VIII  Words “if owing” (interest) reveal that IT IS NOT

ESSENTIAL THAT THE LOAN SHOULD EARN INTEREST

ANTICHRESIS
in order that it can be guaranteed with a contract of
(Arts. 2132-2139) antichresis; antichresis is susceptible of guaranteeing
all kinds of obligations, pure or conditional
Chapter 4

ANTICHRESIS

ANTICHRESIS PLEDGE

Fruits of real property Personal property

Article 2132. By the contract of antichresis the creditor
acquires the right to receive the fruits of an immovable of Perfected by mere Perfected by delivery
his debtor, with the obligation to apply them to the consent (in written
payment of the interest, if owing, and thereafter to the contract)
principal of his credit. (1881)
Consensual contract Real contract

Characteristics: (FANC)
ANTICHRESIS REAL MORTGAGE
1. Formal- in writing
Property delivered to Debtor usually retains
2. Accessory the creditor possession of property

3. Nominate Right to receive fruits; Does not have right to

does not produce real receive fruits; creates
4. Consensual- does not require delivery of immovable to
right real right over
the creditor
property enforceable
against whole world

 Delivery is not required as to the validity of the Creditor is obliged to Creditor has no such
contract; It is required so that the creditor may receive pay the taxes and obligation
the fruits charges upon estate,
unless there’s contrary
provision
Parties to the contract: Debtor & creditor Creditor given No such obligation on
Essential requisites: (COC) possession shall apply the part of the
fruits to payment of mortgagee
1. Consent- meeting of the offer and acceptance upon the interest, if owing,
thing and the cause which are to constitute the contract thereafter to principal
debt
2. Object

3. Cause
 Similarity: subject matter is real property; antichresis
gives a real and not merely a personal right if it is
 Antichresis IS NOT A REAL CONTRACT. Hence, delivery registered in the Registry of Property
of the property to the creditor is not required for the
perfection of the contract
 Express stipulation of the obligation of the creditor
(application of the fruits to interest, if owing, and
Right of creditor to the fruits: Covers all the fruits of the then to principal) is required for it to be considered as
encumbered property: but parties may stipulate otherwise antichresis

 If a loan with security does not stipulate the

payment of interest but provides for the delivery
Obligation to pay interest not essential to the creditor by the debtor of the real property
in order for the latter to avail himself of its fruits,
without stating the said fruits are to be applied
 to the payment of the interest contract shall be
considered as one of mortgage and not of
antichresis
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)
 Fruits must be appraised at their actual market value at
the time of the application
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)
 The amount if principal and interest shall be specified
in writing in order for the contract to be valid and not
only to affect third persons
 Even if the antichresis is void, the principal obligation is
still valid
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)
Obligations of the antichretic creditor:
 Creditor acquires the right to enjoy the fruits of the
property delivered to him
 This right carries two obligations which are the
necessary consequences of the contract:
1. Payment of taxes and charges upon the estate,
unless there is stipulation to the contrary
i. If he does not pay the taxes, he is by law
required to pay indemnity for damages to
the debtor
ii. Debtor pays instead of the creditor:
1. Amount is applied to the payment of
debt
2. Debtor is entitled to the return of
property free from all encumbrances
3. Advancing the taxes; already
discharged the debt
2. Application of the fruits of the estate
i. Render an account of said fruits to the
debtor
ii. Right of the creditor to apply said fruits to
the debt
 Sums spent shall be charged against
the fruits of the property
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)
Right of antichretic debtor to reacquire enjoyment of
property
 GR: The debtor cannot demand the return of the
property delivered, which stands as a security, until
the debt if totally paid.
 Exception: 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
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.  An antichresis secures the obligation to pay a sum of
(1884a) money

 Article 2085. Article 2089 & Article 2091 are

applicable to the contract of antichresis
Nonpayment of debt
 Article 2085:

 Constituted to secure fulfillment of a

 Creditor does not acquire ownership of the real state
since what was transferred is the RIGHT TO RECEIVE ITS
FRUITS
 Void: automatic appropriation; Valid: authorizes
creditor merely to take actual or constructive
possession of property
principle obligation
 Debtor be the absolute owner of the
subject property
 Debtor constituting the antichresis have
free disposal of property in the absence,
they be legally authorized for the purpose

Remedies of Creditor:
 Article 2089:
1. Action for specific performance
 Antichresis is indivisible, even though the
2. Petition for sale of real property as in foreclosure of
debt may be divided among
mortgages under Rule 68 of Rules of Court
successors-in-interest of debtor or of
creditor

Acquisition by creditor of property by prescription:  Article 2091:

 Not possible because possession is not in the concept  The contract of antichresis may secure
of owner; the possession of an antichretic creditor is in all kinds of obligations, be they pure
the concept of holder or subject of a suspensive or
resolutory condition

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)

Interest in antichresis subject to the Usury Law

 If the appraised value of the fruits should exceed the

amount of interest allowed by the Usury Law, the
excess shall be applied to the principal

 Note: Rate of interest on loan or forbearance of money,

goods, or credit is no longer subject to any ceiling
prescribed under the Usury Law

Article 2139. The last paragraph of article 2085, and articles

2089 to 2091 are applicable to this contract. (1886a)