Académique Documents
Professionnel Documents
Culture Documents
Art. 2085. The following requisites are essential to the contracts of pledge and mortgage:
(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)
• Q: What is pledge?
o A: A contract where debtor delivers to creditor or 3rd person a movable or
document evidencing incorporeal right for the purpose of securing fulfillment
of a principal obligation with the understanding that when the obligation is
fulfilled, the thing delivered shall be returned w/ all its fruits and accessions.
Note: Registration is necessary to bind third persons but not for the validity of the contract.
Being an accessory contract, its consideration is one and the same as that of the principal
obligation.
Note: Indivisibility may be waived. Indivisibility only applies to the contracting parties.
o XPNs:
1. Where each one of several things guarantees determinate portion of the
credit
2. Where only a portion of the loan was released
3. Where there was failure of consideration
• Q: What are the obligations that can be secured by pledge, mortgage and antichresis?
o Constituted to secure the fulfillment of a valid principal obligation.
o Pledgor or mortgagor must be the absolute owner of the thing pledged or
mortgaged.
o They must have the free disposal of their property, and in the absence thereof,
that they be legally authorized for such purpose.
o Debtor retains ownership of the thing given as a security.
• Q: Is a third person who pledged and mortgaged his property liable for any
deficiency?
o GR: No.
o XPN: If the third party pledgor or mortgagor expressly agreed to be bound
solidarily with the principal debtor.
Note: Art. 559 – The possession of movable property acquired in good faith is equivalent to a
title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof,
may recover it from the person in possession of the same.
If the possessor of a movable lost or of which the owner has been unlawfully deprived, has
acquired it in good faith at a public sale, the owner cannot obtain its return without
reimbursing the price paid therefore.
PACTUM COMMISSORIUM
Note:
• What are prohibited are those stipulations executed or made simultaneously with the
original contract, and not those subsequently entered into.
• In pactum commissorium, the acquisition is automatic without need of any further
action. In the instant problem another act is required to be performed, namely, the
conveyance of the property as payment (dacion en pago).