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CHAPTER 1: INTRODUCTION
B.
ATTRIBUTES (CARP)
1.
1.
ADVANTAGES
Eliminates
the
bureaucratic
process common in corporations
where the board of directors
must sit as a body to have a
valid transaction. The proprietor
makes his own decisions and
can act without delay.
Proprietor owns all the profits
without having to share the
same
2.
DISADVANTAGES
Unlimited personal liability of the
2.
proprietor
3.
Capital
is
limited
by
the 4.
proprietors personal resources
Corporations
ventures
may
enter
joint ISSUE: WON Rural Bank of Labason, Inc. being an artificial person
should be awarded moral damages?
A.
1.
2.
DEFINITION
3.
Sec. 2. Corporation Defined A corporation is an artificial being
created by operation of law, having the right of succession and the
powers, attributes and properties expressly authorized by law or 4.
5.
6.
7.
D.
1.
2.
3.
4.
5.
6.
7.
8.
GOVERNMENT
CORPORATIONS
POWERS
IN
RELATION
TO
CORPORATIONS
CHARTER
CREATED
BY
SPECIAL
LAW
OR
1.
Sec. 4. Corporations created by special laws or charters. Corporations created by special laws or charters shall be governed
primarily by the provisions of the special law or charter creating them It is to be observed, however, that the mere fact that the
or applicable to them, supplemented by the provisions of this Code, undertaking in which a corporation is engaged in is one which the
State itself might enter into as part of its public work does not
insofar as they are applicable.
make it a public one. Nor is the fact that the State has granted
property or special privileges to a corporation render it public.
Likewise, the fact that some or all of the stocks in the corporation
Among these corporations created by special law are the
are held by the government does not make it a public corporation.
Philippine National Oil Company, the National Development
Company, the Philippine Export and Foreign Loan Guarantee
Corporation and the GSIS. All these are government owned or
The TRUE TEST to determine the nature of a corporation is found
controlled, operating under a special law or charter such that
in the relation of the body to the State. Strictly speaking, a
registration with the SEC is not required for them to acquire legal
public corporation is one that is created, formed or organized for
and juridical personality. They owe their own existence as such
political or governmental purposes with political powers to be
not by virtue of their compliance with the requirements of
exercised for purposes connected with the public good in the
registration under the Corporation Code but by virtue of the law
administration of the civil government.
specially creating them.
They are primarily governed by the special law creating them. But
unless otherwise provided by such law, they are not immune from
suits, it is thus settled that when the government engages in a
particular business through the instrumentality of a corporation, it
divests itself pro hoc vice of its sovereign character so as to
subject itself to the rules governing private corporations (PNB vs.
Pabolar 82 SCRA 595)
5.
QUASI-PUBLIC CORPORATIONS
PROMOTIONAL STAGE
PROCESS OF INCORPORATION
PREFATORY PARAGRAPH
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KNOW ALL MEN BY THESE PRESENTS:
The undersigned incorporators, all of legal age and a
majority of whom are residents of the Philippines, have
this day voluntarily agreed to form a (stock) (non-stock)
corporation under the laws of the Republic of the
Philippines
xxx
xxx
AND WE HEREBY CERTIFY:
FIRST: That the name of said corporation shall be
".............................................., INC. or CORPORATION";
4.
5.
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The name of the corporation is essential to its existence since it is
through it that it can act and perform all legal acts. Each
corporation should therefore, have a name by which it is to sue
and be sued and do all legal acts.
A corporation, once formed, cannot use any other name, unless it
has been amended in accordance with law as this would result in
confusion and may open the door to fraud and evasion as well as
difficulties of administration and supervision.
Thus, the organizers must make sure that the name they intend to
use as a corporate name is not similar or confusingly similar
to any other name already registered and protected by law since
the SEC would refuse registration if such be the case.
6.
7.
8.
9.
10.
13.
2.
3.
14.
15.
1 http://www.disini.ph/res_sec__mc142000.html
c.
The fact that there are other companies engaged in other lines of
business using the word "PHILIPS" as part of their corporate
names is no defense and does not warrant the use by Private
Respondent of such word which constitutes an essential feature of
Petitioners' corporate name previously adopted and registered
and-having acquired the status of a well-known mark in the
Philippines and internationally as well (Bureau of Patents Decision
No. 88-35 [TM], June 17, 1988, SEC Records).
PURPOSE CLAUSE
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SECOND: That the purpose or purposes for which such
corporation is incorporated are: (If there is more than one
purpose, indicate primary and secondary purposes);
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The statement of the objects or purpose or powers in the charter
results practically in defining the scope of authority of the
corporate enterprise or undertaking. This statement both congers
and also limits the actual authority of the corporate
representatives.
The reasons for requiring a statement of the purposes or
objects:
1. In order that the stockholder who contemplates on an
investment in a business enterprise shall know within what lines
of business his money is to be put at risks;
2. So that the board of directors and management my now
within what lines of business they are authorized to act; and
3. So that anyone who deals with the company may ascertain
whether a contract or transaction into which he contemplates
entering is one within the general authority of the management.
SECONDARY PURPOSE: Although the Corporation Code does not
restrict nor limit the number of purpose or purposes which a
corporation may have, Sec. 14 thereof, requires that if it has more
than one purpose, the primary purpose as well as the secondary
ones must be indicated therein.
PROHIBITION: The following are prohibited by special laws for
having any other purpose not peculiar to them:
1. Educational, religious, and other non-stock corporations cannot
include any other purpose which would change or contradict its
nature or to engage in any enterprise to make profits for is
members;
2. Insurance companies cannot engage in commercial banking at
the same time, and vice-versa; and
3. Stock brokers can have no other line of business not peculiar to
them.
RESTRICTIONS AND/OR ADDITIONAL REQUIREMENTS:
1. As a general rule, the purpose or purposes must be lawful.
Hence, the SEC is duty bound to determine the legality of the
corporate purpose/s before it issues the certificate of registration;
2. A corporation may not be formed for the purpose of practicing a
profession like law, medicine or accountancy, either directly or
indirectly. These are reserved exclusively for professional
partnerships;
3. The retail trade, where the corporate capital is less than $2.5M,
or its peso equivalent are reserved exclusively for Filipinos, or for
corporations or partnerships wholly owned by such citizen.
4. As a general rule, corporations with foreign equity are not
allowed to engage in restaurant business but corporations with
such foreign equity can purse such undertaking if it is incidental or
PRINCIPAL OFFICE
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Oro.
ISSUE: WON the action will prosper?
HELD: No. The action was based on tort and not upon a written
contract and as such, under the Rules of Court, it should be filed
in the municipality where the defendant or any of the defendants
resides or may be served with summons.
Settled is the principle in corporation law that the residence of a
corporation is the place where the principal office is
established. Since it is not disputed that CRS has its principal
office in Manila, it follows that the suit against it may properly be
filed in the City of Manila.
The fact that CRS maintains branch office in some parts of the
country does not mean that it can be sued in any of these places.
To allow such would create confusion and work untold
inconveniences to the corporation.
e.
TERM OF EXISTENCE
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INCORPORATORS
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FIFTH: That the names, nationalities and residences of the
incorporators of the corporation are as follows:
NAME
.....................
.....................
.....................
.....................
.....................
NATIONALITY
.............................
.............................
.............................
.............................
.............................
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RESIDENCE
............................
............................
............................
............................
............................
as originally forming and composing the corporation and who are private corporation. EXCEPTIONS:
signatories thereof.
1. Educational corporations registered as non-stock corporations
whose number of trustees, though not less than 5 and not more
Corporators in a stock corporation are called stockholders or than 15 should be divisible by 5.
shareholders. Corporators in a non-stock corporation are called 2. In close corporations where all stockholders are considered as
members of the board of directors (Sec. 97) thereby effectively
members.
allowing 20 members in the board.
CORPORATORS apply to all who compose the corporation at any
given time and need not be among those who executed the AOI at
the start of its formation or organization.
INCORPORATORS are those mentioned in the AOI as originally
forming the corporation and who are signatories in the AOI.
An incorporator may be considered as a corporator as long as he
continues to be a stockholder or a member, but not all corporators
are incorporators.
QUALIFICATIONS OF INCORPORATORS:
1. Must be natural persons. It implies that a corporation or a
partnership cannot become incorporators. EXCEPTION: (1)
cooperatives; (2) corporations primarily organized to hold equities
in rural banks and may rightfully become incorporators thereof. It
must be noted likewise that the law does not preclude firms and
other entities from becoming stockholders or subscribers to the
shares of a stock corporation. Thus, while they cannot qualify as
incorporators, they can become corporators or stockholders.
2. Of Legal Age. Minors cannot be incorporators. They may,
however, become stockholders provided they are legally
represented by parents, guardians or administrators.
3. Must own at least 1 share.
4. Majority must be residents of the Philippines. The law does not
provide for citizenship requirements. EXCEPT: in certain areas of
activity or industry wherein ownership of shares of stock are
reserved wholly or partially to Filipino citizens. Hence, all
incorporators may be foreigners provided majority of them are
residents. Note that the requirement is residence and not
citizenship.
g.
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SIXTH: That the number of directors or trustees of the
corporation shall be............; and the names, nationalities
and residences of the first directors or trustees of the
corporation are as follows:
NATIONALITY
.............................
.............................
.............................
.............................
.............................
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DIRECTORS/TRUSTEES
NAME
.....................
.....................
.....................
.....................
.....................
RESIDENCE
............................
............................
............................
............................
............................
11
Amount Subscribed
..............................
Total Paid-Up
..................
..............................
..................
..............................
..................
..............................
..................
..............................
..................
CAPITALIZATION
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SEVENTH: That the authorized capital stock of the
corporation is................................................
(P......................) PESOS in lawful money of the
Philippines, divided into.............. shares with the par
value of.................................. (P.......................) Pesos
per share.
(In case all the share are without par value):
12
Nationality
No of Shares
Amount
..............
................ .....................
..............
................ .....................
..............
................ .....................
..............
................ .....................
..............
................ .....................
Sec. 62. Consideration for stocks. - Stocks shall not be issued for
a consideration less than the par or issued price thereof.
Consideration for the issuance of stock may be any or a combination
of any two or more of the following:
1. Actual cash paid to the corporation;
2. Property, tangible or intangible, actually received by the
corporation and necessary or convenient for its use and lawful
purposes at a fair valuation equal to the par or issued value of the
stock issued;
3. Labor performed for or services actually rendered to the
corporation;
4. Previously incurred indebtedness of the corporation;
5. Amounts transferred from unrestricted retained earnings to stated
capital; and
6. Outstanding shares exchanged for stocks in the event of
reclassification or conversion.
Where the consideration is other than actual cash, or consists of
intangible property such as patents of copyrights, the valuation
thereof shall initially be determined by the incorporators or the board
of directors, subject to approval by the Securities and Exchange
Commission.
Shares of capital stock issued without par value shall be deemed fully PREFERRED STOCK is a stock that gives the holder preference
over the holder of common stocks with respect to the payment of
paid and non-assessable and the holder of such shares shall not be
13
a. PREFERENCE AS TO DIVIDENDS
They have the privilege of being paid dividends first before any
other stockholders are paid theirs. The guaranty is not absolute so
as to create a relation of debtor and creditor between the
corporation and the holders of such stock. The amount of
preference is stated in the contract of subscription and is usually a
fixed percentage or by specified amount indicated therein.
Participating and Non-Participating Preferred Shares
Par Value Shares are those whose values are fixed in the AOI. Its
par value is the minimum subscription or original issue price of
the shares and indicates the amount which the original
subscribers are supposed to contribute to the capital, which,
however, may not reflect the true value of the shares because the
same may fluctuate depending on the liability and networth of the
enterprise.
Watered Stocks are those issued at less than par value where the
stockholders will remain liable for the difference between what he
paid and the actual par value thereof (Sec. 65).
No Par Value Shares are those whose issued price are not stated
in the certificate of stock but may be fixed in the AOI, or by the
BOD when so authorized the articles or the by-laws, or in the
absence thereof, the stockholders themselves. They do not
purport to represent ay stated proportionate interest in the capital
measured by value, but only an aliquot part of the whole number
of shares of the corporation issuing it.
The Code allows the issuance of no par value shares, subject to
the following limitations provided in Sec. 6:
1. Such shares once issued, are deemed fully paid and thus, nonassessable;
2. The consideration for its issuance should not be less than P5;
3. The entire consideration constitutes capital, hence, not
available for dividend declaration;
4. They cannot be issued as preferred stock; and
5. They cannot be issued by banks, trust companies, insurance
companies, public utilities and building and loans associations.
Advantages of no-par value shares:
1. Flexibility in price no par shares may be issued from time to
time at different prices with the exception only that it shall not be
issued at less than P5;
2. The issuance thereof practically results to the evasion of the
danger of liability upon watered stock in case of overvaluation of
the consideration paid for it;
3. There is a disappearance of personal liability on the part of the
holder for unpaid subscription since they are already deemed fully
paid and non-assessable.
VOTING AND NON-VOTING SHARES
Voting shares as the name suggests, gives the holder thereof the
right to vote and participate in the management of the
corporation, through the election of the BOD, or in any matter
requiring stockholders approval.
14
vote. But, even if denied such right, they may still vote on the
following matters:
1. Amendment of the articles of incorporation;
2. Adoption and amendment of by-laws;
3. Sale, lease, exchange, mortgage, pledge or other disposition of
all or substantially all of the corporate property;
4. Incurring, creating or increasing bonded indebtedness;
5. Increase or decrease of capital stock;
6. Merger or consolidation of the corporation with another
corporation or other corporations;
7. Investment of corporate funds in another corporation or
business in accordance with this Code; and
8. Dissolution of the corporation
FOUNDERS SHARES are shares issued to the founders of the
corporation which are granted certain right and privileges such as
the exclusive right to vote and be voted for in the election of
directors.
Sec. 7. Founders' shares. - Founders' shares classified as such in
the articles of incorporation may be given certain rights and
privileges not enjoyed by the owners of other stocks, provided that
where the exclusive right to vote and be voted for in the election of
directors is granted, it must be for a limited period not to exceed five
(5) years subject to the approval of the Securities and Exchange
Commission. The five-year period shall commence from the date of
the aforesaid approval by the Securities and Exchange Commission.
The period of 5 years is non-extendable because it may result in
the almost perpetual disqualification of other stockholders to elect
or be elected as members of the BOD resulting to the lack of
proper representation thereat.
REDEEMABLE SHARES are those subject to redemption as may
be provided in the subscription contract, which are usually
attached to preferred shares and other debt securities like bonds.
Sec. 8. Redeemable shares. - Redeemable shares may be issued
by the corporation when expressly so provided in the articles of
incorporation. They may be purchased or taken up by the corporation
upon the expiration of a fixed period, regardless of the existence of
unrestricted retained earnings in the books of the corporation, and
upon such other terms and conditions as may be stated in the articles
of incorporation, which terms and conditions must also be stated in
the certificate of stock representing said shares
These types of shares grants the corporation the right to
repurchase the shares at its option or at the option of the holder
based on the face or issued value plus specified premium, such
redemption may be optional or mandatory at a fixed or future
date.
Such repurchase may also be made regardless if there are
unrestricted retained earnings. (see Power to Acquire Own
Shares)
TREASURY SHARES
Sec. 9. Treasury shares. - Treasury shares are shares of stock
which have been issued and fully paid for, but subsequently
reacquired by the issuing corporation by purchase, redemption,
donation or through some other lawful means. Such shares may again
be disposed of for a reasonable price fixed by the board of directors.
Treasury shares, as provided in Sec. 9, are reacquired but not
retired. They may be issued for a price, even less than par, and
the purchaser will not be liable to the creditors of the corporation
for the difference of the purchase price and its par value. They
may also be declared as dividends since they are properties of the
corporation.
15
Such shares do not have the right to share in dividends nor the
right to vote.
COMMISSIONER OF INTERNAL REVENUE VS. MANNING (66
SCRA 14; Aug. 6, 1975) Julius Reese owned 24,700 of the 25,000
authorized capital stock of Manta Trading and Supply Co., the rest
are owned by herein respondents. Upon Reese death, his shares
was held in trust by the law firm Ross, Carrascoso and Janda for
the private respondent, who were to continue management of the
corporation. These shares considered by the respondents as
treasury shares, prior to full payment, were declared as stock
dividends. Such declaration was assessed by the BIR as
distribution of assets subject to income tax.
ISSUE: WON the subject shares are treasury shares?
HELD: No. Treasury shares are stocks issued and fully paid
for and reacquired by the corporation either by purchase,
donation, forfeiture or other means and do not have the
status of outstanding shares. They may be re-issued or
sold again and while held by the company participates
neither in dividends, because dividends cannot be
declared by the corporation to itself, nor in meeting of the
corporation as voting stock for otherwise equal
distribution of voting powers among stockholders will be
effectively lost and the directors will be able to perpetuate
their control of the corporation, though it still represent a
paid for interest in the property of the corporation. These
features of a treasury stock are lacking in the questioned shares.
In this case, and under the terms of the trust agreement, the
shares of stock of Reese participated in dividends which the
trustee received and the said shares were voted upon by the
trustee in all corporate meetings. They were not, therefore,
treasury shares. The 24,700 shares were outstanding shares of
Reeses estate until they were fully paid. Such being the case,
their declaration as treasury stock dividend was a complete
nullity.
CAPITAL REQUIREMENTS
Sec. 12. Minimum capital stock required of stock
corporations. - Stock corporations incorporated under this Code
shall not be required to have any minimum authorized capital stock
except as otherwise specifically provided for by special law, and
subject to the provisions of the following section
Sec. 13. Amount of capital stock to be subscribed and paid
for the purposes of incorporation. - At least twenty-five percent
(25%) of the authorized capital stock as stated in the articles of
incorporation must be subscribed at the time of incorporation, and at
least twenty-five (25%) per cent of the total subscription must be
paid upon subscription, the balance to be payable on a date or dates
fixed in the contract of subscription without need of call, or in the
absence of a fixed date or dates, upon call for payment by the board
of directors: Provided, however, That in no case shall the paid-up
capital be less than five Thousand (P5,000.00) pesos
From the above provisions, it can be said that there is no
minimum capital requirement in order that a corporation may be
duly incorporated except in special cases and provided that at
least P5,000 should be paid-in, which effectively would make the
P5,000 the minimum capital requirement.
The 25% minimum paid-in capital can be paid by any shareholder,
meaning that it is not particularly required that each subscriber
pay 25% of their subscription.
There are instances where the SEC, by virtue of an existing law,
rules and regulations or policies, requires the payment of more
than the amount provided in the Code, such as Financing
THE TREASURER
xxx
TENTH: That...................................... has been elected by
the subscribers as Treasurer of the Corporation to act as
such until his successor is duly elected and qualified in
accordance with the by-laws, and that as such Treasurer,
he has been authorized to receive for and in the name and
for the benefit of the corporation, all subscription (or fees)
or contributions or donations paid or given by the
subscribers or members.
xxx
k.
m. TREASURERS AFFIDAVIT
xxx
TREASURER'S AFFIDAVIT
REPUBLIC OF THE PHILIPPINES )
CITY/MUNICIPALITY OF ) S.S.
PROVINCE OF )
I,..................................., being duly sworn, depose and
say:
That I have been elected by the subscribers of the
corporation as Treasurer thereof, to act as such until my
successor has been duly elected and qualified in
accordance with the by-laws of the corporation, and that
as such Treasurer, I hereby certify under oath that at least
25% of the authorized capital stock of the corporation has
been subscribed and at least 25% of the total subscription
has been paid, and received by me, in cash or property, in
the amount of not less than P5,000.00, in accordance with
the Corporation Code.
.......................................
(Signature of Treasurer)
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n.
NOTARIAL ACKNOWLEDGMENT
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SUBSCRIBED AND SWORN to before me, a Notary Public,
for and in the City/Municipality of.................................
Province of........................................., this............ day
of........................, 19.......; by...........................................
with Res. Cert. No..................... issued at................
on....................., 19.........
NOTARY PUBLIC
My commission expires on.........................., 19.......
NO TRANSFER CLAUSE
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ELEVENTH: (Corporations which will engage in any
business or activity reserved for Filipino citizens shall
provide the following):
"No transfer of stock or interest which shall reduce the
ownership of Filipino citizens to less than the required
percentage of the capital stock as provided by existing
laws shall be allowed or permitted to recorded in the
proper books of the corporation and this restriction shall
be indicated in all stock certificates issued by the
corporation."
xxx
This indicates the treasurer who has been elected as such until his
successor has been elected and qualified and who is authorized to
receive for and in the name of the corporation all subscriptions,
contributions or donations paid or given by the subscribers or
members.
Doc. No...............;
Page No...............;
Book No..............;
Series of 19.....
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GROUNDS FOR DISAPPROVAL
Sec. 17. Grounds when articles of incorporation or
amendment may be rejected or disapproved. - The Securities
and Exchange Commission may reject the articles of incorporation or
disapprove any amendment thereto if the same is not in compliance
with the requirements of this Code: Provided, That the Commission
shall give the incorporators a reasonable time within which to correct
or modify the objectionable portions of the articles or amendment.
The following are grounds for such rejection or disapproval:
l.
16
The above grounds are not exclusive. There may be other reasons
for rejection or disapproval such as the corporate name is not
legally permissible or that the minimum capital requirement is not
sufficient.
3.
1.
17
DE FACTO CORPORATIONS
CORPORATION BY ESTOPPEL
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19
At the trial of the case the plaintiff failed to prove affirmatively the
corporate existence of the parties and the appellant insists that
under these circumstances the court erred in finding that the
parties were corporations with juridical personality and assigns
same as reversible error.
WHO SHOULD BEAR THE LOSS: The better view is that those
who actively participated in holding out the association as a
corporation should be held personally liable by virtue of the
express provision of Sec. 21 which provides that all persons who
assume to act as a corporation knowing it to be without
authority to do so shall be liable as general partners for all
debts, liabilities and damages incurred or arising therefrom.
4.
a.
CORPORATE ORGANIZATION
GEORG GROTJAHN GMBH & CO. VS. ISNANI (235 SCRA 216;
Aug. 10, 1994) Petitioner is a German company who was
granted a license to establish a regional or area headquarters in
the Philippines. Private respondent Romana Lanchinebre was a
sales representative of petitioner who made advances totalling
P35,000 which were left unpaid. Petitioner filed a complaint for
the collection of a sum of money which was dismissed by the
judge holding, among others, that the license of petitioner does
not include the license to do business in the Philippines.
ISSUE: WON petitioner has capacity to sue?
HELD: Yes. Private respondent is estopped from assailing the
personality of petitioner. The rule is that the party is estopped to
challenge the personality of a corporation after having
acknowledged the same by entering into a contract with it. And
the doctrine of estoppel to deny corporate existence applies to
foreign as well as domestic corporation; one who has dealt with a
corporation of foreign origin as a corporate entity is estopped to
deny its corporate existence and capacity. The principle will be
applied to prevent a person contracting with a foreign corporation
from later taking advantage of its non-compliance with the
statutes chiefly in case where such person has received the
benefits of the contract (Merill Lynch Futures, Inc. vs. CA).
In the case of Merill Lynch Futures, the SC held that a foreign
corporation doing business in the Philippines may sue in Philippine
courts although not authorized to do business here against the
Philippine citizen who had contracted with and been benefited by
said corporation. Citing and applying the doctrine laid down in
Asia Banking Corp. vs. Standard Products Co., Inc.
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COMMENCEMENT OF BUSINESS/TRANSACTION
CORPORATE CHARTER
On the other hand, the corporation is not likewise liable for the
debts, obligations or liabilities of its stockholders. Neither may it
properties be made answerable to satisfy the claim of creditors
against its stockholders or member even if the stockholder
concerned is its president.
The most that can be said is that they benefited from the services,
but that surely is no justification to hold them personally liable
therefor. Otherwise, all other stockholders of the corporation,
including those who came in later, and regardless of the amount
of their stockholdings would be equally and personally liable also
21
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by:
(Sgd.) Erlinda V. Acosta
BIENVENIDO E. ACOSTA Director,
Official Representative
(Sgd.) A. Macadangdang
A.G. MACADANGDANG
Manager
ISSUE: WON petitioners are liable?
HELD: No. We cannot accept the conclusion that the official
designations of petitioners were written on the document merely
as meaningless and hollow decorations or as mere descripto
personae without any relevance to the liability of the corporation
these officers obviously represented. Indeed, taking in conjunction
with the other obtaining circumstances, the receipt discloses the
capacity by which the petitioners entered into the deal with
private respondent.
The subject receipt itself states that the conditions contained
therein were between the private respondent and the
Association. The lower court held that the Association referred
only to the signatories. We disagree. It is quite plain and we are
convinced that the Association is none other than the Bacarra
(I.N.) Facoma, Inc. which is a farmers cooperative marketing
association. Not only that , we cannot find any cogent reason why
the petitioners used the word Association when they could have
more easily and conveniently placed the undersigned or words
to the same effect in its stead.
In light of the foregoing, it is clear that the liability of the
petitioners under the document subject of the instant case is not
personal but corporate, and therefore attached to the Bacarra
(I.N.) Facoma, Inc. which being a corporation, has a personality
distinct and separate from that of the petitioners who are only its
officers. It is the general rule that the protective mantle of
a corporations separate and distinct personality could
only be pierced and liability attached directly to its officers
and/or member-stockholders, when the same is used for
fraudulent, unfair or illegal purpose.
C.
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24
25
26
Co., Inc. were located in the same building, in the same floor, and
in the same room. This is further shown by the fact that the funds
of the corporation were kept by Cirilio Paredes in his own name.
The corporation itself had no visible assets, as correctly found by
the trial court, except perhaps the toll house, the wire fence
around the lot and the signs thereon It was for this reason that the
judgment against it could not be fully satisfied.
While the mere ownership of all or nearly all of the capital
stock of a corporation does not necessarily mean that it is
a mere business conduit of the stockholder, that
conclusion is amply unjustified where it is shown, as in
this case before us, that the operations of the corporation
were so merged with the stockholders as to be practically
indistinguishable from them. To hold the latter liable for the
corporations obligations is not to ignore the corporations
separate entity, but merely to apply the established principle that
such entity cannot be invoked or used for purposes that could not
have been intended by the law that created the separate
personality.
TAN BOON BEE & CO., INC., petitioner,
vs.
THE HONORABLE HILARION U. JARENCIO, PRESIDING JUDGE
OF BRANCH XVIII of the Court of First Instance of Manila, GRAPHIC
PUBLISHING, INC., and PHILIPPINE AMERICAN CAN DRUG
COMPANY, respondents
(GR No. L-41337; 163 SCRA 205; June 30, 1988)
FACTS: For failure of private respondent Graphic Publishing Inc. to
pay paper products purchased from petitioner (doing business
under the name and style Anchor Supply, Inc.), petitioner filed a
complaint in the CFI of Manila. A writ of Execution was issued
levying a printing machine which private respondent Philippine
American Drug Company claimed as its own. PADCO filed a third
party claim and asked the court to nullify the auction sale already
conducted, which herein respondent judge granted.
ISSUE: WON the respondent judge should be upheld?
HELD: No. It is true that a corporation, upon coming into being, is
invested by law with a personality separate and distinct from that
of the persons composing it as well as from any other legal entity
to which it may be related. As a matter of fact, the doctrine that a
corporation is a legal entity distinct and separate from the
members and stockholders who compose it is recognized and
respected in all cases which are within reason and the law.
However, this separate and distinct personality is merely a
fiction created by law for convenience and to promote
justice. Accordingly, this separate personality of the
corporation may be disregarded, or the veil of corporate
fiction pierced, in cases where it is used as a cloak or
cover for fraud or illegality, or to work an injustice, or
where necessary to achieve equity or when necessary for
the protection of creditors. Corporations are composed of
natural persons and the legal fiction of a separate
corporate personality is not a shield for the commission of
injustice and inequity. Likewise, this is true when the
corporation is merely an adjunct, business conduit or
alter-ego of another corporation. In such case, the fiction
of separate and distinct corporate entities should be
disregarded.
In the instant case, petitioners evidence established that PADCO
never engaged in the printing business; that the BOD and the
officers of PADCO and Graphic are the same; and that PADCO
holds 50% share of stock of Graphic. The printing machine in
question was in the premises of Graphic, long before PADCO even
acquired its alleged title from Capitol Publishing.
Considering the above, respondent judge should have pierced
PADCOs veil of corporate identity.
CEASE VS. CA (93 SCRA 483; Oct. 18, 1979) Forrest L. Cease is
the common predecessor-in-interest of the parties. He and other
27
WHEN PIERCING
JUSTIFIED
1
THE
CORPORATE
FICTION
IS
NOT
d
e
f
g
h
2
3
Defend crime;
Confuse legitimate issues;
Circumvent the law;
Perpetuate deception; or
An alter-ego, adjunct or business conduit for the sole
benefit of a stockholder or a group of stockholders or
another corporation.
The wrong doing must be clearly and convincingly
established. It cannot be justified by speculation and can
never be presumed.
The petitioner must seek to impose a claim against the
stockholders or officers directly liable, otherwise piercing the
veil of corporate fiction would not be available nor justified.
28
29
30
When to take effect? (1) Upon approval by the SEC; or (2) From
the date of filing if not acted upon within 6 months for a cause not
attributed to the corporation (does not apply to increasing or
decreasing the capital stock or shortening the corporate term,
which shall require the approval of the SEC [Sec. 38 and 120])
SPECIAL AMENDMENTS
Sec. 37.Power to extend or shorten corporate term. - A private
corporation may extend or shorten its term as stated in the articles of
incorporation when approved by a majority vote of the board of
directors or trustees and ratified at a meeting by the stockholders
representing at least two-thirds (2/3) of the outstanding capital stock
or by at least two-thirds (2/3) of the members in case of non-stock
corporations. Written notice of the proposed action and of the time
and place of the meeting shall be addressed to each stockholder or
member at his place of residence as shown on the books of the
corporation and deposited to the addressee in the post office with
postage prepaid, or served personally: Provided, That in case of
extension of corporate term, any dissenting stockholder may exercise
his appraisal right under the conditions provided in this code.
Sec. 38. Power to increase or decrease capital stock; incur,
create or increase bonded indebtedness. - No corporation shall
increase or decrease its capital stock or incur, create or increase any
bonded indebtedness unless approved by a majority vote of the board
of directors and, at a stockholder's meeting duly called for the
purpose, two-thirds (2/3) of the outstanding capital stock shall favor
the increase or diminution of the capital stock, or the incurring,
creating or increasing of any bonded indebtedness. Written notice of
the proposed increase or diminution of the capital stock or of the
incurring, creating, or increasing of any bonded indebtedness and of
the time and place of the stockholder's meeting at which the
proposed increase or diminution of the capital stock or the incurring
or increasing of any bonded indebtedness is to be considered, must
be addressed to each stockholder at his place of residence as shown
on the books of the corporation and deposited to the addressee in the
post office with postage prepaid, or served personally.
the corporation and the other shall be filed with the Securities and
Exchange Commission and attached to the original articles of
incorporation. From and after approval by the Securities and
Exchange Commission and the issuance by the Commission of its
certificate of filing, the capital stock shall stand increased or
decreased and the incurring, creating or increasing of any bonded
indebtedness authorized, as the certificate of filing may declare:
Provided, That the Securities and Exchange Commission shall not
accept for filing any certificate of increase of capital stock unless
accompanied by the sworn statement of the treasurer of the
corporation lawfully holding office at the time of the filing of the
certificate, showing that at least twenty-five (25%) percent of such
increased capital stock has been subscribed and that at least twentyfive (25%) percent of the amount subscribed has been paid either in
actual cash to the corporation or that there has been transferred to
the corporation property the valuation of which is equal to twenty-five
(25%) percent of the subscription: Provided, further, That no decrease
of the capital stock shall be approved by the Commission if its effect
shall prejudice the rights of corporate creditors.
Non-stock corporations may incur or create bonded indebtedness, or
increase the same, with the approval by a majority vote of the board
of trustees and of at least two-thirds (2/3) of the members in a
meeting duly called for the purpose.
Bonds issued by a corporation shall be registered with the Securities
and Exchange Commission, which shall have the authority to
determine the sufficiency of the terms thereof.
SEC. 37&38 vs. SEC. 16:
1. In the former a meeting of the stockholders would be
REQUIRED, unlike in Sec. 16, where the written assent would
suffice.
2. Former requires the approval of the SEC.
NOTE: When the amendment of the corporate charter involves
shortening the life of the corporation with the effect of dissolution,
Sec. 120 would apply, requiring approval by the SEC.
A certificate in duplicate must be signed by a majority of the directors GROUNDS FOR DISAPPROVAL OF AMENDMENT
of the corporation and countersigned by the chairman and the
Sec. 17. Grounds when articles of incorporation or
secretary of the stockholders' meeting, setting forth:
amendment may be rejected or disapproved. - The Securities
and Exchange Commission may reject the articles of incorporation or
(1) That the requirements of this section have been complied with;
disapprove any amendment thereto if the same is not in compliance
(2) The amount of the increase or diminution of the capital stock;
with the requirements of this Code: Provided, That the Commission
(3) If an increase of the capital stock, the amount of capital stock or
shall give the incorporators a reasonable time within which to correct
number of shares of no-par stock thereof actually subscribed, the
or modify the objectionable portions of the articles or amendment.
names, nationalities and residences of the persons subscribing, the
The following are grounds for such rejection or disapproval:
amount of capital stock or number of no-par stock subscribed by
each, and the amount paid by each on his subscription in cash or
1. That the articles of incorporation or any amendment thereto is not
property, or the amount of capital stock or number of shares of nosubstantially in accordance with the form prescribed herein;
par stock allotted to each stock-holder if such increase is for the
purpose of making effective stock dividend therefor authorized;
2. That the purpose or purposes of the corporation are patently
(4) Any bonded indebtedness to be incurred, created or increased;
unconstitutional, illegal, immoral, or contrary to government rules
(5) The actual indebtedness of the corporation on the day of the
and regulations;
meeting;
(6) The amount of stock represented at the meeting; and
3. That the Treasurer's Affidavit concerning the amount of capital
(7) The vote authorizing the increase or diminution of the capital
stock subscribed and/or paid if false;
stock, or the incurring, creating or increasing of any bonded
indebtedness.
4. That the percentage of ownership of the capital stock to be owned
by citizens of the Philippines has not been complied with as required
Any increase or decrease in the capital stock or the incurring, creating
by existing laws or the Constitution.
or increasing of any bonded indebtedness shall require prior approval
of the Securities and Exchange Commission.
No articles of incorporation or amendment to articles of incorporation
of banks, banking and quasi-banking institutions, building and loan
One of the duplicate certificates shall be kept on file in the office of
associations, trust companies and other financial intermediaries,
31
32
33
A.
OF
POWERS
OF
CORPORATE
34
can be inferred that this body was then cognizant that the offer
had already been accepted. It is not, however, necessary to find
the judgment of the stockholder proceedings, even if the
assumption is that they did not approve of the contract.
Both upon the principle and authority it is clear that the action
of the stockholders, whatever its character, must be
ignored. The theory of a corporation is that the stockholders
may have all the profits but shall turn over the complete
management of the enterprise to their representatives
and agents, called directors. Accordingly, there is little for the
stockholders to do beyond electing directors, making by-laws, and
exercising certain other special powers defined by law. In
conformity with this idea, it is settled that contract between a
corporation and third person must be made by the director
and not by the stockholders. The corporation, in such matters,
is represented by the former and not by the latter. It results that
where a meeting of the stockholders is called for the purpose of
passing on the propriety of making a corporate contract, its
resolutions are at most advisory and not in any wise binding on
the board.
BARRETO VS. LA PREVISORY FILIPINA (57 Phil. 649; Dec. 8,
1932) Petitioners, directors of respondent up to March 1929,
sought to recover 1% (to each plaintiff) of the profits of the
company for the year 1929, under and in accordance with an
amendment to the by-laws which was made at the general
meeting of the stockholders on Feb. 1929, to which the lower
court rendered in their favor.
ISSUE: WON the amendment has a binding effect as to grant
plaintiffs claim?
HELD: No. Sec. 20 of the Corporation Law limits the authority of a
corporation to adopt by-laws which are not consistent with the
provisions of the law. The appellees contend that the articled in
question is merely a provision of the compensation of directors
which is not only consistent with but expressly authorized by Sec.
21 of the Corporation Law.
We cannot agree with this contention. The authority conferred
upon corporations in that section refers only to providing
compensation for the future services of directors, officers, and
employees thereof after the adoption of the by-law or other
provisions in relation thereto, and cannot in any sense be held to
authorize the giving, as in this case, of continuous compensation
to particular directors after their employment has terminated for
part services rendered gratuitously by them to the corporation. To
permit the transaction involved in this case would be to create an
obligation unknown to law, and to countenance a misapplication
of the funds of the defendant building and loan association to the
prejudice of the substantial rights of its shareholders.
Irrespective of the above, the conclusion is the same. The article
which the appellees rely upon is merely a by-law provision
adopted by the stockholders of the defendant corporation, without
any action having been taken in relation thereto by its board of
directors. The law is settled that contracts between a
corporation and third person must be made by or under
the authority of its board of directors and not by its
stockholders. Hence, the action of the stockholders in such
matters is only advisory and not in any wise binding on the
corporation. There could not be a contract without mutual
consent, and it appears that the plaintiffs did not consent
to the provisions of the by-law in question, but, on the
contrary, they objected to and voted against it in the
stockholders meeting in which it was adopted.
QUALIFICATIONS AND DISQUALIFICATIONS (see discussion
under DIRECTORS/TRUSTEES in chapter 4)
RAMON C. LEE and ANTONIO DM. LACDAO, petitioners,
vs.
THE HON. COURT OF APPEALS, SACOBA MANUFACTURING
CORP., PABLO GONZALES, JR. and THOMAS GONZALES,
respondents.
(GR No. 93695; 205 SCRA 752; Feb. 4, 1992)
FACTS: A complaint for a sum of money was filed by International
Corporate Bank, Inc. against the private respondents who, in turn,
filed a third-party complaint against Alfa Integrated Textile Mills,
Inc.
The trial court ordered the issuance of alias summons upon Alfa
through DBP, who is said to be the transferee of Alfas
management by virtue of a voting trust agreement.
DBP declined to receive the summons saying it is not authorized,
Alfa having a personality separate and distinct. The trial court in
turn ordered private respondents to take the appropriate steps to
serve the summons to Alfa which they made through the officers
and later on, was later on declared to be proper service of
summons.
After the second motion for reconsideration, the trial court
reversed itself, saying that the service of summons upon the
petitioners were not proper, them not being officers of the
corporation anymore. On appeal, the CA reversed the trial court.
ISSUE: WON the petitioners can still be authorized to receive the
summons despite the voting trust agreement with DBP?
HELD: No. Sec. 59 of the Code expressly recognizes VTAs and
gives a more definitive meaning. By its very nature, a VTA results
in the separation of the voting right of a stockholder from his
other rights such as the right to receive dividends, the right to
inspect the books of the corporation, the right to sell certain
interests in the assets of the corporation and other rights to which
a stockholder may be entitled until the liquidation of the
corporation. However, in order to distinguish a VTA from proxies
and other voting pool and agreements, it must pass three criteria
or tests, namely: (1) the voting rights of the stock are separated
from other attributes or ownership; (2) that the voting right
granted are intended to be irrevocable for a definite period of
time; and (3) that the principal purpose of the grant of voting
rights is to acquire voting control of the corporation.
The execution of VTA, therefore, may create a dichotomy
between the equitable and beneficial ownership of the
corporate shares of stockholder, on the one hand and the
legal title thereto, on the other hand.
By virtue of the VTA, the petitioners are no longer directors. Under
the old and new Corporation Code, the most immediate effect of a
VTA on the status of a stockholder who is a party to its execution
is that he becomes only an equitable or beneficial owner, from
being the legal titleholder or owner of the shares subject of the
VTA.
Under the old code, the eligibility of a director, strictly speaking,
cannot be adversely affected by a VTA inasmuch as he remains
the owner (although beneficial or equitable only) of the shares
subject of the VTA pursuant to which a transfer of the
stockholders shares in favor of the trustee is required. No
disqualification arises by virtue of the phrase in his own right
provided under the Old Code, which has been omitted.
Hence, this omission requires that in order to be eligible as
director, what is material is the legal title to, not beneficial
ownership, of the stock as appearing on the books of the
corporation.
The petitioners ceased to be the owners of at least one share
standing in their names on the books of Alfa as required under
Sec. 23 of the new Code. They also ceased to have anything to do
with the management of the enterprise. The petitioners ceased to
be directors.
Considering the VTA, DBP as trustee, became the stockholder of
record with respect to the said shares of stocks.
35
CUMULATIVE VOTING:
1
Cumulative voting gives the stockholder entitled to vote the
right to give a candidate as many votes as the number of
directors to be elected multiplied by the number of his shares
shall equal or he may distribute them among the candidates
as he may see fit.
2
This is granted by law to each stockholder with voting rights.
However, in non-stock corporations, cumulative voting is
generally not allowed, UNLESS allowed by the AOI or by-laws.
3
Under this method, if there are 10 directors to be elected, a
holder of 1,000 shares will have 10,000 votes which he may
cast in favor of one candidate or may apportion to any
number of candidate he may wish;
4
PURPOSE: to allow the minority to have a rightful
representation in the board of directors.
Sec. 25. Corporate officers, quorum. - Immediately after their
election, the directors of a corporation must formally organize by the
election of a president, who shall be a director, a treasurer who may
or may not be a director, a secretary who shall be a resident and
citizen of the Philippines, and such other officers as may be provided
for in the by-laws. Any two (2) or more positions may be held
concurrently by the same person, except that no one shall act as
president and secretary or as president and treasurer at the same
time.
NOTE:
1
Except in a close corporation where the corporate officers
may be elected directly by the stockholders, the Code
requires the BOD to elect the said officers;
2
The officers that may be elected are the:
a
President who must be a director;
b
Treasurer who may or may not be a director;
c
Secretary who should be a resident and citizen of the
Philippines;
d
Such other officers as may be provided for in the by-laws.
3
Any two or more positions may be held concurrently by the
same person, except:
a
The president and the secretary;
b
The president and the treasurer.
B.
EFFECT
OF
ACTIONS
OF
the
letter-offer
sent
by
Malagna
binds
the
HELD: No. A corporation can act only through its officers and
agents, all acts within the powers of said corporation may be
performed by agents of his selection and except in so far as
limitations or restrictions may be imposed by special charter, bylaw or statutory provisions, the same general provision of law
which govern the relation of agency for natural person govern the
officer or agent of a corporation, of whatever status or rank, in
respect to his power to act for the corporation; and the agents
once appointed, or members acting in their stead, are subject to
the same rules, liabilities and incapacities as are agents of
individuals and private persons.
Moreover, a corporate officer or agent may represent and bind the
corporation in transactions with third person to the extent that
authority has been conferred upon him, and this includes powers
which have been (1) intentionally conferred, and (2) also such
powers as, in the usual course of business, are incidental
thereto, or may be implied therefrom, (3) powers added by
custom and usage, as usually pertaining to the particular officer
or agent, and (4) such apparent powers as the corporation has
caused persons dealing with the officer or agent to believe that it
has conferred.
While Mr. Maglana was an officer, the by-laws do not in any way
confer upon the president the authority to enter into contracts for
the corporation independently of the BOD. That power is expressly
lodged in the latter.
36
37
the
HELD: Yes. The terms of the offer were clear and over the
signature of Andnal, plaintiff was informed that the proposal has
been accepted. There was nothing in the telegram that hinted at
any anomaly, or gave grounds to suspect its veracity, and the
plaintiff, therefore, cannot be blamed for relying upon it. There is
no denying that the telegram was within Andals apparent
authority, but eh defense is that he did not sign it, but that it was
sent by the board secretary in his name and without his
knowledge. Assuming this to be true, how was appellee to know
it? Corporate transactions would speedily come to a
standstill were every person dealing with a corporation
were held duty-bound to disbelieve every act of its
responsible officers, no matter how regular they should
appear on their face.
Indeed, it is well-settled that If a private corporation
intentionally or negligently clothes its officers or agents
with apparent power to perform acts for it, the corporation
will be estopped to deny that such apparent authority is
real, as to innocent third persons dealing in good faith
with such officers or agents.
Hence, even if it were the board secretary who sent the telegram,
the corporation could not evade the binding effect produced by
the telegram.
The error in the wording cannot be taken seriously. All the while
GSIS pocketed the various remittances, and kept silent as to the
true facts as it now alleges. This silence, taken together with the
unconditional acceptance of three other subsequent remittances
from plaintiff constitutes in itself a binding ratification of the
original agreement.
THE BOARD OF LIQUIDATORS VS. KALAW (20 SCRA 987; Aug.
10, 1965) National Coconut Corporation (NACOCO) embarked on
copra trading activities led by its General Manager Maximo Kalaw
and the other defendants as members of the board. Due to
natural calamities, the business of copra became unprofitable.
Kalaw made a full disclosure of the situation and apprised the
board of the impending losses on the contracts already entered
into, but no action was taken. But later on, the contracts were
38
the
contracts
executed
by
Kalaw
bind
the
HELD: Yes. A rule that has gained acceptance through the years
is that a corporate officer entrusted with the general
management and control of its business, has implied
authority to make any contract or do any other act which
is necessary or appropriate to the conduct of the ordinary
business of the corporation. As such officer, he may,
without any special authority from the BOD perform all
acts of an ordinary nature, which by usage or necessity
are incident to his office, and may bind the corporation by
contracts in matters arising in the usual course of
business.
Long before the disputed contracts came into being, Kalaw
contracted by himself alone as general manager for forward
sales of copra (which is a necessity in the business) which were
profitable. So pleased was NACOCO;s BOD that it voted to grant
Kalaw special bonus in recognition of the signal achievement
rendered by him.
These previous contacts, it should be stressed, were signed by
Kalaw without prior authority from the board. Said contracts were
known all along to the board members. Nothing was said by them.
The aforesaid contracts stand to prove one thing. Obviously,
NACOCOs board met difficulties attendant to forward sales by
leaving the adoption of means to end, to the sound discretion of
NACOCOs general manager Maximo Kalaw.
Where similar acts have been approved by the directors as
a matter of general practice, custom, and policy, the
general manager may bind the company without formal
authorization of the BOD. In varying language, existence of
such authority is established, by proof of the course of business,
the usages and practices of the company and by the knowledge
which the BOD has, or must be presumed to have, of acts and
doings of its subordinates in and about the affairs of the
corporation.
In the case at bar, the practice of the corporation has been to
allow its general manager to negotiate and execute contracts in
its copra trading activities for and in NACOCOs behalf without
prior board approval. If the by-laws were to be literally followed,
the board should give its stamp of prior approval on all corporate
contracts. But the Board itself, by its acts and through
acquiescence, practically laid aside the by-law requirement of
prior approval.
BUENASEDA VS. BOWEN & CO., INC. (110 Phil. 464; Dec. 29,
1969) As a consequence of P200,000 worth of ECA allocated to
the Bowen & Co., Inc., it required a letter of credit in the amount
of P100,000 with the PNB. As the corporation did not have at the
time the necessary funds to put up the required cash marginal
deposit of P60,000, its president Geoffrey Bowen, obligating the
corporation and himself in his personal capacity, offered to pay
Francisco Buenaseda 37 % of the profits to be realized from the
sale of the ECA procurement materials, should he be able to
obtain and produce the amount necessary to cover the cash
marginal deposit which Buenaseda was able to do.
The corporation refused to pay, Buenaseda filed an action in the
CFI to recover the same.
1.
2.
3.
39
40
COMPENSATION OF DIRECTORS
When the recipient does not stand in the dual relation of the (1)
one compensated and (2) a participant in fixing his own
compensation, it is considered outside the proper judicial function
to go into business policy question of the fairness or
reasonableness of compensation as fixed by the board. Otherwise,
it will call for a scrutiny of the reasonableness or fairness of the
compensation. Likewise, even if consented to by the majority of
stockholders, the courts may still look into such reasonableness if:
(1) it would amount to giving away corporate funds in the guise of
compensation as against the interest of the dissenting minority; or
(2) in fraud of creditors, either amounting to wastage of assets.
CENTRAL COOPERATIVE EXCHANGE (CCE) VS. TIBE, JR. (33
SCRA 593; June 30, 1970) This is a complaint filed by herein
petitioner CCE for the refund of certain amounts received by
respondent when he served as member of the board of directors
of CCE, which were said to be per diems and transportation
expenses, representation expenses and commutable discretionary
funds.
ISSUE: WON the BOD had the power to appropriate funds for the
expenses claimed by respondent?
HELD: No. The by-laws expressly reserved unto the stockholders
the power to determine the compensation of the members of the
BOD, and the stockholders did restrict such compensation to (1)
actual transportation expenses plus (2) per diems of P30 and (3)
actual expenses while waiting. Even without the express
prohibition, the directors are not entitled to compensation for
The law is well-settled that directors of corporations
presumptively serve without compensation and in the
absence of an express agreement or a resolution thereto,
no claim can be asserted therefor. Thus it has been held
that there can be no recovery of compensation, unless
expressly provided for, when director serves as president
or vice-president, as secretary or treasurer or cashier, as
member of an executive committee, as chairman of a
building committee, or similar offices.
Thus, the directors, in assigning themselves additional duties,
such as the visitation of FACOMAS, acted within their power, but,
by voting for themselves compensation for such additional duties,
they acted in excess of their authority, as express in the by-laws.
WESTERN INSTITUTE OF TECHNOLOGY, INC., HOMERO L.
VILLASIS, DIMAS ENRIQUEZ, PRESTON F. VILLASIS &
REGINALD
F.
VILLASIS,
petitioner,
vs.
RICARDO T. SALAS, SALVADOR T. SALAS, SOLEDAD SALASTUBILLEJA, ANTONIO S. SALAS, RICHARD S. SALAS & HON.
JUDGE PORFIRIO PARIAN, respondents
(GR No. 113032; 278 SCRA 216; Aug. 21, 1997)
FACTS: In a special board meeting, a resolution was passed
providing for compensation of officers. A few years later,
petitioners Homero Villasis, Prestod Villasis, Reginald Villasis and
Dimas Enriquez filed an affidavit-complaint for falsification of
public documents (for submission of an income reflecting the
resolution as passed on 1985, when in fact it was passed in 1986)
and estafa (for the disbursement of funds by effecting payment to
the aforesaid salaries) against herein respondents who were
members of the Board of Trustees who were also officers of the
corporation. The trial court acquitted respondents in both charges
without civil liability. The motion for reconsideration on the civil
41
HELD: No. It was an error to hold David Ong jointly and severally
liable with TRAMAT to de la Cuesta under the questioned
transaction. Ong had there so acted, not in his personal capacity,
but as an officer of a corporation, TRAMAT, with a distinct and
separate personality. As such, it should only be the corporation,
not the person acting for and on its behalf that properly could be
made liable thereon.
42
Appellants
43
have
been
sugar
planter
adhered
They hold such office charged with the duty to act for the
corporation according to their best judgment, and in so doing
they cannot be controlled in the reasonable exercise and
performance of such duty. Whether the business of a
corporation should be operated at a loss during depression, or
close down at a smaller loss, is a purely business and economic
problem to be determined by the directors of the corporation
and not by the court. It is a well-known rule of law that
questions of policy or of management are left solely to the
honest decision of officers and directors of a corporation, and
the court is without authority to substitute its judgment of the
board of directors; the board is the business manager of the
corporation, and so long as it acts in good faith its orders are
not reviewable by the courts. (Fletcher on Corporations, Vol. 2,
p. 390).
And it appearing undisputed in this appeal that sugar centrals of
La Carlota, Hawaiian Philippines, San Carlos and Binalbagan
(which produce over one-third of the entire annual sugar
production in Occidental Negros) have granted progressively
increasing participations to their adhered planter at an average
rate of
62.333%
64.2%
for 1952-53;
64.3%
for 1953-54;
64.5%
63.5%
for 1955-56,
44
SELF-DEALING DIRECTORS
45
46
INTERLOCKING DIRECTORS
DERIVATIVE SUIT
HELD: Yes. In suits of this character the corporation itself and not
the plaintiff stockholder is the real party in interest. The rights of
the individual stockholder are merged into that of the corporation.
It is a universally recognized doctrine that a stockholder in a
corporation has no title legal or equitable to the corporate
property; that both of these are in the corporation itself for the
benefit of all the stockholders. Text writers illustrate this rule by
the familiar example of one person or entity owning all the stock
and still having no greater or essentially different title than if he
owned but one single share. Since, therefore, the stockholder has
no title; it is evident that what he does have, with respect to the
corporation and his fellow stockholder, are certain rights sui
generis. These rights are generally enumerated as being, first, to
have a certificate or other evidence of his status as stockholder
issued to him; second, to vote at meetings of the corporation;
third, to receive his proportionate share of the profits of the
corporation; and lastly, to participate proportionately in the
distribution of the corporate assets upon the dissolution or
winding up. (Purdy's Beach on Private Corporations, sec. 554.)
47
48
nullify the action taken by the manager and the board of directors
of the Republic Bank; and any demand for intra-corporate remedy
would be futile, as expressly pleaded in the complaint. These
circumstances permit a stockholder to bring a derivative suit
(Evangelista vs. Santos, 86 Phil. 394). That no other
stockholder has chosen to make common cause with
plaintiff Perez is irrelevant, since the smallness of
plaintiff's holdings is no ground for denying him relief
(Ashwander vs. TVA, 80 L. Ed. 688). At any rate, it is yet too early
in the proceedings for the absence of other stockholders to be of
any significance, no issues having even been joined.
ISSUE2: WON the Corporation should be a plaintiff or defendant?
HELD2: The English practice is to make the corporation a party
plaintiff, while in the United States, the usage leans in favor of its
being joined as party defendant (see Editorial Note, 51 LRA [NS]
123). Objections can be raised against either method. (1)
Absence of corporate authority would seem to militate
against making the corporation a party plaintiff, while (2)
joining it as defendant places the entity in the awkward
position of resisting an action instituted for its benefit.
What is important is that the corporation' should be made
a party, in order to make the Court's judgment binding
upon it, and thus bar future relitigation of the issues. On
what side the corporation appears loses importance when
it is considered that it lay within the power of the trial
court to direct the making of such amendments of the
pleadings, by adding or dropping parties, as may be
required in the interest of justice (Revised Rule 3, sec. 11).
Misjoinder of parties is not a ground to dismiss an action.
(Ibid.)
ISSUE3: WON the action of the plaintiff amounts to a quo
warranto proceeding?
HELD: No. Plaintiff Perez is not claiming title to Dizon's position as
head of the Republic Bank's board of directors. The suit is aimed
at preventing the waste or diversion of corporate funds in paying
officers appointed solely to protect Pablo Roman from criminal
prosecution, and not to carry on the corporation's bank business.
Whether the complaint's allegations to such effect are true or not
must be determined after due hearing.
WESTERN INSTITUTE OF TECHNOLOGY, INC., vs. SALAS
(supra, under Compensation of Directors) Petitioners assert that
the motion for reconsideration of the civil aspect of the RTC
decision acquitting respondents is a derivative suit brought by
them as minority stockholders of WIT for and on behalf of the
corporation
ISSUE: WON the appeal may be considered as a derivative
action?
HELD:
No. A derivative suit is an action brought by
minority shareholders in the name of the corporation to
redress wrongs committed against it, for which the
directors refuse to sue. It is a remedy designed by equity
and has been the principal defense of the minority
shareholders against abuses by the majority. Here, however,
the case is not a derivative suit but is merely an appeal on the
civil aspect of Criminal Cases Nos. 37097 and 37098 filed with the
RTC of Iloilo for estafa and falsification of public document.
Among the basic requirements for a derivative suit to
prosper is that the minority shareholder who is suing for
and on behalf of the corporation must allege in his
complaint before the proper forum that he is suing on a
derivative cause of action on behalf of the corporation and
all other shareholders similarly situated who wish to join.
This is necessary to vest jurisdiction upon the tribunal in line with
the rule that it is the allegations in the complaint that vests
49
50
The claim that respondent Justiniani did not take steps to remedy
the illegal importation for a period of two years is also without
merit. During that period of time respondent had the right to
assume and expect that the directors would remedy the
anomalous situation of the corporation brought about by their own
wrong doing. Only after such period of time had elapsed could
respondent conclude that the directors were remiss in their duty
to protect the corporation property and business.
We are led to agree with the judge below that the appointment of
a receiver was not only expedient but also necessary to restore
the faith and confidence of the Central Bank authorities in the
administration of the affairs of the corporation, thus ultimately
leading to a restoration of the dollar allocation so essential to the
operation of the textile mills.
RICARDO L. GAMBOA, LYDIA R. GAMBOA, HONORIO DE 1A
RAMA, EDUARDO DE LA RAMA, and the HEIRS OF MERCEDES DE
LA RAMA-BORROMEO, petitioners,
vs.
HON. OSCAR R. VICTORIANO as Presiding Judge of the Court of
First Instance of Negros Occidental, Branch II, BENJAMIN LOPUE,
SR., BENJAMIN LOPUE, JR., LEONITO LOPUE, and LUISA U. DACLES
respondents.
(GR No. -40620; 90 SCRA 40; May 6, 1979)
FACTS: A writ of preliminary injunction was filed by herein
respondents as purchasers of 1,328 shares of stock of Inocente De
La Rama, inc. after herein petitioners surreptitiously met and
authorized the sale of 823 shares to forestall the petitioners
takeover from the previous president and vice-president (sellers of
the 1,328 shares), in violation of their pre-emptive right. The trial
court ruled in favor of respondents. Later on, private respondents
entered into a compromise agreement with the recipients for the
transfer of the 823 shares, against which the petitioners filed a
motion to dismiss which was denied.
ISSUE: WON a derivative suit is the more proper action that
should have been filed by respondents?
HELD: No. The petitioners contend that the proper remedy of the
plaintiffs would be to institute a derivative suit against the
petitioners in the name of the corporation in order to secure a
binding relief after exhausting all the possible remedies available
within the corporation.
51
2.
3.
4.
5.
by-laws or on a majority vote of the board, except with respect to: (1)
approval of any action for which shareholders' approval is also
required; (2) the filing of vacancies in the board; (3) the amendment
or repeal of by-laws or the adoption of new by-laws; (4) the
amendment or repeal of any resolution of the board which by its
express terms is not so amendable or repealable; and (5) a
distribution of cash dividends to the shareholders
CHAPTER 7: CORPORATE POWERS AND AUTHORITY
Sec. 36. Corporate powers and capacity. - Every corporation
incorporated under this Code has the power and capacity:
1. To sue and be sued in its corporate name;
2. Of succession by its corporate name for the period of time stated in
the articles of incorporation and the certificate of incorporation;
3. To adopt and use a corporate seal;
4. To amend its articles of incorporation in accordance with the
provisions of this Code;
5. To adopt by-laws, not contrary to law, morals, or public policy, and
to amend or repeal the same in accordance with this Code;
6. In case of stock corporations, to issue or sell stocks to subscribers
and to sell stocks to subscribers and to sell treasury stocks in
accordance with the provisions of this Code; and to admit members
to the corporation if it be a non-stock corporation;
7. To purchase, receive, take or grant, hold, convey, sell, lease,
pledge, mortgage and otherwise deal with such real and personal
property, including securities and bonds of other corporations, as the
transaction of the lawful business of the corporation may reasonably
and necessarily require, subject to the limitations prescribed by law
and the Constitution;
8. To enter into merger or consolidation with other corporations as
provided in this Code;
9. To make reasonable donations, including those for the public
welfare or for hospital, charitable, cultural, scientific, civic, or similar
purposes: Provided, That no corporation, domestic or foreign, shall
give donations in aid of any political party or candidate or for
purposes of partisan political activity;
10. To establish pension, retirement, and other plans for the benefit of
its directors, trustees, officers and employees; and
11. To exercise such other powers as may be essential or necessary
to carry out its purpose or purposes as stated in the articles of
incorporation.
The statement of the objects, purposes or powers in the AOI
results practically in defining the scope of the authorized
corporate enterprise or undertaking. This statement both confers
and also limits the actual authority of the corporation.
Along with the powers indicated in the AOI, a corporation can also
exercise powers that may be granted by law, particularly those
Sec. 35. Executive committee. - The by-laws of a corporation may provided under Sec. 36 and 44 of the Corporation Code and those
which may be necessary or incidental to tis existence.
create an executive committee, composed of not less than three
members of the board, to be appointed by the board. Said committee In short, corporate authority may be classified as:
may act, by majority vote of all its members, on such specific matters 1. Express powers those expressly granted by law inclusive of
within the competence of the board, as may be delegated to it in the
the corporate charter or AOI;
J.
EXECUTIVE COMMITTEE
52
2.
3.
A.
A corporation may sue and be sued in its corporate name just like
any other person.
VENUE: the action filed against it must be instituted at the place
of principal office of the corporation.
SERVICE OF SUMMONS: Sec. 11, Rule 14 of the Rules of Court
provide:
53
54
POWER OF SUCCESSION
The procedures for the exercise of this right are provided under
Sec. 16, Sec. 37 and 38 as discussed earlier under CHAPTER 5:
CORPORATE CHARTER AND ITS AMENDMENTS.
As far as corporations created by special law are concerned,
amendment may NOT be considered as a matter of right. The law
creating it may or may not authorize or empower the corporation
to make any changes in its AOI or charter. However, whether
empowered or not, Congress may amend or repeal a corporate
charter by virtue of its inherent authority to amend or repeal laws
under the Constitution.
E.
55
HELD Yes. As observed at the outset, had this case been resolved
immediately after it was submitted for decision, the result may
have been quite adverse to private respondent. For the rule then
prevailing under the case of Manila Electric Company v. CastroBartolome et al., 114 SCRA 799, reiterated in Republic v.
Villanueva, 114 SCRA 875 as well as the other subsequent cases
involving private respondent adverted to above', is that a juridical
person, private respondent in particular, is disqualified under the
1973 Constitution from applying for registration in its name
alienable public land, as such land ceases to be public land "only
upon the issuance of title to any Filipino citizen claiming it under
section 48[b]" of Commonwealth Act No. 141, as amended. These
are precisely the cases cited by petitioner in support of its theory
of disqualification.
56
did not come from the government and the Director of Posts was
prevailed upon to agree to the request only after studying the
necessity for its establishment and after imposing upon the
company certain requirements intended to safeguard and protect
the interest of the government. Accordingly, the company cannot
now be heard to complain of its liability upon the technical plea
that the resolution is ultra vires. The least that can be said is that
it cannot now go back on its plighted word on the ground of
estoppel.
The resolution covers a subject which concerns the benefit,
convenience and welfare of the companys employees and their
families. There are certain corporate acts that may be performed
outside of the scope of the powers expressly conferred if they are
necessary to promote the interest or welfare of the corporation.
Thus, it has been held that although not expressly authorized to
do so a corporation may become a surety where the particular
transaction is reasonably necessary or proper to the conduct of its
business, and here it is undisputed that the establishment of the
local post office is a vital improvement in the living condition of its
employees and laborers who came to settle in it mining camp
which is far removed from the postal facilities or means of
communication accorded to people living in a city or municipality.
IMPLIED POWERS
To determine whether or not the NPC act falls within the purview
of the above provision, the Court must decide whether or not a
logical and necessary relation exists between the act
Sec. 36. Xxx
questioned and the corporate purpose expressed in the
11. To exercise such other powers as may be essential or necessary NPC charter. For if the act is one which is lawful in itself
and not otherwise prohibited, and is done for the purpose
to carry out its purpose or purposes as stated in the articles of
of serving corporate ends, and reasonably contributes to
incorporation
the promotion of those ends in a substantial and not in a
remote and fanciful sense, it may be fairly considered
It is a question, in each case, of the logical relation of the act
within the corporations charter powers (Montelibano vs.
to the corporate purpose expressed in the charter. For if
Bacolod-Murcia Milling Co., Inc.)
the act is one which is lawful in itself and not otherwise
prohibited, and is done for the purpose of serving
In the instant case, it is an undisputed fact that the pier owned by
corporate ends, and reasonably contributes to the
NPC, receives various shipment of coal which is used exclusively
promotion of those ends in a substantial and not in a
to fuel the Batangas Coal-Fired Thermal Power Plant of the NPC for
remote and fanciful sense, it may be fairly considered
the generation of electric power. The stevedoring services which
within the corporations charter powers (Montelibano vs.
involve the unloading of the coal shipments into the NPC pier for
Bacolod-Murcia Milling Co., Inc. as cited in NPC vs. VERA)
its eventual conveyance to the power plant are incidental and
I.
TERESA ELECTRIC AND POWER CO., INC. VS. P.S.C (21 SCRA
198; Sept. 25, 1967) Respondent Filipinas Cement Corporation
filed an application with herein respondent PSC for a certificate of
public convenience to install, maintain and operate an electric
plant in Teresa, Rizal for the purpose of supplying electric power
and light to its cement factory and its employees living within its
compound. Herein petitioner, operating an electric plant in Teresa
Rizal filed an opposition claiming that Filipinas is not authorized to
operate the proposed electric plant under its articles of
incorporation. PSC decided in favor of Filipinas.
ISSUE: WON under its articles of incorporation, Filipinas is
authorized to operate and maintain an electric plant?
HELD: Yes. Paragraph 7 of the AOI of Filipinas provides for
authority to secure from any governmental, state, municipality, or
provincial, city or other authority, and to utilize and dispose of in
any lawful manner, rights, powers, privileges, franchises and
concessions obviously necessary or at least related to the
operation of its cement factory. Moreover, said AOI also provide
that the corporation may generally perform any and all acts
connected with the business of manufacturing portland cement or
arising therefrom or incidental thereto.
It cannot be denied that the operation of an electric light, heat
and power plant is necessarily connected with the business of
manufacturing cement. If in the modern world where we live
today electricity is virtually a necessity for our daily needs, it is
more so in the case of industries like the manufacture of cement.
57
J.
(1) That the requirements of this section have been complied with;
(2) The amount of the increase or diminution of the capital stock;
(3) If an increase of the capital stock, the amount of capital stock or
number of shares of no-par stock thereof actually subscribed, the
names, nationalities and residences of the persons subscribing, the
amount of capital stock or number of no-par stock subscribed by
each, and the amount paid by each on his subscription in cash or
property, or the amount of capital stock or number of shares of nopar stock allotted to each stock-holder if such increase is for the
purpose of making effective stock dividend therefor authorized;
(4) Any bonded indebtedness to be incurred, created or increased;
(5) The actual indebtedness of the corporation on the day of the
meeting;
(6) The amount of stock represented at the meeting; and
(7) The vote authorizing the increase or diminution of the capital
stock, or the incurring, creating or increasing of any bonded
indebtedness.
58
4.
5.
6.
7.
8.
59
BENITO VS. SEC (123 SCRA 722; July 25, 1983) -Respondent
Jamiatul Philippines Al Islamia, Inc. was incorporated with
P2,000,000 authorized capital stock divided into 20,000 shares, of
which 460 belong to herein petitioner. In a stockholders meeting,
an increase of the authorized capital stock to P1,000,000 was
approved, where the previously unissued shares were all issued.
60
1.
2.
61
62
63
defendant-
64
65
3.
Even if PTC did not acquire the bonds in question, but only
guaranteed them, it would at any rate, be valid and the said
corporation is bound to pay the appellant their value with the
accrued interest in view of the fact that they become due on
account of the lapse of 60 days, without the accrued interest due
having been paid; and the reason is that it is estopped from
denying the validity of its guarantee.
66
CHAPTER 8: BY-LAWS
BY-LAWS are rules and ordinances made by a corporation for its
own government; to regulate the conduct and define the duties of
the stockholders or members towards the corporation and among
themselves. They are the rules and regulations or private laws
enacted by the corporation to regulate, govern and control its own
actions, affairs and concerns and tis stockholder or members and
directors and officers with relation thereto and among themselves
in their relation to it.
Sec. 46. Adoption of by-laws. - Every corporation formed under
this Code must, within one (1) month after receipt of official notice of
the issuance of its certificate of incorporation by the Securities and
Exchange Commission, adopt a code of by-laws for its
government not inconsistent with this Code. For the adoption of
by-laws by the corporation the affirmative vote of the stockholders
representing at least a majority of the outstanding capital stock, or
of at least a majority of the members in case of non-stock
corporations, shall be necessary. The by-laws shall be signed by the
stockholders or members voting for them and shall be kept in the
principal office of the corporation, subject to the inspection of the
stockholders or members during office hours. A copy thereof, duly
certified to by a majority of the directors or trustees countersigned by
the secretary of the corporation, shall be filed with the Securities and
Exchange Commission which shall be attached to the original articles
of incorporation.
67
68
69
70
ART. 71. The directors shall elect from among the shareholders
members to fill the vacancies that may occur in the board of
directors until the election at the general meeting
WON Art. 71 is valid?
HELD: Yes. We are unable to see the slightest merit in the charge.
No fault can be imputed to the corporation on account of the
failure of the shareholders to attend the annual meetings; and
their non-attendance at such meetings is doubtless to be
interpreted in part as expressing their satisfaction of the way in
which things have been conducted. Upon failure of a quorum at
any annual meeting the directorate naturally holds over and
continues to function until another directorate is chosen and
qualified. Unless the law or the charter of a corporation
expressly provides that an office shall become vacant at
the expiration of the term of office for which the officer
was elected, the general rule is to allow the officer to
holdover until his successor is duly qualified. Mere failure
of a corporation to elect officers does not terminate the
terms of existing officers nor dissolve the corporation
(Quitman Oil Company vs. Peacock, 14 Ga. App., 550; Jenkins vs.
Baxter, 160 Pa. State, 199; New York B. & E. Ry. Co. vs. Motil, 81
Conn., 466; Hatch vs. Lucky Bill Mining Company, 71 Pac., 865;
Youree vs. Home Town Matual Ins. Company, 180 Missouri, 153;
Cassell vs. Lexington, H. and P. Turnpike Road Co., 10 Ky. L. R.,
486). The doctrine above stated finds expressions in article 66 of
the by-laws of the respondent which declares in so many words
that directors shall hold office "for the term of one year on until
their successors shall have been elected and taken possession of
their offices."
71
where the fiduciary was acting for two entities with competing
interests. This doctrine rests fundamentally on the unfairness, in
particular circumstances, of an officer or director taking
advantage of an opportunity for his own personal profit when the
interest of the corporation justly calls for protection.
It is not denied that a member of the Board of Directors of the San
Miguel Corporation has access to sensitive and highly confidential
information, such as: (a) marketing strategies and pricing
structure; (b) budget for expansion and diversification; (c)
research and development; and (d) sources of funding, availability
of personnel, proposals of mergers or tie-ups with other firms.
It is obviously to prevent the creation of an opportunity for an
officer or director of San Miguel Corporation, who is also the
officer or owner of a competing corporation, from taking
advantage of the information which he acquires as director to
promote his individual or corporate interests to the prejudice of
San Miguel Corporation and its stockholders, that the questioned
amendment of the by-laws was made. Certainly, where two
corporations are competitive in a substantial sense, it would seem
improbable, if not impossible, for the director, if he were to
discharge effectively his duty, to satisfy his loyalty to both
corporations and place the performance of his corporation duties
above his personal concerns.
Sound principles of corporate management counsel against
sharing sensitive information with a director whose fiduciary duty
of loyalty may well require that he disclose this information to a
competitive arrival. These dangers are enhanced considerably
where the common director such as the petitioner is a controlling
stockholder of two of the competing corporations. It would seem
manifest that in such situations, the director has an economic
incentive to appropriate for the benefit of his own corporation the
corporate plans and policies of the corporation where he sits as
director.
Indeed, access by a competitor to confidential information
regarding marketing strategies and pricing policies of San Miguel
Corporation would subject the latter to a competitive
disadvantage and unjustly enrich the competitor, for advance
knowledge by the competitor of the strategies for the
development of existing or new markets of existing or new
products could enable said competitor to utilize such knowledge
to his advantage.
Neither are We persuaded by the claim that the by-law was
Intended to prevent the candidacy of petitioner for election to the
Board. If the by-law were to be applied in the case of one
stockholder but waived in the case of another, then it could be
reasonably claimed that the by-law was being applied in a
discriminatory manner. However, the by law, by its terms, applies
to all stockholders. The equal protection clause of the Constitution
requires only that the by-law operate equally upon all persons of a
class. Besides, before petitioner can be declared ineligible to run
for director, there must be hearing and evidence must be
submitted to bring his case within the ambit of the
disqualification. Sound principles of public policy and
management, therefore, support the view that a by-law which
disqualifies a competition from election to the Board of Directors
of another corporation is valid and reasonable.
ISSUE2: WON the Corporation has the power to prescribe
qualifications?
72
respondent San Miguel Corporation could, as a measure of selfprotection, disqualify a competitor from nomination and election
to its Board of Directors.
STOCKHOLDERS MEETING
3.
73
meeting then the Ponce case WILL NOT APPLY. This is so, because
the phrase or when the officer authorized to do so refuses, or
fails, or neglects to call a meeting has been deliberately omitted
in Sec. 50 of the Corporation Code.
Likewise, in the same ruling of the SEC, the Ponce case likened
the questioned order to a writ of preliminary injunction which may
be issued ex parte, the said PI can no longer be issued without
notice and hearing under Sec. 5 of Rule 58 of the Rules of Court.
Mandamus is the proper remedy.
4.
74
5.
DIRECTORS/TRUSTEES MEETING
75
Irrevocable
The trustee can act and vote at
any meeting during the duration
of the VTA
Trustee may vote in person or by
proxy
Duration may exceed five years
VTA to be valid and effective,
must be notarized and filed with
the SEC
representing
an
absent
stockholder
Revocable
anytime
unless
coupled with an interest
Proxy can generally act as such
only at a particular meeting
Proxy holder must vote in person
Proxy is of a shorter duration and
may not exceed 5 years
Unless required by the by-laws,
proxies need not be notarized nor
is it required to be filed with the
SEC.
NATIONAL
INVESTMENT
AND
DEVELOPMENT
CORPORATION, EUSEBIO VILLATUYA MARIO Y. CONSING and
ROBERTO S. BENEDICTO, petitioners,
The trustee or trustees shall execute and deliver to the transferors vs.
voting trust certificates, which shall be transferable in the same HON. BENJAMIN AQUINO, in his official capacity as Presiding
Judge of Branch VIII of the Court of First Instance of Rizal, BATJAK
manner and with the same effect as certificates of stock.
INC., GRACIANO A. GARCIA and MARCELINO CALINAWAN JR.,
respondents.
The voting trust agreement filed with the corporation shall be subject (G.R. No. L-34192 June 30, 1988)
to examination by any stockholder of the corporation in the same
manner as any other corporate book or record: Provided, That both PHILIPPINE NATIONAL BANK, petitioner,
the transferor and the trustee or trustees may exercise the right of vs.
inspection of all corporate books and records in accordance with the HON. BENJAMIN H. AQUINO, in his capacity as Presiding Judge
of the Court of First Instance of Rizal, Branch VIII and BATJAK
provisions of this Code.
INCORPORATED, respondents
(G.R. No. L-34213 June 30, 1988)
Any other stockholder may transfer his shares to the same trustee or
trustees upon the terms and conditions stated in the voting trust FACTS: On Oct. 26, 1965, private respondent Batjak, Inc. entered
agreement, and thereupon shall be bound by all the provisions of said into a Voting Trust Agreement with petitioner NIDC, in order to
assist the former with its financial obligations. The VTA was for a
agreement.
period of 5 years constituting 60% of the outstanding paid-up and
subscribed shares of Batjak. 5 years therafter, or on Aug. 31,
No voting trust agreement shall be entered into for the purpose of 1970, Batjak represented by majority stockholders, through Atty.
circumventing the law against monopolies and illegal combinations in Amado Duran, legal counsel, wrote to NIDC inquiring if the atter
restraint of trade or used for purposes of fraud.
was still interest in negotiating the renewal of the VTA, but there
was no reply even with the second letter sent on Sept. 22, 1970.
Unless expressly renewed, all rights granted in a voting trust
agreement shall automatically expire at the end of the agreed period, On Sept. 23, 1970, legal counsel of Batjak wrote another letter
asking for a complete accounting of the assets, properties,
and the voting trust certificates as well as the certificates of stock in
management and operation of Batjak, preparatory to their turnthe name of the trustee or trustees shall thereby be deemed over and transfer to the stockholders of Batjak.
cancelled and new certificates of stock shall be reissued in the name
of the transferors.
NIDC replied that it had no intention to comply with such demand.
Batjak filed an action for mandamus with preliminary injunction
The voting trustee or trustees may vote by proxy unless the which was granted.
agreement provides otherwise.
VOTING TRUSTS DISTINGUISHED FROM PROXY
VOTING TRUST
The beneficial owner of the
shares ceased to be stockholder
of record of the corporation since
the shares are transferred to the
trustee
Trustee votes as owner of the
shares
The
beneficial
owner
is
disqualified to be a director
Purpose is to acquire
control of the corporation
76
voting
ISSUE: WON Batjak has the personality to enforce the voting trust
agreement executed by its stockholders and whether it may
compel the trustee to turn over the assets of the corporation?
PROXY
Legal title to the shares remain
HELD: No. In support of the third ground of their motion to
with the beneficial owner
dismiss, PNB and NIDC contend that Batjak's complaint for
mandamus is based on its claim or right to recovery of possession
of the three (3) oil mills, on the ground of an alleged breach of
fiduciary relationship. Noteworthy is the fact that, in the Voting
Proxy votes merely as an agent
Trust Agreement, the parties thereto were NIDC and certain
The owner of the shares may be stockholders of Batjak. Batjak itself was not a signatory thereto.
elected as such since legal title Under Sec. 2, Rule 3 of the Rules of Court, every action must be
thereof remains with him
prosecuted and defended in the name of the real party in interest.
Generally used to secure voting Applying the rule in the present case, the action should have been
an quorum requirements or filed by the stockholders of Batjak, who executed the Voting Trust
merely for the purpose of Agreement with NIDC, and not by Batjak itself which is not a party
Batjak premises its right to the possession of the three (3) off mills
on the Voting Trust Agreement, claiming that under said
agreement, NIDC was constituted as trustee of the assets,
management and operations of Batjak, that due to the expiration
of the Voting Trust Agreement, on 26 October 1970, NIDC should
tum over the assets of the three (3) oil mills to Batjak From the
foregoing provisions, it is clear that what was assigned to NIDC
was the power to vote the shares of stock of the stockholders of
Batjak, representing 60% of Batjak's outstanding shares, and who
are the signatories to the agreement. The power entrusted to
NIDC also included the authority to execute any agreement or
document that may be necessary to express the consent or
assent to any matter, by the stockholders. Nowhere in the said
provisions or in any other part of the Voting Trust Agreement is
mention made of any transfer or assignment to NIDC of Batjak's
assets, operations, and management. NIDC was constituted as
trustee only of the voting rights of 60% of the paid-up and
outstanding shares of stock in Batjak. This is confirmed by
paragraph No. 9 of the Voting Trust Agreement, thus:
77
SUBSCRIPTION CONTRACT
June 1, 1948
The BOARD OF TRUSTEES
Quezon College
Manila
Gentlemen:
Please enter my subscription to dalawang daan (200)
shares of your capital stock with a par value of P100
each. Enclosed you will find (Babayaran kong lahat
pagkatapos na ako ay makapag-pahuli ng isda) pesos as
my initial payment and the balance payable in
accordance with law and the rules and regulations of the
Quezon College. I hereby agree to shoulder the expenses
connected with said shares of stock. I further submit
myself to all lawful demands, decisions or directives of
the Board of Trustees of the Quezon College and all its
duly constituted officers or authorities (ang nasa itaas ay
binasa at ipinaliwanag sa akin sa wikang tagalog na
aking nalalaman).
Very respectfully,
(Sgd.) DAMASA CRISOSTOMO
Signature of subscriber
Nilagdaan sa aming harapan:
JOSE CRISOSTOMO
EDUARDO CRISOSTOMO
On Oct. 26, 1948, Crisostomo died. As no payment on the
subscriptions appear to have been made, herein appellant filed a
claim in her testate proceedings for P20,000 which was opposed
by the administrator, and dismissed by the CFI.
ISSUE: WON the subscription is valid and enfroceable?
78
PRE-INCORPORATION SUBSCRIPTION
STOCK ISSUANCE
79
made.
ISSUE: WON the subscription to be paid out of the dividends
declared on the shares has the effect of relieving the subscriber
from personal liability in an action to recover the value of the
shares?
80
81
82
Section 4 of Act No. 1508 provides two ways for executing a valid
chattel mortgage which shall be effective against third persons.
First, the possession of the property mortgage must be delivered
to and retained by the mortgagee; and, second, without such
delivery the mortgage must be recorded in the proper office or
offices of the register or registers of deeds. If a chattel mortgage
of shares of stock of a corporation may validly be made without
the delivery of possession of the property to the mortgagee and
the mere registration of the mortgage is sufficient to constructive
notice to third parties, we are confronted with the question as to
the proper place of registration of such a mortgage. Section 4
provides that in such a case the mortgage resides at the time of
making the same or, if he is a non-resident, in the province in
which the property is situated; and it also provides that if the
property is situated in a different province from that in which the
mortgagor resides the mortgage shall be recorded both in the
province of the mortgagor's residence and in the province where
the property is situated.
83
In the case of Fleischer vs. Botica Nolasco Co. (47 Phil., 583), we
have discussed the validity of a clause in the by-laws of the
defendant corporation, which provided that, under the same
conditions, the owner of a share of stock could not sell it to
another person except to the defendant corporation. In deciding
the legality and validity of said restriction, we held:
W.
R.
BABCOCK,
84
EVANGELISTA:
1. To transfer to Asuncion 19 parcels of agricultural land
registered in his name, together with the stocks,
equipment and facilities of Embassy Farms, Inc. wherein
90% of the shares of stock is owned by Evangelista;
2. To cede, transfer and convey in a manner absolute and
irrevocable any and all of his shares of stocks in
Embassy Farms, Inc. to Asuncion or his nominees until
the total of said shares of stock so transferred shall
constitute 90% of the paid-in equity of said corporation
within a reasonable time from signing the document.
ASUNCION:
1. To pay Evangelista P8,630,999;
2. To organize and register a new corporation with an
authorized capital stock of P10M which upon registration
will take over all the rights and liabilities of Asuncion.
85
In the case at bar the indorsed certificate of stock was not actually
delivered to Asuncion so that Evangelista is still the controlling
stockholder of Embassy Farms despite the execution of the
memorandum of agreement and the turn-over of control and
management of the Embassy Farms to Asuncion on August 2,
1984.
When Asuncion filed on April 10, 1986 an action for the rescission
of contracts with damages, the Pasig Court merely restored and
established the status quo prior to the execution of the MOA by
the issuance of a restraining order on July 10, 1987 and the writ of
preliminary injunction on July 30, 1987. It would be unjust and
unfair to allow Asuncion and his nominees to control and manage
the Embassy Farms despite the fact that Asuncion, who is the
source of their supposed shares of stock in the corporation, is not
asking for the delivery of the indorsed certificate of stock but for
the rescission of the MOA. Rescission would result in mutual
restitution (Magdalena Estate v. Myrick, 71 Phil. 344) so it is but
proper to allow Evangelista to manage the farm. Compared to
Asuncion or his nominees Evangelista would be more interested in
the preservation of the assets, equipment and facilities of
Embassy Farms during the pendency of the main case.
ENRIQUE RAZON, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and VICENTE B. CHUIDIAN,
in his capacity as Administrator of the Estate of the Deceased
JUAN T. CHUIDIAN, respondents.
(G.R. No. 74306 March 16, 1992)
VICENTE B. CHUIDIAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, ENRIQUE RAZ0N, and E.
RAZON, INC., respondents
(G.R. No. 74315 March 16, 1992)
FACTS: E. Razon, Inc. was organized by petitioner Enrique Razon
in 1962. However, it began operations only in 1966 since the
other incorporators withdrew from the said corporation. The
petitioner then distributed the stocks previously placed in the
names of the withdrawing nominal incorporators to some friends,
among them the late Juan T. Chuidian to whom he gave 1,500
shares.
The shares of stocks were registered in the name of Chuidian only
as nominal stockholder and with the agreement that the said
shares of stock were owned and held by the petitioner but
Chuidian was given the option to buy the same
Chuidian delivered to petitioner the stock certificate in 1966, and
since then petitioner had in his possession such certificate, until
the time, he delivered it for deposit with PBCom under the parties
joint custody pursuant to their agreement embodied in the trial
courts order.
ISSUE: WON petitioner Razon is the rightful owner of the shares?
86
87
At the time the Bragas questioned the validity of the sale, the
contract had already been perfected, thereby demonstrating that
Telectronic Systems, Inc. was already the prima facie owner of the
shares and, consequently, a stockholder of Pocket Bell Philippines,
Inc. Even if the sale were to be annulled later on, Telectronic
Systems, Inc. had, in the meantime, title over the shares from the
time the sale was perfected until the time such sale was annulled.
The effects of an annulment operate prospectively and do not, as
a rule, retroact to the time the sale was made. Therefore, at the
time the Bragas questioned the validity of the tranfers made by
the Abejos, Telectronic Systems, Inc. was already a prima facie
shareholder of the corporation, thus making the dispute between
the Bragas and the Abejos "intra-corporate" in nature. Hence, the
Court held that "the issue is not on ownership of shares but rather
the non-performance by the corporate secretary of the ministerial
duty of recording transfers of shares of stock of the corporation of
which he is secretary."
Unlike Abejo, however, petitioner's ownership over the
shares in this case was not yet perfected when the
Complaint was filed. The contract of pledge certainly does
not make him the owner of the shares pledged. Further,
whether prescription effectively transferred ownership of the
shares, whether there was a novation of the contracts of pledge,
and whether laches had set in were difficult legal issues, which
were unpleaded and unresolved when herein petitioner asked the
corporate secretary of Go Fay to effect the transfer, in his favor, of
the shares pledged to him.
In Rural Bank of Salinas: Melenia Guerrero executed deeds of
assignment for the shares in favor of the respondents in that case.
When the corporate secretary refused to register the transfer, an
action for mandamus was instituted. Subsequently, a motion for
intervention was filed, seeking the annulment of the deeds of
assignment on the grounds that the same were fictitious and
antedated, and that they were in fact donations because the
considerations therefor were below the book value of the shares.
Like the Abejo spouses, the respondents in Rural Bank of Salinas
were already prima facie shareholders when the deeds of
assignment were questioned. If the said deeds were to be
annulled later on, respondents would still be considered
shareholders of the corporation from the time of the assignment
until the annulment of such contracts.
ISSUE2: WON petitioner is entitled to the relief of mandamus as
against the company?
HELD: No. Petitioner prays for the issuance of a writ of
mandamus, directing the corporate secretary of respondent
corporation to have the shares transferred to his name in the
Po claims that the trial court erred in applying the ruling in Fua
Cun vs. Summers and China Banking Corporation wherein it was
ruled that the payment of one-half of the subscription does not
entitle the subscriber to a certificate for one-half of the number of
shares subscribed.
88
89
said debt will be paid out of the proceeds of the sale of their real
property described in the agreement.
The Villanueva spouses failed to settle their obligation on the due
date, and the BOD sent a demand letter for the surrender of the
said shares and for the delivery of sufficient collateral to cover the
balance of the debt, which the Villanueva spouses ignored. Their
shares were converted into Treasury shares.
The Villanueva spouses questioned the legality of the such
conversion and filed with the SEC a petition for annulment of the
stockholders meeting and election of directors and officers
because they were not notified of such meeting.
The SEC hearing officer dismissed the application for issuance of a
preliminary injunction, but was granted on reconsideration. The
decision was affirmed by the SEC en banc and later by the CA.
ISSUE: WON the transfer of the shares is ineffective for nonindorsement and non-delivery of the certificate of stocks?
Under the instant case, the fact of the matter is, the new holder,
Angel S. Tan has already exercised his rights and prerogatives as
stockholder and was even elected as member of the board of
directors in the respondent corporation with the full knowledge
and acquiescence of petitioner. Due to the transfer of fifty (50)
shares, Angel S. Tan was clothed with rights and responsibilities in
the board of the respondent corporation when he was elected as
officer thereof.
Besides, in Philippine jurisprudence, a certificate of stock is
not a negotiable instrument. "Although it is sometime
regarded as quasi-negotiable, in the sense that it may be
transferred by endorsement, coupled with delivery, it is
well-settled that it is non-negotiable, because the holder
thereof takes it without prejudice to such rights or
defenses as the registered owner/s or transferror's
creditor may have under the law, except insofar as such
rights or defenses are subject to the limitations imposed
by the principles governing estoppel." (De los Santos vs.
McGrath, 96 Phil. 577)
90
HELD: No. The defendant has not made herein any pretense to
that effect; but it contends that from the moment the certificate
was assigned to the plaintiff, the latter's right to have the
assignment registered commenced to exist. This contention is
correct, but it would not follow that said right should be
exercised immediately or within a definite period. The
existence of a right is one thing, and the duration of said
right is another.
91
HELD: No. Even, however, if Juan Campos and Carl Hess had sold
the shares of stock in question, as testified to by De los Santos,
the result, insofar as plaintiffs are concerned, would be the same.
It is not disputed that said shares of stock were registered, in the
records of the Lepanto, in the name of Vicente Madrigal. Neither is
it denied that the latter was, as regards said shares of stock, a
mere trustee for the benefit of the Mitsuis. The record shows
and there is no evidence to the contrary that Madrigal had
never disposed of said shares of stock in any manner whatsoever,
except by turning over the corresponding stock certificates, late in
1941, to the Mitsuis, the beneficial and true owners thereof. It has,
moreover, been established, by the uncontradicted testimony of
Kitajima and Miwa, the managers of the Mitsuis in the Philippines,
from 1941 to 1945, that the Mitsuis had neither sold, conveyed, or
alienated said shares of stock, nor delivered the aforementioned
stock certificates, to anybody during said period. Section 35 of the
Corporation Law reads:
FORGED
AND
UNAUTHORIZED
TRANSFERS
VS.
UNAUTHORIZED ISSUANCE OF STOCK CERTIFICATE: In the
former, what is forged or unauthorized is the transfer of the
certificate from the true and lawful owner to another person.
While the latter refers to the act of the corporation in issuing the
certificate, either fraudulently or by mistake.
In forged or unauthorized transfer:
1. The purchaser or purchasers, no matter how innocent they
may have been, will acquire no title as against the lawful
owner by virtue of the doctrine of non-negotiability of
certificates of stock;
2. The purchaser will have no right or remedy against the
corporation because he took the shares not by virtue of a
misrepresentation made by the corporation but on the faith of
a forged endorsement or unauthorized transfer;
3. The corporation incurs no liability to the person in whose
favor the certificate is endorsed or issued.
4. If the old certificate is cancelled and new one is issued by the
corporation, the holder thereof may be required to return the
same for its cancellation;
5. However, if new certificates are issued and passes into the
hands of a subsequent bona fide purchaser, the latter may
rightfully acquire title thereto since the corporation will be
estopped to deny the validity thereof;
92
6.
**In this sense, if D sues X Co., the latter will have no valid
defense, but he may institute a third party complaint against C. If
C is an innocent purchaser, X Co., may file a fourth party
complaint against B.
ISSUANCE OF STOCK CERTIFICATION
Subscriptions to shares of stock are indivisible such that a
subscriber to such shares will not be entitled to the issuance of a
stock certificate until he has paid the full amount of his
subscription.
Sec. 64. Issuance of stock certificates. - No certificate of stock
shall be issued to a subscriber until the full amount of his subscription
together with interest and expenses (in case of delinquent shares), if
any is due, has been paid.
INDIVISIBILITY: As the law stands now, subscription to shares of
stock are deemed indivisible and no certificate of stock can be
issued unless and until the full amount of his subscription
including interest and expenses, if any is paid.
The ruling, therefore, in Baltazar vs. Lingayen Gulf Electronic
Power Co where a subscriber may opt to apply his partial payment
to a corresponding number of shares, will not hold true. Thus,
even if under the old law, where a corporation may, under a bylaw provision or by custom, practice or tradition, issue stock
certificates covering the number of shares that might have been
correspondingly paid, this authority or practice is valid only two
years after the effectivity of the Corporation Code and after which
corporations, registered under the said law should comply with
the mandatory requirement of Sec. 64. The Corporation Code thus
provides:
HELD: (1) No. (2) Yes. Though the court below erred in holding
that Chua Soco, by paying one-half of the subscription price of
five hundred shares, in effect became the owner of two hundred
and fifty shares, the judgment appealed from is in the main
correct.
93
WATERED STOCKS
94
2.
3.
4.
5.
6.
2.
13.
Ex. A subscribed to 100 shares of stock for P100.00 each and paid
only 50% and later on declared to be delinquent. For the full
amount of P5,000 (unpaid balance) and the interests, costs, and
expenses, the following bidders are willing to accept - X: 70
Should there be no bidder at the public auction who offers to pay the shares; Y: 80 shares; Z: 90 shares. In this case, X would be the
full amount of the balance on the subscription together with accrued highest bidder. The remaining 30 shares would be credited to A.
interest, costs of advertisement and expenses of sale, for the
*NO BIDDER: If there was no bidder, the company has to have
smallest number of shares or fraction of a share, the corporation may,
unrestricted retained earnings in order to acquire the shares as
subject to the provisions of this Code*, bid for the same, and the thus provided under Sec. 41 of the Corporation Code (Power to
total amount due shall be credited as paid in full in the books of the Acquire Own Shares). Accordingly, if the company has no
corporation. Title to all the shares of stock covered by the unrestricted retained earnings, it cannot acquire the said shares
subscription shall be vested in the corporation as treasury shares and by virtue of a delinquency sale, however, it may institute an
may be disposed of by said corporation in accordance with the action for the recovery of the subscription price under Sec. 70.
provisions of this Code.
MAY A DIRECTOR DECLARED TO BE DELINQUENT ON HIS
SUBSCRIPTION BE ALLOWED TO CARRY OUT HIS
PROCEDURE:
FUNCTIONS AS SUCH DIRECTOR? Yes. He is still a shareholder
1. The BOD, by a formal Resolution, declares the whole or any
entitled to all the rights as such, and pending the sale, the shares
percentage unpaid subscriptions to be due and payable on a
still stand in his name. Even after the sale, he may still be credited
specified date. However, if the contract of subscription
to some of the shares and he only needs 1 to qualify as a director.
provides the date or dates when payment is due, no call or
95
The provisions of the Corporation Law (Act No. 1459) has given
recognition of two remedies for the enforcement of stock
subscriptions. The first and most special remedy given by
the statute consists in permitting the corporation to put
up the unpaid stock for sale and dispose of it for the
account of the delinquent subscriber. In this case the
provisions of section 38 to 48, inclusive of the Corporation Law are
applicable and must be followed. The other remedy is by
action in court, concerning which we find in section 49 the
following provision:
Nothing in this Act shall prevent the directors from
collecting, by action in any court of proper jurisdiction, the
amount due on any unpaid subscription, together with
accrued interest and costs and expenses incurred.
ARNALDO F. DE SILVA, plaintiff-appellant,
vs.
ABOITIZ & COMPANY, INC., defendant-appellee
(G.R. No. L-19893; March 31, 1923)
96
If the board of directors does not wish to make, or does not make,
use of said authority it has two other remedies for accomplishing
the same purpose. As was said by this court in the case of Velasco
vs. Poizat (37 Phil., 802):
The first and most special remedy given by the statute consists
in permitting the corporation to put the unpaid stock for sale
and dispose of it for the account of the delinquent subscriber. In
this case the provisions of sections 38 to 48, inclusive, of the
Corporation Law are applicable and must be followed. The other
remedy is by action in court.
Admitting that the provision of article 46 of the said by-laws
maybe regarded as a contract between the defendant corporation
and its stockholders , yet as it is only to the board of directors of
the corporation that said articles gives the authority or right to
apply on the payment of unpaid subscriptions such amount of the
70 percent of the profit distributable among the shareholders in
equal parts as may be deemed fit, it cannot be maintained that
97
JOSE
M.
The Philippines did not invest the P9.00 for every peso coming
from defendant lumber producers. The loan extended by PNB was
not paid. Hence, these suits which the trial court dismissed.
ISSUE: WON the lumber producers are liable for the full value of
their subscriptions?
98
HELD: Yes. In Philippine Trust Co. v. Rivera, citing the leading case
of Velasco v. Poizat, this Court held: "It is established doctrine that
subscriptions to the capital of a corporation constitute a fund to
which creditors have a right to look for satisfaction of their claims
and that the assignee in insolvency can maintain an action upon
any unpaid stock subscription in order to realize assets for the
99
Thus, the BOD has the authority to decide the amount and the
kind of surety bond that may be required for the issuance of a
Sec. 72. Rights of unpaid shares. - Holders of subscribed shares certificate of stock, in liey of the lost or destroyed one, if the same
not fully paid which are not delinquent shall have all the rights of a is to be issued prior to the expiration of the 1 year period provided
stockholder.
by Sec. 73.
NON-STOCK CORPORATIONS: The rules on delinquent
shareholders applies to non-stock corporations, such as when
members are delinquent in paying membership dues.
100
2.
3.
4.
5.
6.
A.
101
102
W. G. PHILPOTTS, petitioner,
vs.
PHILIPPINE MANUFACTURING COMPANY and F. N. BERRY,
respondents.
(G.R. No. L-15568; November 8, 1919)
FACTS: Petitioner seeks to obtain a writ of mandamus to compel
the respondents to permit him, in person or by some authorized
agent or attorney, to inspect and examine the records of the
business by Philippine Manufacturing Company, of which he is a
stockholder.
Respondents interposed a demurrer.
ISSUE: WON the right the law concedes to a stockholder may be
exercised by a proper agent or attorney?
HELD: Yes. The right of inspection given to a stockholder
can be exercised either by himself or by any proper
representative or attorney in fact, and either with or
without the attendance of the stockholder. This is in
conformity with the general rule that what a man may do in
person he may do through another; and we find nothing in the
statute that would justify us in qualifying the right in the manner
suggested by the respondents.
This conclusion is supported by the undoubted weight of authority
in the United States, where it is generally held that the provisions
of law conceding the right of inspection to stockholders of
corporations are to be liberally construed and that said right may
be exercised through any other properly authorized person. As
was said in Foster vs. White (86 Ala., 467), "The right may be
regarded as personal, in the sense that only a stockholder
may enjoy it; but the inspection and examination may be
made by another. Otherwise it would be unavailing in many
instances." An observation to the same effect is contained in
Martin vs. Bienville Oil Works Co. (28 La., 204), where it is said:
"The possession of the right in question would be futile if the
possessor of it, through lack of knowledge necessary to exercise
it, were debarred the right of procuring in his behalf the services
of one who could exercise it." In Deadreck vs. Wilson (8 Baxt.
[Tenn.], 108), the court said: "That stockholders have the
right to inspect the books of the corporation, taking
minutes from the same, at all reasonable times, and may
be aided in this by experts and counsel, so as to make the
inspection valuable to them, is a principle too well settled to
need discussion." Authorities on this point could be accumulated
in great abundance, but as they may be found cited in any legal
encyclopedia or treaties devoted to the subject of corporations, it
is unnecessary here to refer to other cases announcing the same
rule.
The demurrer is overruled; and it is ordered that the writ of
mandamus shall issue as prayed, unless within 5 days from
notification hereof the respondents answer to the merits.
ANTONIO PARDO, petitioner,
vs.
THE HERCULES LUMBER CO., INC., and IGNACIO FERRER,
respondents
(G.R. No. L-22442; August 1, 1924)
FACTS: Petitioner Antonio Pardo seeks to obtain a writ of
mandamus to compel respondent company to permit petitioner
and his duly authorized agent and representative to examine the
records and business transactions of said company.
Respondents raised the defense that under Art. 10 of the by-laws,
it is declared that every shareholder may examine the books of
the company and other documents pertaining to the same upon
the days which the board of directors shall annually fix. And thus
was set from 15th to 25th of March by virtue of a board resolution.
ISSUE: WON the BOD may choose specific performance and
103
the
the
the
the
104
105
106
107
4.
5.
SARMIENTO
JR.,
108
In light of the foregoing, the Court holds that petitioner has a valid
cause of action against private respondent. Clearly, the failure of
private respondent to honor his obligation under the promissory
note constitutes a violation of petitioner's right to collect the
proceeds of the loan it extended to the former.
BANK OF THE PHILIPPINE ISLANDS, Petitioner,
vs.
BPI EMPLOYEES UNION-DAVAO CHAPTER-FEDERATION OF
UNIONS IN BPI UNIBANK, Respondent
(G.R. No. 164301; August 10, 2010)
Pursuant to the Article and Plan of Merger, all the assets and
liabilities of FEBTC were transferred to and absorbed by BPI as the
surviving corporation. FEBTC employees, including those in its
different branches across the country, were hired by petitioner as
its own employees, with their status and tenure recognized and
salaries and benefits maintained.
BPI has an existing Union Shop Clause agreement with the BPI
Employees Union-Davao Chapter-Federation of Unions in BPI
Unibank (BPI Union) whereby it is a pre-condition that new
employees must join the union before they can be regularized
otherwise they will not have a continued employment. By reason
of the failure of the FEBTC employees to join the union, BPI Union
recommended to BPI their dismissal. BPI refused. The issue went
to voluntary arbitration where BPI won but the Court of Appeals
reversed the Voluntary Arbitrator. Hence, this petition.
ISSUE: WON employees of a dissolved corporation in a merger
are considered absorbed by the surviving corporation?
109
In Carver v Brien (1942) 315 Ill App 643, 43 NE2d 597, the court
saying that, absent some specific contract provision otherwise,
seniority rights were ordinarily limited to the employment in which
they were earned, and concluding that the contract for which
specific performance was sought was not such a completed and
binding agreement as would support such equitable relief, since
the railroad, whose concurrence in the arrangements made was
essential to their effectuation, was not a party to the agreement.
That BPI is the same entity as FEBTC after the merger is but a
legal fiction intended as a tool to adjudicate rights and obligations
between and among the merged corporations and the persons
that deal with them. Although in a merger it is as if there is no
change in the personality of the employer, there is in reality a
change in the situation of the employee. Once an FEBTC
employee is absorbed, there are presumably changes in his
condition of employment even if his previous tenure and salary
rate is recognized by BPI. It is reasonable to assume that BPI
would have different rules and regulations and company practices
than FEBTC and it is incumbent upon the former FEBTC employees
to obey these new rules and adapt to their new environment. Not
the least of the changes in employment condition that the
absorbed FEBTC employees must face is the fact that prior to the
merger they were employees of an unorganized establishment
and after the merger they became employees of a unionized
company that had an existing collective bargaining agreement
with the certified union. This presupposes that the union who is
party to the collective bargaining agreement is the certified union
that has, in the appropriate certification election, been shown to
represent a majority of the members of the bargaining unit.
DEFINITION
WHEN EXERCISED
4.
110
111
2.
3.
4.
5.
6.
F.
COST OF APPRAISAL
A.
DEFINITION
b.
b.
G.
NOTATION
112
PURPOSE
Sec. 89. Right to vote. - The right of the members of any class or
113
the time of the said deadline. (Exhibits 4, 6, 6-A, 6-B and 6-C). No
evidence could be cited by the trial court to rebut this well nigh
conclusive documentary evidence other than respondent's
unsupported suspicion which the trial court adopted in a negative
manner with its statement that it is "not improbable" that "some
of those applications filed after said deadline". If there were
indeed any applications filed after the deadline, they certainly
should have been positively pin-pointed and specifically annulled.
During the meetings dated April 4, 1997 and May 30, 1997 of the
CCCI Board of Directors, action on respondents application for
proprietary membership was deferred. In another Board meeting
held on July 30, 1997, respondents application was voted upon.
Subsequently, or on August 1, 1997, respondent received a letter
from Julius Z. Neri, CCCIs corporate secretary, informing him that
the Board disapproved his application for proprietary membership.
114
For his part, respondent maintains that the petition lacks merit,
hence, should be denied.
(c) After the expiration of the aforesaid thirty (30) days, the
Board may, by unanimous vote of all directors present at
a regular or special meeting, approve the inclusion of the
candidate in the "Eligible-for-Membership List".
115
D.
116
117
HELD: No. We adopt the general rule that "... the courts will
not interfere with the internal affairs of an unincorporated
association so as to settle disputes between the members,
or questions of policy, discipline, or internal government,
so long as the government of the society is fairly and
honestly administered in conformity with its laws and the
law of the land, and no property or civil rights are invaded.
Under such circumstances, the decision of the governing body or
established private tribunal of the association is binding and
conclusive and not subject to review or collateral attack in the
courts. " (7 C.J.S. pp. 38- 39).
PLACE OF MEETINGS
Sec. 93. Place of meetings. - The by-laws may provide that the
members of a non-stock corporation may hold their regular or special
meetings at any place even outside the place where the principal
office of the corporation is located: Provided, That proper notice is
sent to all members indicating the date, time and place of the
meeting: and Provided, further, That the place of meeting shall be
within the Philippines.
PLACE OF MEETING: another distinctive feature of a non-stock
corporation is that membership meeting may be held anywhere in
the Philippines whereas in a stock corporation, the stockholders
meeting is mandated to be held or conducted within the city or
municipality where the principal office is located, and as far as
practicable, within the principal office of the corporation.
F.
DEFINITION
118
PERMISSIVE PROVISIONS
119
Sec. 98. Validity of restrictions on transfer of shares. Restrictions on the right to transfer shares must appear in the
articles of incorporation and in the by-laws as well as in the
certificate of stock; otherwise, the same shall not be binding on any
purchaser thereof in good faith. Said restrictions shall not be more
onerous than granting the existing stockholders or the corporation
the option to purchase the shares of the transferring stockholder
with such reasonable terms, conditions or period stated therein. If
upon the expiration of said period, the existing stockholders or the
corporation fails to exercise the option to purchase, the transferring
stockholder may sell his shares to any third person.
The restriction must be indicated not only in the AOI and the stock
certificates but also in the by-laws. The restrictions, however, shall
not be more onerous than granting existing stockholders or the
corporation the option to purchase the shares of the selling or
transferring stockholder within reasonable terms, conditions and
period. If, after the expiration of the period, the existing
stockholders or the corporation fails to exercise the option, the
stockholder concerned may transfer his shares to any third person
subject to the provisions, however, of Sec. 99:
Sec. 99. Effects of issuance or transfer of stock in breach of
qualifying conditions.
1. If stock of a close corporation is issued or transferred to any
person who is not entitled under any provision of the articles of
incorporation to be a holder of record of its stock, and if the
certificate for such stock conspicuously shows the qualifications of
the persons entitled to be holders of record thereof, such person
is conclusively presumed to have notice of the fact of his
ineligibility to be a stockholder.
2. If the articles of incorporation of a close corporation states the
number of persons, not exceeding twenty (20), who are entitled to
be holders of record of its stock, and if the certificate for such stock
conspicuously states such number, and if the issuance or transfer of
stock to any person would cause the stock to be held by more than
such number of persons, the person to whom such stock is issued
or transferred is conclusively presumed to have notice of this
fact.
3. If a stock certificate of any close corporation conspicuously
shows a restriction on transfer of stock of the corporation, the
transferee of the stock is conclusively presumed to have notice
of the fact that he has acquired stock in violation of the
restriction, if such acquisition violates the restriction.
4. Whenever any person to whom stock of a close corporation has
been issued or transferred has, or is conclusively presumed under
this section to have, notice either (a) that he is a person not eligible
to be a holder of stock of the corporation, or (b) that transfer of
stock to him would cause the stock of the corporation to be held by
more than the number of persons permitted by its articles of
incorporation to hold stock of the corporation, or (c) that the
transfer of stock is in violation of a restriction on transfer of stock,
the corporation may, at its option, refuse to register the
transfer of stock in the name of the transferee.
120
STOCKHOLDERS AGREEMENT
insurance.
PRE-INCORPORATION AGREEMENTS: under par.1 do not
ordinarily survive the corporation in ordinary stock corporations
unless it has been ratified or adopted by the corporation after
incorporation. Only in such case may the corporation be bound by
said agreement. In a close corporation, these pre-incorporation
agreements survive and continue to be valid and binding, if such
be the intent of the stockholders, provided that the agreement is
not inconsistent with the AOI
VOTING AGREEMENTS or rights or the manner of exercising
voting rights under par. 2 may be the subject of agreement of
stockholders, such as to vote for a specific person or group or to
maintain a certain stockholder as their president or chairman.
CONDUCT OF CORPORATE AFFAIRS under par. 3 and 4, may be
the subject of an agreement, in writing, and will be effective and
binding despite the fact that it may make them partners among
themselves. Agreements may also be entered into by and
between the stockholders of a close corporation which relates to
the management of the corporate affairs which would not
otherwise be valid and binding in other corporations. This is
because stockholders agreement in the latter cannot limit or
restrict the discretion and powers of the BOD to manage the
corporate affairs.
E.
PRE-EMPTIVE RIGHTS
Sec. 102. Pre-emptive right in close corporations. - The preemptive right of stockholders in close corporations shall extend to
all stock to be issued, including reissuance of treasury shares,
whether for money, property or personal services, or in payment of
corporate debts, unless the articles of incorporation provide
otherwise.
G.
121
DEADLOCKS
6.
7.
I.
WITHDRAWAL OF STOCKHOLDERS/DISSOLUTION
CLOSE
CORPORATION
CORPORATION
VS.
ORDINARY
STOCK
CLOSE CORPORATION
ORDINARY STOCK
CORPORATION
No limitation as to number of
shareholder
To
the
extent
that
all
stockholders can be deemed
directors, the number of
directors can effectively be
more than 15
Generally no restriction
transfer of shares
No prohibition
122
management
by
vesting
management to them rather
than a Board of Director
Board of Directors
Agreements
between
stockholders regarding the
operations of the business can
validly be made
Ordinarily,
no
such
classification
and
no
restrictions
on
cumulative
voting
Although
the
articles
of
incorporation or by-laws may
provide for greater quorum
and voting requirements in
directors
meeting
under
section
25,
those
for
stockholders meeting cannot
generally be altered
Restriction on transfer of
shares should be indicated in
the articles of incorporation,
by-laws and stock certificates
Pre-emptive
rights
of
stockholders is broader as it
include all issues without
exception
on
The
proper
forum
may
interfere in the management
of a close corporation in case
of deadlocks under Section
104,
even
of
the
directors/stockholders
are
acting in good faith
123
On appeal, the
respondents.
NLRC
granted
separation
pay
to
private
124
125
Code.
PUBLIC SCHOOLS or those created by the government are,
however, subject to the law of their creation. UP for instance has
its own special charter and would thus be governed by the special
law creating it. Insofar as they may be applicable however, the
provisions of any special law or the Corporation Code supplement
the law of their creation.
PRIVATE SCHOOLS OR COLLEGES include any private
institutions for teaching, managed by private individuals or
corporations which offer courses of kindergarten, primary,
intermediary or secondary instructions or superior courses in
vocational, technical, professional or special schools by which
diploma or certificates are to be granted or titles and degrees
conferred (Sec. 2, Act No. 2076, as amended by CA 180).
These instructions of learning once recognized by the government
as such are mandated by law to be incorporated within 90 days
under the provisions of the Corporation Code and must, perforce,
comply with the requirements and procedure laid down
thereunder. (Sec. 5, supra)
Their failure to do so will not immune the educational institution
from suit as a corporation (Chang Kai Shek School vs. CA; April 18,
1989, supra)
The SEC, however, shall not act on the incorporation of any
educational corporation, unless the provision of Sec. 107 is
complied with:
Sec. 107. Pre-requisites to incorporation. - Except upon
favorable recommendation of the Ministry of Education and Culture,
the Securities and Exchange Commission shall not accept or
approve the articles of incorporation and by-laws of any educational
institution
BOARD OF DIRECTORS/TRUSTEES: or the governing board by
any name of an educational institution is similar in number as to
any other corporation except that in case it is non-stock, the
number must be in multiples of five (5). As compared to stock
corporation, their number may be within the vicinity of five (5) to
fifteen (15).
TERM OF OFFICE: Members of the Board may hold office for five
years but they shall be staggered so that 1/5 of their number shall
expire every year. Sec. 108 provides:
Sec. 108. Board of trustees. - Trustees of educational institutions
organized as non-stock corporations shall not be less than five (5)
nor more than fifteen (15): Provided, however, That the number of
trustees shall be in multiples of five (5).
Unless otherwise provided in the articles of incorporation or the bylaws, the board of trustees of incorporated schools, colleges, or
other institutions of learning shall, as soon as organized, so classify
themselves that the term of office of one-fifth (1/5) of their number
shall expire every year. Trustees thereafter elected to fill vacancies,
occurring before the expiration of a particular term, shall hold office
only for the unexpired period. Trustees elected thereafter to fill
vacancies caused by expiration of term shall hold office for five (5)
years. A majority of the trustees shall constitute a quorum for the
transaction of business. The powers and authority of trustees shall
be defined in the by-laws.
For institutions organized as stock corporations, the number and
term of directors shall be governed by the provisions on stock
corporations.
CONSTITUTIONAL PROVISION ON FILIPINO OWNERSHIP: par.
2, Sec. 4 of Article XIV (Education, Science and Technology, Arts,
CORPORATION SOLE
126
127
128
129
RELIGIOUS SOCIETIES
130
METHODS OF DISSOLUTION
3.
The revocation
dissolution)
of
its
corporate
franchise
(involuntary
HELD: Yes. The contract of lease expressly provides that the term
of the lease shall be twenty years from the execution of the
contract but can be extended for another period of twenty years
at the option of the lessee should the corporate term be extended
131
D.
SURRENDER
DISSOLUTION)
OF
FRANCHISE
(VOLUNTARY
132
VOLUNTARY
AFFECTED
DISSOLUTION
WHERE
CREDITORS
ARE
5.
6.
7.
133
INVOLUNTARY DISSOLUTION
not used the same during the term of five years, judgment shall
be entered that it be ousted and excluded therefrom and that it
be dissolved; but when it is found and adjudged that a
corporation has offended in any matter or manner which
does not by law work as a surrender or forfeiture, or has
misused a franchise or exercised a power not conferred
by law, but not of such a character as to work a
surrender or forfeiture of its franchise, judgment shall
be rendered that it be ousted from the continuance of
such offense or the exercise of such power.
It will be seen that said section (212) gives the court a wide
discretion in its judgment in depriving corporations of their
franchise. High, in his work on Extraordinary Legal Remedies, says
at page 606:
HELD: No. Section 212 of Act No. 190 provides a judgment which
may be rendered in said case:
134
135
Upon this point we do not hesitate to say that in our opinion the
corporation has not been shown to have offended against the law
in a manner that should entail a forfeiture of its charter. Certainly
no court with any discretion to use in the matter would visit upon
the respondent and its thousands of shareholders the extreme
penalty of the law as a consequence of the delinquency here
shown to have been committed.
The law applicable to the case is in our opinion found in section
212 of the Code of Civil Procedure, as applied by this court in
Government of the Philippine Islands vs. Philippine Sugar Estates
Development Co. (38 Phil., 15). This section (212), in prescribing
the judgment to be rendered against a corporation in an action of
quo warranto, among other things says:
. . . When it is found and adjudged that a corporation has
offended in any matter or manner which does not by law work
as a surrender or forfeiture, or has misused a franchise or
exercised a power not conferred by law, but not of such a
character as to work a surrender or forfeiture of its franchise,
judgment shall be rendered that it be outset from the
continuance of such offense or the exercise of such power.
This provision clearly shows that the court has a discretion
with respect to the infliction of capital punishment upon
corporation and that there are certain misdemeanors and
misuses of franchises which should not be recognized as
requiring their dissolution.
Government of the Philippine Islands vs. Philippine Sugar
Estates Development Co.: (38 Phil., 15): In the PSEC, case, it
was found that the offending corporation had been largely
(though indirectly) engaged in the buying and holding or real
property for speculative purposes in contravention of its charter
and contrary to the express provisions of law. Moreover, in that
case the offending corporation was found to be still interested in
the properties so purchased for speculative at the time the action
was brought. Nevertheless, instead of making an absolute
and unconditional order for the dissolution of the
corporation, the judgment of ouster was made conditional
upon the failure of the corporation to discontinue its
unlawful conduct within six months after final decision. In
the case before us the respondent appears to have rid itself of the
San Clemente property many months prior to the institution of
this action. It is evident from this that the dissolution of the
respondent would not be an appropriate remedy in this case. We
do not of course undertake to say that a corporation might not be
dissolved for offenses of this nature perpetrated in the past,
especially if its conduct had exhibited a willful obduracy and
contempt of law.
Third cause of action. Under the third cause of action
the respondent is charged with engaging in activities
foreign to the purposes for which the corporation was
created and not reasonable necessary to its legitimate
ends. The specifications under this cause of action relate
to three different sorts of activities. The first consist of the
administration of the offices in the El Hogar building not
used by the respondent itself and the renting of such
offices to the public.
The second specification under the third cause of action has
reference to the administration and management of properties
belonging to delinquent shareholders of the association
The third specification under this cause of action relates to certain
activities which are described in the following paragraphs
contained in the agreed statements of facts:
El Hogar Filipino has undertaken the management of some
parcels of improved real estate situated in Manila not under
mortgage to it, but owned by shareholders, and has held itself
out by advertisement as prepared to do so
136
2.
3.
4.
5.
6.
7.
8.
9.
Later on, the Solicitor General filed a motion for the dismissal of
the complaint which was granted by the lower court.
ISSUE: WON the lower court is correct in not dissolving the
corporation?
HELD: Yes. After a very careful and deliberate consideration of the
evidence adduced by petitioner, the lower court came to the
conclusion that the same did not really warrant a quo warranto by
the State that could truly justify to decapitate corporate life, and
that the corporate acts or missions complained of had not resulted
in substantial injury to the public, nor were they wilful and clearly
obdurate. The court found that the several acts of misuse and
misapplication of the funds and/or assets of the Bisaya Land
Transportation Co., Inc. were committed new particularly by the
respondent Dr. Manuel Cuenco with the cooperation of Jose P.
Velez, for the commission of which they may be personally held
liable. There appears to be no reason for us to disregard the
findings of the trial court, which, applying well settled doctrines,
ought to be given due weight and credit (De la Rama vs. Ma-ao
Sugar Central, L-17504 & L-17506, Feb. 28, 1969). Besides, the
court a quo found that the controversy between the parties
was more personal than anything else and did not at all
affect public interest.
The Solicitor General himself asserts that the only purpose of his
ration for the of this quo warranto is to take the State out of an
unnecessary court litigation, so that the dismissal of the case
would result in the disposition solely of the quo warranto by and
between petitioner Republic of the Philippines and the
respondents named therein. Other interested parties who might
feel aggrieved, therefore, would not be without their remedies
since they can still maintain whatever claims they may have
against each other. It has been held that relief by dissolution
will be awarded only where no other adequate remedy is
available, and is not available where the rights of the
stockholders can be, or are, protected in some other way
(16 Fletcher Cyc. Corporations, 1942 Ed., pp. 812-813, citing
"Thwing vs. McDonald", 134 Minn. 148,156 N.W. 780,158 N.W.
820, 159 N.W. 564, Ann. Cas. 1918 E 420; Mitchell vs. Bank of St.
Paul, 7 Minn. 252, cited in De la Rama vs. Ma-ao Sugar Central,
supra).
ACCORDINGLY, without prejudice to the rights of the private
parties herein to take proper steps to enforce whatever causes of
action they may have against each other, the order of the lower
137
EFFECTS OF DISSOLUTION
138
The fact, however, is that since 1953, the old Corporation had
been illegally plying its business of selling ice in Sabang because,
under the Corporation Law, Sec. 77, after November 1953, it could
not lawfully continue the business for which it had been
established (operate ice plant, sell ice, etc). After November 1953,
it could only continue to exist for three years for the purpose of
prosecuting and defending suits by or against it, and of enabling it
gradually to settle and close its affairs, to dispose and convey its
property and to divide its capital stock. It could not, without
violating the law, continue to sell ice. And yet, the Commission
awarded the certificate on the basis of such serve and distribution
of ice applying the "prior operator" rule. In other words, the
new Camarines Corporation is rewarded, precisely because the old
corporation, its predecessor, had violated the law during that
139
corporate for three years after the time when it would have
been so dissolved, for the purpose of prosecuting and defending
suits by or against it and of enabling it gradually to settle and
close its affairs, to dispose of and convey its property and to
divide its capital stock, but not for the purpose of continuing the
business for which it was established.
Even a cursory reading of the above-quoted provision would
convey the idea clearly manifested in the limitation "but not for
the purpose of continuing the business for which it was
established", that the 3-year period allowed by the law is only for
the purpose of winding up its affairs. Petitioner-appellee prayed
that it be declared to have the right to stevedoring work in
question "thereby respecting the contract entered into by
petitioner and the Elizalde & Co. and subsequently enforced and
continued by the respondent States Marine Corporation". It
appearing that the said States Marine Corporation was
already dissolved at the time said petition was filed, and
the vessel subject of the agreement having changed
hands, it cannot be compelled now to respect such
agreement specially considering the fact that it cannot
even be made a party to this suit (See. 1, Rule 3, of the Rules
of Court.
SPOUSES RAMON A. GONZALES and LILIA Y. GONZALES,
petitioners,
vs.
SUGAR REGULATORY ADMINISTRATION, respondent
(G.R. No. 84606; June 28, 1989)
FACTS: Petitioner spouses file a complaint seeking cancellation of
a mortgage and recovery of a sum of money for the overpayment
they made, on a loan secured from RP Bank, by virtue of an
alleged deduction made by Philippine Sugar Commission
(Philsucom) of the proceeds of sugar exports.
Petitioners filed an amended complaint which assailed the
constitutionality of EO No. 18 abolishing Philsucom which in effect
destroyed petitioners right to recover from PSC. They assert that
the transfer from Philsucom to SRA are unconstitutional and
ineffective.
On Aug. 2, 1988, the trial court granted the motion to dismiss
insofar as SRA is concerned while denying that same motion
insofar as RP Bank and Philsucom were concerned.
ISSUE: WON SRA could be made a party-respondent liable to the
claim of the petitioners?
HELD: Yes. The termination of the life of a juridical entity does not
by itself imply the diminution or extinction of rights demandable
against such juridical entity.
1.
a.
b.
If this method is resorted to, the board will only have a period
of 3 years to finish its task of liquidation
c.
Claims for or against the corporate entity not filed within the
period will become unenforceable as there exist no corporate
entity against which they can be enforced.
d.
2.
a.
b.
c.
3.
By appointment of a receiver
a.
During the course of liquidation and winding up, the assets will be
collected and realized, the rights and claims of creditors will be
settled or provided for and a distribution of the remaining assets
to the shareholders who are entitled thereto.
Therefore, liquidation or winding up of corporate affairs therefore
means the collection of all corporate assets, the payments of all
its debts and settlement of its obligations and the ultimate
distribution of corporate assets, if any of it remains, to all
stockholders in accordance with their proportionate stockholdings
in the corporation or in accordance with their respective contracts
of subscription.
After dissolution, a body corporate continues to exist for 3 years
for the purpose of liquidation and winding up of its affairs:
Sec. 122. Corporate liquidation. - Every corporation whose
charter expires by its own limitation or is annulled by forfeiture or
otherwise, or whose corporate existence for other purposes is
terminated in any other manner, shall nevertheless be continued as
a body corporate for three (3) years after the time when it would
have been so dissolved, for the purpose of prosecuting and
defending suits by or against it and enabling it to settle and close
its affairs, to dispose of and convey its property and to distribute its
assets, but not for the purpose of continuing the business for which
it was established.
At any time during said three (3) years, the corporation is
authorized and empowered to convey all of its property to trustees
for the benefit of stockholders, members, creditors, and other
persons in interest. From and after any such conveyance by the
corporation of its property in trust for the benefit of its stockholders,
members, creditors and others in interest, all interest which the
140
b.
c.
d.
e.
CORPORATION,
141
The defendant interposed the defense that the right against him
had already prescribed which was found by the lower court to be
tenable, the case not being filed within the 3 year period
prescribed under Sec. 77 of Act No. 1459.
142
143
The trial court ruled in favor of the government holding that the
amended complaint was precisely to include FH Burgess,
liquidator of the company, as party defendant.
ISSUE: WON the case should prosper?
HELD: Yes. It is to be recalled that the assessments against
appellant corporation for deficiency taxes due for its operations
since 1947 were made by the Bureau of Internal Revenue on
October 15, 1953, September 13, 1954 and November 8, 1954,
such that the first was before its dissolution and the last two not
later than six months after such dissolution. Thus, in whatever
way the matter may be viewed, the Government became the
creditor of the corporation before the completion of its dissolution
by the liquidation of its assets. Appellant F.H. Burgess, whom
it chose as liquidator, became in law the trustee of all its
assets for the benefit of all persons enumerated in Section
78, including its creditors, among whom is the
Government, for the taxes herein involved. To assume
otherwise would render the extra-judicial dissolution
illegal and void, since, according to Section 62 of the
Corporation Law, such kind of dissolution is permitted only
when it "does not affect the rights of any creditor having a
claim against the corporation." It is immaterial that the
present action was filed after the expiration of three years after
April 23, 1954, for at the very least, and assuming that judicial
enforcement of taxes may not be initiated after said three years
despite the fact that the actual liquidation has not been
terminated and the one in charge thereof is still holding the assets
of the corporation, obviously for the benefit of all the creditors
thereof, the assessment aforementioned, made within the three
years, definitely established the Government as a creditor of the
corporation for whom the liquidator is supposed to hold assets of
the corporation. And since the suit at bar is only for the collection
of taxes finally assessed against the corporation within the three
years invoked by appellants, their assignment of error cannot be
sustained.
Judgment of the trial court is affirmed.
STOCKHOLDERS UPON DISSOLUTION: Upon dissolution of a
corporation, it is considered in equity, even in the absence of a
statute that its assets are held for the benefit of its stockholders
after payment of its debts and will be so distributed to the said
stockholders in accordance with their proportionate interest in the
corporation or their contracts of subscription.
PREFERRED SHAREHOLDERS: It must herein be remembered
that holders of preferred shares may be granted certain rights or
privileges upon dissolution of the corporation. The preference may
be in the form of receiving a certain part or portion of corporate
assets upon dissolution. And, depending on their contracts of
subscription, they may or may not be entitled to share any of the
assets remaining, after they may have received their respective
preference in accordance therewith.
INCORPORATION OF A NEW CORPORATION: During the 3 year
period granted to a corporation to liquidate or wind up its affairs,
the BOD is not normally permitted to undertake any activity
outside of the usual liquidation of the corporation. There is,
however, nothing to prevent the stockholders from conveying
their respective shareholdings toward the creation of a new
corporation to continue the business of the old. This is because
winding up is the sole activity of a dissolved corporation that does
not intend to incorporate a new. If it does, however, it is not
unlawful for the old BOD to incorporate and transfer the assets of
a dissolved corporation to the new corporation intended to be
created as long as the stockholders have given their consent
(Chung Ka Bio vs. IAC)
LAPSE OF THE THREE YEAR PERIOD: If the 3 year period of
liquidation has elapsed and no effort to finally settle or close the
corporate affairs was undertaken, those having pecuniary interest
144
145
A.
146
147
1.
2.
3.
4.
5.
6.
D.
148
1.
2.
3.
4.
5.
149
The writ prayed for should be, as it hereby is, denied, with costs
against the petitioners.
ISOLATED TRANSACTION
MARSHALL-WELLS COMPANY, plaintiff-appellant,
vs.
HENRY W. ELSER & CO., INC., defendant-appellee
(G.R. No. 22015; September 1, 1924)
FACTS: Plaintiff sued defendant for the unpaid balance of a bill of
goods amounting to P2,660.74, for which the plaintiff holds
accepted drafts.
Defendant demurred on the ground that plaintiff had no capacity
to sue which the trial court granted. And in as much as the
plaintiff could not allege compliance with the statute, the order
was allowed to become final and no appeal was perfected.
ISSUE: WON obtaining a license is required before a foreign
corporation can maintain any kind of action in the courts of the
Philippine Islands?
HELD: No. The object of the statute was to subject the
foreign corporation doing business in the Philippines to
the jurisdiction of its courts. The object of the statute was
not to prevent the foreign corporation from performing
single acts, but to prevent it from acquiring a domicile for
the purpose of business without taking the steps
necessary to render it amenable to suit in the local courts.
The implication of the law is that it was never the purpose of the
Legislature to exclude a foreign corporation which happens to
obtain an isolated order for business from the Philippines, from
securing redress in the Philippine courts, and thus, in effect, to
permit persons to avoid their contracts made with such foreign
corporations. The effect of the statute preventing foreign
corporations from doing business and from bringing actions in the
local courts, except on compliance with elaborate requirements,
must not be unduly extended or improperly applied. It should not
be construed to extend beyond the plain meaning of its terms,
considered in connection with its object, and in connection with
the spirit of the entire law.
The law simply means that no foreign corporation shall be
permitted "to transact business in the Philippine Islands,"
as this phrase is known in corporation law, unless it shall
have the license required by law, and, until it complies
with the law, shall not be permitted to maintain any suit in
the local courts. A contrary holding would bring the law to the
verge of unconstitutionality, a result which should be and can be
easily avoided.
The order appealed from shall be set aside and the record shall be
returned to the court of origin for further proceedings. Without
special finding as to costs in this instance, it is so ordered.
HATHIBHAI BULAKHIDAS, petitioner,
vs.
THE HONORABLE PEDRO L. NAVARRO, as Presiding Judge
of the Court of First Instance of Rizal, Seventh Judicial
District, Pasig, Metro Manila, Branch 11 and DIAMOND
SHIPPING CORPORATION, respondent.
(G.R. No. L-49695; April 7, 1986)
FACTS: Petitioner, a foreign partnership, filed a complaint for
damages against respondent Diamond Shipping Corporation
having failed to deliver the goods shipped to it by petitioner to
their proper destination.
Said complaint alleged that the plaintiff is not doing business in
the Philippines and that it is suing under an isolated
transaction.
Defendant filed a motion to dismiss on the ground that plaintiff
has no capacity to sue which was granted.
150
RAILROAD
151
152
1.
2.
3.
WITH
INTENTION
TO
CONTINUE
DOING
ISSUE: WON the trial court acquired jurisdiction over the subject
matter and over the person of the defendant-appellant through
the proper service of summons?
153
. . . . And the only act it did here was to secure the services of
Luceno Pelingon to act as cook and chief steward in one of its
vessels authorizing to that effect the Luzon Stevedoring Co.,
Inc., a domestic corporation, and the contract of employment
was entered into on July 18, 1951. It further appears that
petitioner has never sent its ships to the Philippines nor has it
transported nor even solicited the transportation passengers
and cargoes to and from the Philippines. In words, petitioner
engaged the services of Pelingon not as part of the operation of
its business but merely to employ him as member of the crew
in one of its ships. That act apparently is an isolated one,
incidental, or casual, and "not of a character to indicate a
purpose to engage in business" within the meaning of the rule.
(Emphasis ours.)
ISSUE2: WON the single act done in this case can be considered
as doing business in the Philippines?
HELD: Yes. In the instant case, the testimony of Atty. Pablo
Ocampo that appellant was doing business in the Philippines
154
In Georg Grotjahn GMBH and Co. vs. Isnani, it was held that the
uninterrupted performance by a foreign corporation of
acts pursuant to its primary purposes and functions as a
regional area headquarters for its home office, qualifies
such corporation as one doing business in the country.
These foregoing instances should be distinguished from a
single or isolated transaction or occasional, incidental, or
casual transactions, which do not come within the
meaning of the law, for in such case, the foreign
corporation is deemed not engaged in business in the
Philippines.
Where a single act or transaction, however, is not merely
incidental or casual but indicates the foreign corporation's
intention to do other business in the Philippines, said single act or
transaction constitutes "doing" or "engaging in" or "transacting"
business in the Philippines.
In determining whether a corporation does business in the
Philippines or not, aside from their activities within the forum,
reference may be made to the contractual agreements entered
into by it with other entities in the country. Thus, in the Top-Weld
case (supra), the foreign corporation's LICENSE AND TECHNICAL
AGREEMENT and DISTRIBUTOR AGREEMENT with their local
contacts were made the basis of their being regarded by this
Tribunal as corporations doing business in the country. Likewise, in
Merill Lynch Futures, Inc. vs. Court of Appeals, etc., the FUTURES
CONTRACT entered into by the petitioner foreign corporation
weighed heavily in the court's ruling.
With the above-stated precedents in mind, we are persuaded to
conclude that private respondent had been "engaged in" or "doing
business" in the Philippines for some time now. This is the
inevitable result after a scrutiny of the different contracts and
agreements entered into by ITEC with its various business
contacts in the country, particularly ASPAC and Telephone
Equipment Sales and Services, Inc. (TESSI, for brevity). The latter
is a local electronics firm engaged by ITEC to be its local technical
representative, and to create a service center for ITEC products
sold locally. Its arrangements, with these entities indicate
convincingly ITEC's purpose to bring about the situation among its
customers and the general public that they are dealing directly
with ITEC, and that ITEC is actively engaging in business in the
country.
In its Master Service Agreement with TESSI, private respondent
required its local technical representative to provide the
employees of the technical and service center with ITEC
identification cards and business cards, and to correspond only on
ITEC, Inc., letterhead. TESSI personnel are instructed to answer
the telephone with "ITEC Technical Assistance Center.", such
telephone being listed in the telephone book under the heading of
ITEC Technical Assistance Center, and all calls being recorded and
forwarded to ITEC on a weekly basis.
What is more, TESSI was obliged to provide ITEC with a monthly
report detailing the failure and repair of ITEC products, and to
requisition monthly the materials and components needed to
replace stock consumed in the warranty repairs of the prior
month.
A perusal of the agreements between petitioner ASPAC and the
respondents shows that there are provisions which are highly
restrictive in nature, such as to reduce petitioner ASPAC to a mere
extension or instrument of the private respondent.
The "No Competing Product" provision of the Representative
Agreement
between
ITEC
and
ASPAC
provides:
"The
Representative shall not represent or offer for sale within the
Territory any product which competes with an existing ITEC
product or any product which ITEC has under active
development." Likewise pertinent is the following provision:
"When acting under this Agreement, REPRESENTATIVE is
155
3.
4.
That defendant Henry Herman signed and filed AOI with the
defendant Fidel Reyes, as Director of BCI, with the intention to
organize a domestic corporation to be known as Western
Electric Company, Inc. for the purpose, among others things,
of manufacturing, buying, selling and dealing generally in
electrical and telephone apparatus and supplies in violation
of a trademark over Western Electric existing in
Washington, DC.
HELD: Yes. In the case of Marshall-Wells Co. vs. Henry W. Elser &
Co. (46 Phil., 70, 76), this court held:
TRADEMARK INFRINGEMENT
156
157
We agree.
In the leading case of La Chemise Lacoste, S.A .v. Fernandez, (129
SCRA 373), we ruled:
But even assuming the truth of the private respondents
allegation that the petitioner failed to allege material facto in its
petition relative to capacity to sue, the petitioner may still
maintain the present suit against respondent Hernandes. As
early as 1927, this Court was, and it still is, of the view that a
foreign corporation not doing business in the Philippines
needs no license to sue before Philippine courts for
infringement of trademark and unfair competition. Thus,
in Western Equipment and Supply Co. v. Reyes (51 Phil. 11 5),
this Court held that a foreign corporation which has never done
any business in the Philippines and which is unlicensed and
unregistered to do business here, but is widely and favorably
known in the Philippines through the use therein of its products
bearing its corporate and tradename, has a legal right to
maintain an action in the Philippines to restrain the residents
and inhabitants thereof from organizing a corporation therein
bearing the same name as the foreign corporation, when it
appears that they have personal knowledge of the existence of
such a foreign corporation, and it is apparent that the purpose
of the proposed domestic corporation is to deal and trade in the
same goods as those of the foreign corporation.
Quoting the Paris Convention and the case of Vanity Fair Mills, Inc.
v. T. Eaton, Co. (234 F. 2d 633), this Court further said:
By the same token, the petitioner should be given the same
treatment in the Philippines as we make available to our own
citizens. We are obligated to assure to nationals of 'countries of
the Union' an effective protection against unfair competition in
the same way that they are obligated to similarly protect
Filipino citizens and firms.
In the case of of Cerverse Rubber Corporation V. Universal Rubber
Products, Inc. (174 SCRA 165), we likewise re-aafirmed our
adherence to the Paris Convention:
The ruling in the aforecited case is in consonance with the
Convention of Converse Rubber Corporation v. Universal Rubber
Products, Inc. (I 47 SCRA 165), we likewise re-affirmed our
adherence to the Paris Convention: the Union of Paris for the
Protection of Industrial Property to which the Philippines
became a party on September 27, 1965. Article 8 thereof
provides that 'a trade name [corporation name] shall be
protected in all the countries of the Union without the obligation
of filing or registration, whether or not it forms part of the
trademark.'
The mandate of the aforementioned Convention finds
implementation in Section 37 of RA No. 166, otherwise known
as the trademark Law:
Rights of Foreign Registrants. Persons who are nationals of,
domiciled in, or have a bona fide or effective business or
commercial establishment in any foreign country, which is a
party to an international convention or treaty relating to marks
or tradenames on the represssion of unfair competition to which
the Philippines may be party, shall be entitled to the benefits
and subject to the provisions of this Act ...
158
HELD: No. Respondent states that not only is the petitioner not
doing business in the Philippines but it also is not licensed to do
business in the Philippines. He also cites the case of Leviton
Industries v. Salvador (114 SCRA 420) to support his contention
The Leviton case, however, involved a complaint for unfair
competition under Section 21-A of Republic Act No. 166 which
provides:
159
CAPACITY TO SUE
160
and
and
To be sure, under the Rules of Court (Section 11, Rule 15) in force
prior to the promulgation of the Revised Rules on January 1, 1964,
it was not necessary to aver the capacity of a party to sue except
to the extent required to show jurisdiction of the court. In our
opinion, however, such rule does not apply in all situations and
under all circumstances. The theory behind a similar rule in the
United States is "that capacity ... of a party for purpose of suit is
not in dispute in the great bulk of cases, and that pleading and
proof can be simplified by a rule that an averment of such matter
is not necessary, except to show jurisdiction." 1 But where as in the
present case, the law denies to a foreign corporation the right to
maintain suit unless it has previously complied with a certain
requirement, then such compliance, or the fact that the suing
corporation is exempt therefrom, becomes a necessary averment
in the complaint. These are matters peculiarly within the
knowledge of appellants alone, and it would be unfair to impose
upon appellee the burden of asserting and proving the contrary. It
is enough that foreign corporations are allowed by law to seek
redress in our courts under certain conditions: the interpretation
of the law should not go so far as to include, in effect, an
inference that those conditions have been met from the mere fact
that the party suing is a foreign corporation.
It was indeed in the light of these and other consideration that
this Court has seen fit to amend the former rule by requiring in
161
Sec. 130. Amendments to articles of incorporation or bylaws of foreign corporations. - Whenever the articles of
incorporation or by-laws of a foreign corporation authorized to
transact business in the Philippines are amended, such foreign
corporation shall, within sixty (60) days after the amendment
becomes effective, file with the Securities and Exchange
Commission, and in the proper cases with the appropriate
government agency, a duly authenticated copy of the articles of
incorporation or by-laws, as amended, indicating clearly in capital
letters or by underscoring the change or changes made, duly
certified by the authorized official or officials of the country or state
of incorporation. The filing thereof shall not of itself enlarge or alter
the purpose or purposes for which such corporation is authorized to
transact business in the Philippines.
I.
162
AMENDMENT OF LICENSE
MERGER/CONSOLIDATION
REVOCATION OF LICENSE
163
164