Vous êtes sur la page 1sur 17

Art. 2000.

The responsibility referred to in the two preceding articles shall include the
loss of, or injury to the personal property of the guests caused by the servants or

employees of the keepers of hotels or inns as well as strangers; but not that which may
proceed from any force majeure. The fact that travelers are constrained to rely on

the vigilance of the keeper of the hotels or inns shall be considered in determining the
degree of care required of him. (1784a)

Art. 2001. The act of a thief or robber, who has entered the hotel is not deemed force
majeure, unless it is done with the use of arms or through an irresistible force. (n)

Art. 2002. The hotel-keeper is not liable for compensation if the loss is due to the acts of the
guest, his family, servants or visitors, or if the loss arises from the character of the

things brought into the hotel. (n)

WHEN HOTEL-KEEPER LIABLE

1. The loss or injury is caused by his servants or employees as well as by strangers


provided that notice has been given and proper precautions taken

2. The loss is caused by the act of the thief or robber done without the use of
arms and irresistible force for in this case, the hotel-keeper is apparently negligent.

WHEN HOTEL-KEEPER IS NOT LIABLE

1. The loss or injury is caused by force majeure, theft or robbery by a stranger


with the use of arms or irresistible force, unless he is guilty of fault or negligence in
failing to provide against the loss or injury from his cause

2. The loss is due to the acts of the guests, his family, servants, or visitors

3. The loss arises from the character of the things brought into the hotel

Art. 2003. The hotel-keeper cannot free himself from responsibility by posting notices
to the effect that he is not liable for the articles brought by the guest. Any stipulation

between the hotel-keeper and the guest whereby the responsibility of the former as set
forth in articles 1998 to 2001 is suppressed or diminished shall be void. (n)

EXEMPTION OR DIMUNITION OF LIABILITY


 The rule in this article is similar to the rule on common carriers which doesn’t
allow a common carrier to dispense with or limit his responsibility by stipulation or
by posting of notices
 Such stipulations is deemed contrary to law, morals, and public policy

1. Hotel-keepers and inn-keepers in offering their accommodations to the public,


practically volunteer as depositaries, and as such, they should be subject to an
extraordinary degree of responsibility for the protection and safety of travelers who have no
alternative but rely on good faith and care of those with whom they take lodging

2. Inn-keepers by the nature of their business, have supervision and control of their
inns and the premises thereof. As a matter of fact, authorities are to the effect that it is not
necessary in order to hold an inn-keeper liable that the effects of the guests be actually
delivered to him or his employee, it is enough that they are within the inn.

Art. 2004. The hotel-keeper has a right to retain the things brought into to be delivered over
to the grantee, promisee or oblige the hotel by the guest, as a security for credits on account of
lodging, & supplies usually furnished to hotel guests.

Not Paying for Food or Accommodation


The act of obtaining food or accommodation in a hotel or inn without paying therefor
constitutes estafa.
Chapter 4
SEQUESTATION OR JUDICIAL DEPOSIT
Art. 2005. A judicial deposit or sequestration takes place
when an attachment or seizure of property in litigation is ordered. (1785)
Art. 2006. Movable as well as immovable property may be the object of sequestration.
(1786)
Art. 2007. The depositary of property or objects
sequestrated cannot be relieved of his responsibility until
the controversy which gave rise thereto has come to an end, unless the court so orders.
(1787a)
Art. 2008. The depositary of property sequestrated is bound to comply, with respect to the
same, with all the obligations of a good father of a family. (1788)

WHEN JUDICIAL DEPOSIT TAKES PLACE

 A deposit may be constituted judicially or extrajudicially


 Takes place when an attachment or seizure of property in litigation is ordered by the court
NATURE AND PURPOSE OF JUDICIAL DEPOSIT

 Judicial deposit is auxiliary to a case pending in court


 Purpose is to maintain the status quo during the pendency of the litigation or to insure the
rights of the parties to the property in case of a favorable judgment

OBLIGATION OF DEPOSITARY OF SEQUESTRATED PROPERTY

 The depositary of sequestered property is the person appointed by the court


 He has the obligation to take care of the property with diligence of a good
father of a family and he may not be relieved of his responsibility until the litigation is ended
or the court so orders

Art. 2009. As to matters not provided for in this Code,


judicial sequestration shall be governed by the Rules of Court. (1789)

APPLICABLE LAW

 The law on judicial deposit is remedial and the Rules of Court is thus applicable
 Rule 57 on preliminary attachment, Rule 59 on receivership, and Rule 60 on
replevin
C. GUARANTY
Chapter 1
NATURE AND EXTENT OF GUARANTY
(ARTICLES 2047 TO 2084)

Article 2047.

By guaranty, a person, called the guarantor,


binds himself to the creditor to fulfill the obligation of the principal debtor in case the
latter should fail to do so.

If a person binds himself solidarily with the principal debtor, the provisions of Section 4,
Chapter 3, Title I of this Book shall be observed. In such case, the contract is called a surety
ship.

GUARANTY
> Contract between the guarantor and creditor
> In a broad sense, it includes pledge and mortgage because the purpose of guaranty may be
accomplished not only by securing the fulfillment of an obligation contracted by the
principal debtor through the personal guaranty of a third
person but also by furnishing to the creditor for his
security, property with authority to collect the debt from the proceeds of the same in case
of default.

CHARACTERISTICS OF A GUARANTY
1. Accessory—because it is dependent for its existence upon the principal obligation
guaranteed by it
2. Subsidiary and conditional—it takes effect only when the principal debtor fails in his
obligation subject to limitation
3. Unilateral—
a. Gives rise only to the duty on the part of the
guarantor in relation to the creditor and not vice versa
b. It may be entered into even without the intervention of the principal debtor
4. Contract, which requires that the guarantor be a distinct person from the principal
debtor because a person cannot be the personal guarantor of himself

CLASSIFICATION OF GUARANTY
1. Guaranty in the broad sense—
a. Personal—guaranty properly so-called or guaranty
in the strict sense. The guarantee given is the
credit given by the person who guarantees the fulfillment of the principal obligation.
b. Real—the guaranty is property, movable or immovable

2. As to its origin
a. Conventional
b. Legal
c. Judicial

3. As to consideration
a. Gratuitous
b. Onerous

4. As to persons guaranteed
a. Single
b. Double or sub-guaranty—one constituted to secure the fulfillment of a guarantee in
another guaranty

5. As to its scope and extent


a. Definite—one where the guaranty is limited to the
principal obligation only, or to a specific portion
thereof
b. Indefinite or simple—one where the guaranty
includes not only the principal obligation but also
all its accessories

SURETYSHIP
> A relation which exists where one person has undertaken an obligation and another person
is also under a direct and primary obligation or other duty to a third person, who is entitled to
but one performance, and as between the two
who are bound, the one rather than the other should perform
> Contractual relation resulting from an agreement whereby
one person, the surety, engages to be answerable for a
debt, default, miscarriage of another known as the principal

LAW APPLICABLE TO SURETYSHIP


> Second paragraph
> It covers OBLIGATIONS, DIFFERENT KINDS OF
OBLIGATIONS, JOINT AND SOLIDARY OBLIGATIONS, OBLIGATIONS AND CONTRACTS
> If a person binds himself solidarily with the principal debtor, the contract is called
suretyship and the guarantor is called the SURETY

DIFFERENCE BETWEEN PASSIVE SOLIDARITY (SOLIDARITY AMONG DEBTORS) AND SURETYSHIP

The two are SIMILAR in the following ways:

1. A solidary debtor, like a surety, STANDS FOR SOME OTHER PERSON.

2. Both debtor and surety, after payment, may require that they be REIMBURSED.

The difference is that the lender cannot go after the surety right away. There has to be default on
the part of the principal debtor before the surety becomes liable. If it were mere solidarity among
debtors, the creditor can go after any of the solidary debtors on due date.

GUARANTY GENERALLY GRATUITOUS

Article 2048. A guaranty is gratuitous unless there is a stipulation to the contrary.

> General rule: a guaranty is gratuitous


> Except when there is a stipulation to the contrary

WHAT IS THE CAUSE OF A CONTRACT OF GUARANTY?

1. Presence of cause which supports principal obligation


2. Absence of direct consideration or benefit to the guarantor

Art. 2049. A married woman may guarantee an obligation


without the husband’s consent, but shall not thereby bind the conjugal partnership, except in
cases provided by law. (n)

Art. 2050. If a guaranty is entered into without the


knowledge or consent, or against the will of the principal debtor, the provisions of Articles 1236
and 1237 shall apply. (n)
GUARANTY UNDERTAKEN WITHOUT KNOWLEDGE OF DEBTOR

 Always remember that a guaranty is unilateral. It exists for the benefit of the creditor and not
for the benefit of the debtor.
 The creditor obviously has every right to take all possible means to secure the payment of his
credit

WHAT THEN IS THE RIGHT OF A THIRD PERSON WHO PAYS?

 Remember the rules on payment.

 A person who pays without the knowledge or against the will of the debtor can recover only
insofar as the payment has been beneficial to the debtor AND he cannot demand the creditor to
subrogate him into his rights

 If he becomes the guarantor with the knowledge and


consent of the debtor, he is subrogated by virtue thereof to all the rights which the creditor has
against the debtor

Art. 2051. A guaranty may be conventional, legal or judicial, gratuitous, or by onerous title.

It may also be constituted, not only in favor of the principal


debtor, but also in favor of the other guarantor, with the latter’s consent, or without his
knowledge, or even over his objection. (1823)

Art. 2052. A guaranty cannot exist without an valid obligation.

Nevertheless, a guaranty may be constituted to guarantee the performance of a voidable or an


unenforceable contract. It may also guarantee a natural obligation. (1824a)

GUARANTY IS AN ACCESSORY CONTRACT

> It is indispensable for its existence that there must be a principal obligation
> So if the principal obligation is void, it follows that it is also void

A GUARANTY MAY SECURE THE PERFORMANCE OF

1. A voidable contract inasmuch as such contract is binding unless it is annulled by a proper


action in court
2. An unenforceable contract because contract is not void
3. A natural obligation so that the contract may proceed
against the guarantor although he has no right of action against the principal debtor for the
reason that the latter’s obligation is not civilly enforceable

Art. 2053. A guaranty may also be given as security for future debts, the amount of which is
not yet known; there can be no claim against the guarantor until the debt is
liquidated. A conditional obligation may also be secured. (1825a)

> One which isn’t limited to a single transaction but which contemplates a future course of
dealings, covering a series of transactions generally for an indefinite time or until revoked
> Prospective in its operations and is generally intended to provide security with respect to future
transactions
> Future debts, even if the amount is not yet known, may be guaranteed but there can be no claim
against the guarantor until the amount of the debt is ascertained or fixed and demandable
> Take note however that the abovementioned provision
may be misleading in sanctioning guarantees for future debts.
What should be bore in mind is that there is
already an existing obligation that is being guaranteed. The guaranty would be
void if there is no existing obligation.

HOW ABOUT GUARANTY OF CONDITIONAL OBLIGATIONS

> If the principal obligation is subject to a suspensive condition, the guarantor is liable only after
the fulfillment of the condition
> If it is subject to a resolutory condition, the happening of the condition extinguishes both the
principal obligation and the guaranty

Art. 2054. A guarantor may bind himself for less, but not for more than the principal debtor, both as
regards the amount and the onerous nature of the conditions.

Should he have bound himself for more, his obligations shall be reduced to the limits of that of
the debtor. (1826)

1. Guaranty is a subsidiary and accessory contract—the guarantor cannot bind himself for more
than the principal debtor and even if he does, his liability shall be reduced to the limits of that of the
debtor

2. Interest, judicial costs, attorney’s fees as part of the damages may be recovered
a. The surety is made to pay not by reason of the
contract but by reason of his failure to pay when demanded and for having compelled the creditor
to resort to the courts to obtain payment
b. Interest doesn’t run from the time the obligation becomes due but from the filing of the
complaint

3. Penalty may be provided


Art. 2055. A guaranty is not presumed; it must be express and cannot extend to more than what is
stipulated therein.

If it be simple or indefinite, it shall compromise not only the


principal obligation, but also all its accessories, including
the judicial costs, provided with respect to the latter, that
the guarantor shall only be liable for those costs incurred after he has been judicially required to
pay. (1827a)

> Requires the expression of consent on the part of the guarantor to be bound
> It cannot be presumed because of the existence of a contract or principal obligation
> Why this rule? The law wants not only that there be assurance that the guarantor has the
true intention to bind himself but also to make certain that on making it, he proceeded with
consciousness of what he was doing

GUARANTY IS COVERED BY THE STATUTE OF FRAUDS

> A guaranty must not only be expressed but must also be reduced to writing

> Falls under the Statute since it is a special promise to answer for the debt, default or
miscarriage of another

A GUARANTY IS STRICTLY CONSTRUED

> It has to be strictly interpreted against the creditor and in favor of the guarantor and isn’t to be
extended beyond its terms or specified limits

> The rule of strictissimi juris commonly refers to an


accommodation party. Why? An accommodation surety
acts without motive of pecuniary gain and hence, should
be protected against unjust pecuniary impoverishment by
imposing on the principal duties akin to those of a
fiduciary. Take note further that this rule only applies once it is established that the contract is one
of suretyship
or guaranty.

EXTENT OF GUARANTOR’S LIABILITY

1. DEFINITE GUARANTY—limited in whole or in part to the principal debt, to the exclusion of the
accessories.
If the amount to be paid or the service to be performed by
the person guaranteed is specified in a contract of guaranty, then the obligation of the guarantor
extends no further than the sum or services so specified, and extrinsic
facts cannot be resorted to for the purpose of enlarging the limit if the guarantor was ignorant of
such facts.
2. INDEFINITE GUARANTY OR SIMPLE GUARANTY—it shall
compromise not only the principal obligation, but also all
its accessories, including the judicial costs, provided with respect to the latter, that the guarantor
shall only be liable for those costs incurred after he has been judicially required to pay.

Reason: the guarantor in entering into the contract could have fixed the limits of his responsibility
solely to the strict terms of the principal obligation and if he didn’t do so, it
must be presumed that he wanted to be bound to the extent so established

WHAT ARE THE QUALIFICATIONS OF A GUARANTOR?

1. He possesses integrity

2. He has the capacity to bind himself

3. He has sufficient property to answer for the obligation which he guarantees

EFFECT OF SUBSEQUENT LOSS OF REQUIRED QUALIFICATIONS

> Qualifications need only be present at the time of the perfection of the contract

> The creditor may however demand another guarantor with the proper qualifications but he may
waive it if he chooses and hold the guarantor to his bargain

> Note in Article 2057 that it requires conviction for a crime


involving dishonesty, but a judicial declaration of
insolvency is not necessary in order for the creditor to have the right to demand another guarantor

SELECTION OF GUARANTOR
1. Specified person stipulated as guarantor—where the creditor has required and stipulated that
a specific person should be a guarantor, the substitution of a guarantor may
not be demanded because obviously, in such a case, the selection of the guarantor is a term of the
agreement and the creditor is bound thereby as a party

2. Guarantor selected by the principal debtor—the debtor


answers for the integrity, capacity and solvency of the former

3. Guarantor personally designated by the creditor—the responsibility should fall upon


the creditor and not on the debtor

RIGHT OF GUARANTOR TO BENEFIT OF EXCUSSION OR EXHAUSTION


1. Guarantor is only secondarily liable
2. All legal remedies against debtor to be first exhausted

RIGHT OF CREDITOR TO SECURE JUDGMENT AGAINST GUARANTOR PRIOR TO EXHAUSTION

> As a rule, an ordinary personal guarantor may demand


exclusion of all the property of debtor before he can be compelled to pay
> The creditor however may secure prior thereto a judgment against the guarantor, who shall be
entitled to a deferment of the execution of said judgment against him until after the properties of
the principal debtor shall have been first exhausted to satisfy the latter’s obligation

EXCEPTIONS TO THE BENEFITS OF EXCUSSION

1. If the guarantor has expressly renounced it;


2. If he has bound himself solidarily with the debtor;
3. In case of insolvency of the debtor;
4. When he has absconded, or cannot be sued within the Philippines unless he has left a manager
or representative;
5. If it may be presumed that an execution on the property of the principal debtor would not result in
the satisfaction of the obligation.
6. If he doesn’t comply with Article 2060
7. If he has a judicial bondsman and sub-surety
8. Where a pledge or mortgage has been given by him as special security
9. If he fails to interpose it as a defense before judgment is rendered against him

DUTY OF CREDITOR TO MAKE PRIOR DEMAND FOR PAYMENT FROM GUARANTOR

Art. 2060. In order that the guarantor may make use of the benefit of exclusion, he must set it up
against the creditor upon the latter’s demand for payment from him, and point
out to the creditor available property of the debtor within
Philippine territory, sufficient to cover the amount of the debt. (1832)

Art. 2061. The guarantor having fulfilled all the conditions required in the preceding article, the
creditor who is negligent in exhausting the property pointed out shall
suffer the loss, to the extent of said property, for the
insolvency of the debtor resulting from such negligence. (1833a)

1. When demand to be made—only after judgment on the debt for obviously the exhaustion of the
principal’s property cannot even being to take place before judgment has been obtained
2. Actual demand has to be made—the fact that the guarantor was joined in a suit against the
principal debtor necessarily means that a demand has already been made upon him

DUTY OF THE GUARANTOR TO SET UP BENEFIT OF EXCUSSION

> It isn’t enough that the guarantor claims the benefit of excussion

> As soon as he is required to pay, he must also point out to


the creditor available property of the debtor within the Philippines
DUTY OF CREDITOR TO RESORT TO ALL LEGAL REMEDIES

> Failure to comply with duty of creditor would mean that he would suffer the loss but only to the
extent of the value of said property, for the insolvency of the debtor

JOINDER OF GUARANTOR AND PRINCIPAL AS PARTIES DEFENDANT

> The GENERAL RULE is that the guarantor, not being a joint
contractor with the principal, cannot be sued with his principal

> EXCEPTION: not required when it would serve merely to delay the ultimate accounting of the
guarantor

PROCEDURE WHEN CREDITOR SUES IN A GUARANTY

Art. 2062. In every action by the creditor, which must be


against the principal debtor alone, except in the cases mentioned in Article 2059, the former shall
ask the court to notify the guarantor of the action. The guarantor may appear so that he may, if
he so desire, set up such defenses as are granted him by law. The benefit of excussion mentioned
in Article 2058 shall always be unimpaired, even if judgment should be rendered against the principal
debtor and the guarantor in case of appearance by the latter. (1834a)

PROCEDURE WHEN CREDITOR SUES

1. SENT AGAINST PRINCIPAL—the creditor must sue the


principal alone. The guarantor cannot be sued together with his principal except when the
guarantor is not entitled to the benefit of excussion.

2. NOTICE TO GUARANTOR OF THE ACTION—the guarantor must be notified so that he may


appear, if he so desires, and set up the defenses he may want to offer
a. If the guarantor appears, he is still given the
benefit of excussion even if judgment is rendered against him and the principal debtor
b. If he doesn’t appear, he cannot set up the defenses which, by appearing, are allowed him by
law, and it may no longer be possible for him to question the validity of the judgment rendered
against the debtor

3. HEARING BEFORE EXECUTION CAN BE ISSUED AGAINST GUARANTOR

Art. 2063. A compromise between the creditor and the


principal debtor benefits the guarantor but does not
prejudice him. That which is entered into between the guarantor and the creditor benefits but
does not prejudice the principal debtor. (1835a)

COMPROMISE

> Contract whereby the parties, by asking reciprocal concessions, avoid a litigation or put an end
to one already commenced

EFFECTS OF COMPROMISE

1. Where prejudicial—a contract binds only the parties


thereto and not third persons. Hence, a compromise cannot prejudice the guarantor or the debtor,
as the case may be, when he is not a party to such compromise.

2. Where in the nature of the stipulation in favor of third person—however, even if the guarantor
or debtor is not a party to such compromise, the same can still benefit him
as it is in the nature of a stipulation in favor of a third person which the guarantor or debtor may
accept unless it has been revoked before his acceptance

BAILMENT
> Delivery of property of one person to another in trust for a specific purpose, with
a contract, express or implied, that the trust shall be faithfully executed and the property
returned or duly accounted for when the special purpose is accomplished or kept until the
bailor reclaims it

CREATION OF BAILMENT
> Generally, a bailment may be said to be a contractual relation
> To be legally enforceable, it must contain the essential elements of a valid contract
> It may also be created by operation of law

PARTIES TO A BAILMENT
1. Bailor—the giver; the party who delivers the possession or custody of the thing bailed
2. Bailee—the recipient; the party who receives the possession and custody of the thing
thus delivered
KINDS OF CONTRACTUAL BAILMENT
1. For the sole benefit of the bailor
a. Under this first kind belongs the gratuitous deposit and the mandatum
b. Mandatum—bailment of the goods without
recompense where the mandatory or person to
whom the property is delivered undertakes to do
some act with respect to the same; as simply to
carry it, or keep it, or otherwise to do something with respect to it gratuitously

2. For the sole benefit of the bailee


a. Commodatum and the simple loan or mutuum

3. For the benefit of both parties


a. Deposit for a compensation, involuntary deposit, pledge, bailments for hire

> The first two kinds are GRATUITOUS BAILMENTS—there is really no consideration for they
are considered more as a favor by one party to the party benefited
> The third kind usually results from bailments involving business transactions—MUTUAL-
BENEFIT BAILMENTS

KINDS OF BAILMENT FOR HIRE


> Bailment for hire arises when goods are left with the bailee
for some use or service by him and is always for some compensation.

1. Hire of things (locatio rei)—where goods are delivered for the temporary use of the hirer
2. Hire of service (locatio operis faciendi)—where goods are delivered for some work or
labor upon it by the bailee
3. Hire for carriage of goods (locatio operis mercium vehemdarum)—
where goods are delivered either to a
common carrier or to a private person for the person of being carried from place to place
4. Hire of custody (locatio custodae)—where goods are delivered for storage
PLEDGE
(ARTICLES 2085-2123)
PROVISIONS COMMON TO PLEDGE AND MORTGAGE

Art. 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. (1857)

Art. 2086. The provisions of Article 2052 are applicable to a pledge or mortgage. (n)

Art. 2087. It is also of the essence of these contracts that


when the principal obligation becomes due, the things in which the pledge or mortgage consists
may be alienated for the payment to the creditor. (1858)

PLEDGE

> Contract by virtue of which the debtor delivers to the


creditor or to a third person a movable, or document
evidencing incorporeal rights, for the purpose of securing
the fulfillment of a principal obligation with the
understanding that when the obligation is fulfilled, the
thing delivered shall be returned with all its fruits and accessions

KINDS OF PLEDGE

1. Voluntary or conventional
2. Legal

REQUISITES TO A CONTRACT OF PLEDGE

1. It be constituted to secure the fulfillment of a principal obligation


2. The pledgor be the absolute owner of the thing pledged
3. That the persons constituting the pledge have the free
disposal of the property and in the absence thereof, that they be legally authorized for the purpose
4. The pledge is perfected by the delivery of the thing pledged
5. When the principal obligation becomes due, the things,
which the pledge consists, may be alienated for the payment of the creditor.

CHARACTERISTICS OF A CONTRACT OF PLEDGE

1. Real contract—perfected by the delivery of the things


pledged by the debtor who is called the pledgor to the creditor who is called by the pledgee, or to
a third person by common agreement
2. Accessory contract
3. Unilateral contract
4. Subsidiary contract

WHAT IS THE CAUSE OR CONSIDERATION IN PLEDGE?

> Pledge is an accessory contract


> Its cause is the principal obligation

CONSTITUTED TO SECURE THE FULFILLMENT OF THE PRINCIPAL OBLIGATION

CONSTITUTED BY THE ABSOLUTE OWNER

1. Future property cannot be the subject of a pledge or mortgage


2. A pledge or mortgage executed by one who is not the
owner of the property pledged or mortgaged is without legal existence and registration cannot
validate it
3. Share in a co-ownership—shall be limited to the portion
which may be alienated by him in the division upon the termination of the co-ownership

What is the absolute owner? It means


unencumbered property. The absolute owner has legal and beneficial ownership. In the earlier
example, P is the legal owner and S is the beneficial owner. This being the case, neither of them can
pledge the property.

WHAT IS THE DIFFERENCE BETWEEN FREE DISPOSAL AND CAPACITY TO DISPOSE?

> FREE DISPOSAL OF THE PROPERTY—property must not be subject to any claim of a third person
> CAPACITY TO DISPOSE—pledgor or mortgagor has the capacity or authority to make a disposition
of the property

THING PLEDGED OR MORTGAGED MAY BE ALIENATED

> Necessarily implied as an inherent element of the transaction of the mortgage or pledge
> The only remedy for the pledgee is to have the security given sold at public auction and the
proceeds of the sale be applied to the payment of the obligation secured by the mortgage or
pledge

PLEDGOR OR MORTGAGOR MAY BE A THIRD PERSON

1. Accommodation pledge or mortgage


2. Duty of mortgagee to make proper inquiry
3. Where mortgage is gratuitous—same should be strictly construed
4. Liability for deficiency—pledgor not liable for any deficiency should the property be not sufficient to
cover the debt

Vous aimerez peut-être aussi