the land. He also paid for the taxes, the amount
Principal of which is more than that of the credit of Tan Sun
secured by the mortgage.
In is not essential to a mortgage that possession of the
mortgaged premises be retained by the mortgagor. Issue: Whether or not there was in fact a contract of
antichresis
To be antichresis, it must be expressly agreed between
creditor and debtor that the former, having been given Ruling: Yes. In a contract of antichresis, the creditor is
possession of the properties given as security, is to apply obiged to pay the taxes on the property, unless the
their fruits to the payment of interest, if owing, and contract says otherwise. The ontract between Congzon
thereafter to the principal of his credit. (Art. 2132, NCC) and Tan Sun said nothing about taxes. Hence, it was the
obligation of the creditor to pay the taxes on the
property. Bearing in mind that the credit was only
Measure of Application of Fruits to Interest and P26,000, it is plain to see that Congzon et. al. affirmed in
Principal effect tthat they had already discharged their debt, by
advancing the taxes which the creditor should have paid,
The fruits if the immovable which is the object of the and are entitled to the return of their property free from
antichresis must be appraised at their actual market value all encumbrance.
at the time of the application.

The foregoing rule will forestall the use of antichresis for
purposes of usury.
Form of Contract
The amount of the principal and of the interest shall be
specified in writing; otherwise, the contract of antichresis
shall be void. (ART. 2134, NCC)
2. Application of the fruits of the estate
The creditor shall apply the fruits, after receiving them,
to the payment of interest, if owing, and thereefter to the
principal in accordance with the provisions of Article
2133 or 2138 of the Civil Code.
3. Render an Account of the Fruits of the Debtor

Obligations of Antichretic Creditor Right of the Antichretic Debtor to Reacquire

1. Payment of taxes and charges upon the estate
The creditor is obliged, unless there is a stipulation to the
contrary, to pay the taxes and charges upon the estate. If
Enjoyment of Property
The property stands as a security for the payment of the
obligation of the debtor in antichresis. Hence, the debtor
cannot demand its return until the debt is totally paid.
However, if the creditor does not want to pay the taxes
and incur the expenses necessary for the preservation and
repair of the property, he may compel the debtor to
reacquire the enjoyment of the same except when there is
a contrary stipulation.
Remedy of Creditor in Case of Non-Payment of Debt
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.
Art. 2091 The contract of pledge or mortgage may
secure all kinds of obligations, be they pure or subject to
a suspensive or resolutory condition.

1. Specific Performance; or
2. Petition for the sale of the real property

Parties, however, may agree on an extrajudicial

foreclosure in the same manner as they are allowed in
contracts of mortgage and pledge.

G.R.: If the debt it not paid, the creditor does not acquire
ownership of the real estate since what was transferred is
not the ownership but merely the right to receive the
fruits.

Acquisition by Creditor of Property by Prescription

The creditor 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 ownership of the real estate subject of the
antichresis unless he repudiates his status as an
antichretic creditor.

Applicability of Certain Articles

Art. 2085 Third persons who are not parties to the

principal onligation may secure the latter by pledging or
mortgaging their own property

Art. 2089 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 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 expected 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.