Beruflich Dokumente
Kultur Dokumente
*Where the meaning is doubtful, the courts adopted the policy of resolving IN FAVOR OF
NEGOTIABILITY of the instrument.
*There is NO ORAL NI.
*The signature (of maker/drawer) is a prima facie evidence of his intention to be bound.
*If the signature placed in instrument, UNCLEAR what capacity person intended to sigh, he is deemed
INDORSER not maker/drawer.
*NI CEASES to be negotiable if the INDORSEMENT prohibits FURTHER negotiation of instrument.
Eg. Pay to Pedro Cruz.
*PLACE & DATE NOT ESSENTIAL to negotiability of instrument EXCEPT in cases, date IS necessary to
know the due/interest.
*Instead of promise to pay, other acceptable terms can be used:
- I agree to pay
- I will pay
- I bind myself to pay
- good to A or order
- due to A or order
- I acknowledge to be indebted
*MERE acknowledgment of debt w/o the word ORDER or BEARER (words of negotiability) DOES NOT
satisfy negotiability.
*The word TO THE ORDER OF and OR ORDER is a promise to pay as ordered/commanded by PAYEE but
may be payable to BEARER.
*When NO TIME of payment is expressed, an instrument is payable ON DEMAND.
*A note may be signed by SEVERAL persons either JOINTLY or JOINTLY AND SEVERALLY.
PN maker, payee
BofE drawer, drawee, payee (parties need NOT ALL be distinct persons. Thus, drawer may draw on
himself payable to his own order.)
P1000
*The words (in BofE) CHARGE THE SAME TO THE ACCOUNT OF means amount to be paid by DRAWEE is
to be charged against the funds of DRAWER. But this may be omitted.
2 IDEA & PURPOSE OF BofE
1. DRAWERs funds in hands of DRAWEE
2. Liability of DRAWEE for non-payment
- If DRAWEE refuses to accept when he has funds for purpose, he is LIABLE TO DRAWER (not to PAYEE)
for resulting damages & harm done to his (DRAWER) credit.
-If DRAWER no funds in DRAWEE, presumed that DRAWER made arrangements with DRAWEE so he will
honor the bill. In such case, DRAWEE must look to the DRAWER for reimbursement and NOT TO BONA
FIDE HOLDER.
Section 2 Certainty as to sum, what constitutes
Sum payable is SUM CERTAIN although paid:
- w/ interest
- by stated installments
- by stated installments w/ provision that upon default in payment of any installment/interest, the
whole shall become due
- w/ exchange, fixed/current rate
- w/ costs of collection/attorneys fee in case payment not made at maturity
*If instrument calls for an ACT OTHER THAN payment of money NOT NEGOTIABLE
*A note giving the MAKER the right to ascertain the AMOUNT payable NON-NEGOTIABLE
*A promise to pay P1000 in two installments or in installments NON-NEGOTIABLE
*Acceleration at option of HOLDER NON-NEGOTIABLE
*Acceleration at option of MAKER NEGOTIABLE
(The MAKER can avoid acceleration by paying the installments on their due date)
*The promise/order to pay w/ exchange NEGOTIABLE
(EXCHANGE charge for providing funds, may be fixed/current rate; eg. compensating balance)
*Payment in FOREIGN CURRENCY NEGOTIABLE
*Payment w/ EXCHANGE RATE NEGOTIABLE
- applicable only to foreign bills
*If payment not made at maturity, then there is ADDED amount due (eg. Cost of collection, attorneys
fee) NEGOTIABLE
*Attorneys fee may be REDUCED by courts if found UNREASONABLE; if attorneys fee NOT specified, it
shall be in REASONABLE SUM.
*A provision of to pay ALL costs, charges and expenses incurred by PAYEE in ANY legal proceedings for
collection of debt NON-NEGOTIABLE
*Acquisition of instrument AFTER MATURITY
- a transferee acquiring an instrument when it is OVERDUE would NOT BE HDC & would hold
instrument subject to defenses, as if it were NON-NEGOTIABLE.
is
- If an instrument is incomplete when delivered, the HOLDER has prima facie authority to fill up the
blanks thereon.
- If a blank paper is delivered by the person making the signature, the HOLDER has prima facie
authority to fill it up for any amount if the person making the signature INTENDED TO CONVERT it into
NI.
- In either case of the above (2) situations, the presumption is that the BLANK was filled in
ACCORDANCE W/ THE AUTHORITY GIVEN and W/IN REASONABLE TIME.
4. RIGHT OF HDC
- not enforceable; personal defenses
- The rule is founded upon the principle that where one of 2 persons must suffer by the bad faith of
another, the loss must fall upon the one who FIRST REPOSED confidence and made it possible for the
loss to occur.
Section 15 INCOMPLETE and UNDELIVERED (real defense)
When an INCOMPLETE instrument is UNDELIVERED, if completed & negotiated w/o authority, be a VALID
CONTRACT in the hands of ANY HOLDER, as against any person whose signature was placed thereon
before delivery.
In the absence of any delivery, the instrument though complete in all particulars, there is NO
CONTRACT.
(2) RULES
1. DEFENSE EVEN AGAINST HDC
- Law is specific that instrument is NOT a VALID CONTRACT in the hands of any HOLDER even HDC.
2. DEFENSE AVAILABLE TO PARTIES PRIOR TO DELIVERY
- The invalidity of the instrument is only w/ reference to the parties whose signatures appear on the
instrument BEFORE and NOT AFTER DELIVERY.
(eg. A(maker) P(steals) B C D; Instrument can be enforced against P, B, C because, as indorsers,
they warrant that the instrument is GENUINE and in all respects what it purports to be, etc. As their
signatures appear on the instrument after delivery, the instrument is valid as to them; In case of P, he
is liable not merely because he is an indorser but also because he is the one responsible for the theft,
and the completion and negotiation of the instrument.)
Section 16 COMPLETE and UNDELIVERED (personal defenses)
(4) RULES
1. UNDELIVERED Every contract on NI even if it is completely written is INCOMPLETE AND REVOCABLE
UNTIL it is delivery for the purpose of giving it effect.
a. DELIVERY transfer of possession, actual/constructive, from one person to another. It may be made
either by the maker/drawer himself or through a duly authorized agent.
b. ISSUE FIRST delivery of the instrument, complete in form, to a person who takes it as HOLDER.
C. HOLDER PAYEE/INDORSEE of bill/note who is in possession of it, or the BEARER thereof.
2. IN POSSESSION OF PARTY OTHER THAN HDC
- If a complete instrument is found in the possession of an IMMEDIATE PARTY (know the
conditions/limitations placed upon delivery of instrument) or a REMOTE PARTY (indirect contractual
relation to each other) other than HDC, there is prima facie presumption of delivery but subject to
rebuttal.
b. The PRINCIPAL is liable if a duly authorized agent signs on his own behalf.
c. In case of forgery, the FORGER is LIABLE even if his signature does not appear on the instrument.
d. When the ACCEPTOR makes his acceptance of a bill on a SEPARATE paper.
e. Where a person makes a WRITTEN promise to ACCEPT a BILL BEFORE it is drawn.
Section 19 Signature by agent; authority; how shown
- The MAKER/DRAWER may sign the instrument PERSONALLY or by another DULY AUTHORIZED by him.
- The authority of the AGENT may be shown, as in other cases of agency, to have been given ORALLY or
in WRITING subject to the provisions of the STATUTE OF FRAUDS. It has been held competent for the
AGENT to sign simply the PRINCIPALS NAME and to show his authority to do so by other evidence.
Section 20 Liability of person signing as agent, etc.
(3) When agent MAY ESCAPE personal liability:
1. He is duly authorized;
2. He add words to his signature indicating that he signs AS AN AGENT, that is, for or on behalf of a
principal, or I a representative capacity;
3. He discloses his PRINCIPAL.
*The MERE addition of DESCRIPTIVE WORDS w/o DISCLOSING the PRINCIPAL will not relieve signer from
personal liability, although he add to his signature the word AGENT, TRUSTEE, ADMINISTRATOR,
GUARDIAN, or DIRECTOR (words added are but description personae describing the person who signed
the instrument)
Section 21 Effect of signature by PROCURATION
PROCURATION act by w/c a PRINCIPAL gives power to another to act in HIS PLACE as he could himself.
- has special and technical meaning; gives a WARNING that the AGENT has but a LIMITED AUTHORITY so
that IT IS the duty of the person dealing w/ him to INQUIRE into the extent of his (AGENT) authority.
*The PRINCIPAL is NOT BOUND if the agent has exceeded the ACTUAL LIMITS of his authority, although
he may acted w/in the general scope of the agency.
(eg. A signature by procuration may be made as follows:
A Mercado
Per Procuration: B San Miguel
Instead of per procuration, per proc., P.P., or pp may be used.
Section 22 Effect of indorsement by INFANT or CORPORATION
The indorsement/assignment of the instrument by a corporation or by an infant PASSES the property
therein, notwithstanding that from want of capacity, the corporation or infant may incur NO LIABILITY
thereon.
EFFECT OF INDORSEMENT BY INCAPACITATED PERSONS
1. MINORS
- As a general rule, contracts entered into by a minor ARE VOIDABLE at his instance or at the instance
of his guardian.
a. While MINOR NOT BOUND by his indorsement for lack of capacity, he CAN TRANSFER
certain RIGHTS. Minority is a real defense available to MINOR.
NEGOTIATION
Only to NI
Transferee is HOLDER
ASSIGNMENT
All contracts
Transferee
is
ASSIGNEE
HDC - REAL defenses ASSIGNEE
PERSONAL
and
REAL defenses
May acquire BETTER Merely steps in shoes
title than PRIOR party of ASSIGNOR
GENERAL
ASSIGNOR does NOT
INDORSER warrants warrant SOLVENCY
SOLVENCY of PRIOR of prior parties (unless
parties
stipulated
or
INSOLVENCY known
to him)
ASSIGNOR
IS
LIABLE even w/o
NOTICE OF DISHONOR
INDORSER
NOT
LIABLE (unless there
is
PRESENT-MENT
and
NOTICE
of
DISHONOR)
Governed by NIL
Governed by CIVIL
CODE on assignment
of credits
Just like signature of maker/drawer, INDORSEMENT may be written in INK, PRINTED, (RUBBER)
STAMPED, TYPEWRITTEN, or any means that will create a mark.
LOCATION OF INSTRUMENT
1. On instrument itself
*As a matter of practice, indorsement is WRITTEN AT THE BACK of instrument (referred to as dorsal
portion of instrument) but it may be written on the face (although it would entail risk of being held
liable as co-maker [PN] or co-drawer [BofE].
2. Upon paper attached thereto (allonge)
*A paper that is merely clipped/pinned to an instrument is NOT an ALLONGE, and anything written on
it CANNOT be considered as INDORSEMENT. Accordingly, person in possession of instrument is NOT the
HOLDER.
*If there is still space for indorsements, the use of ALLONGE should be avoided so as not to cause
CONFUSION on ORDER OF LIABILITY of indorsers.
Section 32 Indorsement must be of entire instrument
(object of provision: to avoid multiplicity of suits/actions in court)
NO NEGOTIATION if indorsement transfer ONLY PART of AMOUNT payable (not HOLDER but merely is an
ASSIGNEE; renders instrument NON-NEGOTIABLE, NOT PAYEE/BEARER of note, NOT INDORSEE.
(eg. The total payable is P10 000, Pay to A P8 000 NOT VALID NEGOTIATION)
Exception to entirety: Where instrument has been paid in part, it may be indorsed as to the RESIDUE.
(eg. The total payable is P10 000, P2 000 is already paid. Pay to A P8 000 VALID NEGOTIATION)
NO NEGOTIATION if indorsement transfer instrument to 2 or more indorsees severally.
(eg. Pay to A P8 000 and pay to B P2 000 NOT VALID NEGOTIATION)
However, there is VALID NEGOTIATION if indorsees are JOINT.
(eg. Pay to A and B P10 00 VALID NEGOTIATION) A and B must BOTH indorse UNLESS they are
PARTNERS, or one is authorized to indorse for both of them, in w/c case, only one may indorse.
Section 33 Kinds of Indorsement
5 CLASSIFICATIONS OF INDORSEMENT
1. As to the METHODS OF NEGOTIATION
Special
Blank
2. As to the KIND OF TITLE TRANSFERRED
Restrictive
Non-restrictive
3. As to the SCOPE OF LIABILITY OF INDORSER
Qualified
Unqualified (general)
4. As to the PRESENCE/ABSENCE OF LIMITATIONS
Conditional
Unconditional
5. Other kinds of indorsements
JOINT payable to two or more persons jointly
SUCCESSIVE in succession by several indorsers who are liable prima facie in ORDER in w/c they
indorse
REGULAR Delivery Indorsement
IRREGULAR (ANOMALOUS) (placed signature in blank before delivery) Indorsement Delivery
FACULTATIVE indorser ENLARGES his liability by writing over his signature a WAIVER of usual demand
(formal protest) and NOTICE OF NON-PAYMENT (dishonor).
(Sgd.) P
(sgd.) A
RESTRICTIVE INDORSEMENT RESTRAINS the negotia-bility of instrument for purpose or to the person
stated therein.
a. Prohibits further negotiation of instrument.
(becomes NON-NEGOTIABLE)
Pay to A only
Pay to A and to no other person
Here, A is the only one authorized to receive payment.
b. Constitutes INDORSEE the AGENT OF INDORSER (AGENCY type: AGENT NO TITLE to instrument;
holds instrument as AGENT of principal, the restrictive indorser subject to restrictive indorsement.)
Pay to B for collection
Pay to B for collection and remittance
Pay to B for collection only
Pay to B for deposit
c. Vests title in INDORSEE in TRUST for or use of some other person
(TRUST type: transfers TITLE to INDORSEE NOT FOR HIMSELF but in trust of for BENEFIT of another
person including INDORSER. The INDORSEE CANNOT NEGOTIATE instrument for OWN BENEFIT BUT FOR
BENEFICIAL OWNER.)
Pay to C in trust for D
Pay to C as trustee for D
Pay to A for my use
Pay to C for the use of D
Mere absence of words of negotiability does NOT make the indorsement restrictive.
*BUT if there are restrictive words stated like only, it prevents further negotiation, become
restrictive indorsement, and NON-NEGOTIABLE.
Note: This is only a handful of reviewer. I hope this helps. :)
Posted by Arleen Dadizon at 1/17/2014 06:32:00 PM
Reactions:
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8 comments:
1.
AnonymousNovember 11, 2014 at 2:59 AM
hi ate thank you for sharing your notes :) i copied to help me in understanding the
law on nego.inst. i'll make use of it as a review. thank you again :) Godbless :))
Reply
Replies
1.
Arleen DadizonDecember 13, 2014 at 5:08 AM
Welcome! ;) Good luck!
Reply
2.
AnonymousNovember 11, 2014 at 2:59 AM
hi ate thank you for sharing your notes :) i copied it to help me in understanding the
law on nego.inst. i'll make use of it as a review. thank you again :) Godbless :))
Reply
3.
Liv MoreAugust 9, 2015 at 3:45 AM
salamat sa reviewer na to...
Reply
4.
Maristela Alfafara RegidorDecember 6, 2015 at 7:22 PM
Thank you :D
Reply
5.
Publius301December 20, 2015 at 9:48 AM
Hi and thanks for the post!... In regards to "Allonge"..is this your interpenetration or
does the act or notes specifically say this. I could not find that term in the Act
itself.... Thanks!
Reply
Replies
1.
Arleen DadizonDecember 31, 2015 at 1:32 AM
Hi Publius301! Thank you for appreciating this humble post. Allonge isn't
stated in the Negotiable Instruments Law but in practice, "allonge" is a
paper attached to a negotiable instrument. That paper is called allonge
because... I don't know! Haha jk but you can try googling it so you can
fully understand what it is and what is its purpose. :) Thank you!!! :)
Reply
6.
Publius301December 20, 2015 at 9:49 AM
Hi and thanks for the post!... In regards to "Allonge"..is this your interpenetration or
does the act or notes specifically say this. I could not find that term in the Act
itself.... Thanks!
Reply
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4 ELEMENTS OF OBLIGATION
1. ACTIVE SUBJECT (creditor/obligee) whose obligation is constituted
2. PASSIVE SUBJECT (debtor/obligor) has duty to give, to do or not to do
3. OBJECT/PRESTATION subject matter
4. JURIDICAL/LEGAL TIE (vinculum/efficient cause) reason
CIVIL OBLIGATION
NATURAL OBLIGATION
5 SOURCES OF OBLIGATION
1. LAW
2. CONTRACTS
3. QUASI-CONTRACTS arise from lawful, voluntary acts; no one shall be unjustly enriched...
2Kinds
a. Solutio indebiti something received (delivered on a mistake), no right to demand it
b. Negotiorum gestio voluntary mgt of property/affairs of another w/o his knowledge/consent
4. QUASI-DELICT/TORTS/CULPA AQUILIANA arise from damage; fault/negligence
3 KINDS OF FRUITS
1. NATURAL w/o human intervention
2. INDUSTRIAL w/ human intervention
3. CIVIL derived by virtue of juridical relation
1. DEFAULT/MORA delay
3kinds
a. Mora solvendi debtors delay to give (real ob.), to do (personal ob.)
b. Mora accipiende creditors delay to accept
c. Compensatio Morae delay of both in reciprocal obligation
CONCEPT OF DELAY
General Rule: No demand, No delay
Exceptions:
1. Law states
2. Obligation states
3. Time is the essence
4. Demand be useless if delay
5. Debtor guilty of delay
EFFECTS OF DELAY
1. Damages
2. When to deliver determinate thing, STILL LIABLE in fortuitous event.
2. FRAUD/DOLO conscious, deliberate, intentional evasion of fulfillment
2Kinds
a. Dolo causante/Causal fraud fraud in obtaining consent; consent is defective, contract is
voidable. Remedy: annulment
b. Dolo incidente/Incidental fraud fraud w/c vitiates consent. Remedy: damages
TRANSMISSIBILITY OF RIGHTS
General Rule: ALL RIGHTS are transmissible.
Exceptions:
1. Law states
2. Contract states
3. Obligation is purely personal
10 Kinds of Obligation
1. Pure
2. Conditional
3. Alternative
4. Facultative
5. Joint
6. Solidary
7. Divisible
8. Indivisible
9. Obligation w/ a period
10. Obligation w/ a penal clause
1. PURE OBLIGATION
- w/o condition, demandable at once (pure has resolutory condition/period)
2. CONDITIONAL OBLIGATION
- there is condition in performance; future & uncertain
2Kinds
a. Suspensive condition happening of condition gives RISE to obligation
b. Resolutory condition happening of condition EXTINGUISHES obligation
RULES in case of Loss, Improvement, or Deterioration of thing during the pendency of condition
1. LOST
2. DETERIORATION
a. w/ debtors fault - (1) cancel obligation & damages; or (2) fulfill obligation w/ damages
b. w/o debtors fault creditor suffer impairment
3. IMPROVEMENT
a. By nature/time benefit to creditor
b. at expense of debtor debtor no right than that granted to usufructuary (debtor no right to
compensate amount for improvement)
3. OBLIGATION W/ A PERIOD
- demandability/extinguishment subject to the expiration of period
PERIOD
CONDITION
certain
uncertain
future only
4. ALTERNATIVE OBLIGATION
- w/ 2 or more prestations, only 1 is due.
5. FACULTATIVE OBLIGATION
- w/ ONLY 1 prestation but can be substituted.
ALTERNATIVE OBLIGATION
FACULTATIVE OBLIGATION
If 1 of the prestation is
illegal, others may be valid,
obligation remains
loss/impossibility of ALL
prestations due, w/o
debtors fault, extinguishes
obligation
6. JOINT OBLIGATION
- obligation is to be paid proportionately by debtors or to be demanded proportionately by creditors
7. SOLIDARY OBLIGATION
- each one of debtors has right to render or each one of creditors has right to demand the entire
compliance w/ prestation
SYNONYMS
JOINT Obligation
proportionate
SOLIDARY
Obligation
individually &
collectively
1. Law states
2. Stipulation states
3. Nature of obligation requires
8. DIVISIBLE OBLIGATION
- prestation is capable of partial performance
9. INDIVISIBLE OBLIGATION
- prestation incapable of partial performance
1. PAYMENT/PERFORMANCE
- Payment means delivery of money & performance of obligation
2 PLACE OF PAYMENT
1. At place agreed upon
2. If w/o agreement
a. Object is indeterminate paid at domicile of DEBTOR
b. Object is determinate place of thing at the time of constitution of obligation
a. APPLICATION OF PAYMENT
- designation of debt to w/c payment must be applied when debtor has several obligations of same
kind in favor of same creditor.
b. CESSION
- debtor abandons ALL his property for creditors benefit to obtain payment from proceeds of his
property
CESSION
DACION IN PAYMENT
all properties
act of novation
transfer ownership
may happen
during solvency of debtor
5 REQUISITES OF CONSIGNATION
1. Debt due.
2. Creditor refused the tender of payment w/o just cause
3. Notice of consignation already given to persons interested in fulfillment of obligation
4. Consignation of thing/amount due
5. Subsequent notice of consignation to interested persons
3. CONDONATION/REMISSION
- gratuitous abandonment of right by the creditor
3. Obligation is demandable.
4. CONFUSION/MERGER
- meeting in 1 person of qualities of debtor & creditor w/ same obligation
5. COMPENSATION
- 2 persons are debtors & creditors of each other
2. As to origin or cause
a. LEGAL by law
b. VOLUNTARY/CONVENTIONAL agreement of parties
c. JUDICIAL order from the court
d. FACULTATIVE 1 of parties can choose/oppose claiming compensation
6. NOVATION
- substitution/change of obligation
- substitution of debtor
- subrogation of creditor
4 REQUISITES OF NOVATION
1. Old valid obligation.
2. Agreement of parties to new obligation.
3. Extinguishment of old obligation.
4. Validity of new obligation.
b. Consent of creditor.
2. DELEGACION all must agree (creditor, old debtor, new debtor)
3REQUISITES
a. Initiative from old debtor.
b. Consent of debtor.
c. Acceptance by creditor.
7. SUBROGATION
- change of creditor
2 KINDS OF SUBROGATION
1. CONVENTIONAL consent of original parties & 3rd person
2. LEGAL by law
a. creditor pays another preferred creditor even w/o debtors knowledge
b. 3rd person pays the express approval of debtor
c. 3rd person pays even w/o knowledge of debtor
3 ELEMENTS OF CONTRACT
1. ESSENTIAL w/o them, contract cannot exist
a. CONSENT of contracting parties
b. OBJECT CERTAIN subject matter
c. CAUSE/CONSIDERATION
In some contracts, ff are also essential:
d. FORM
e. DELIVERY
3. ACCIDENTAL various particular stipulations that may be agreed upon by contracting parties
2. PARTIES OBLIGATED
a. UNILATERAL only 1 has obligation
b. BILATERAL both parties require to render reciprocal prestations
3. CAUSE
a. ONEROUS exchange of considerations
b. GRATUITOUS no consideration received in exchange of what is given
c. REMUNERATORY something is given for benefit/service that had been rendered previously
4. RISK OF FULFILLMENT
a. COMMUTATIVE equivalent values are given by both parties
b. ALEATORY fulfillment of contract depends on chance (eg. insurance)
5. IMPORTANCE
a. PRINCIPAL contract may stand alone (eg. sale, partnership)
b. ACCESSORY existence depends on another contract (pledge, guarantee)
c. PREPARATORY contract not an end by itself but a means thru w/c other contracts may be made
(eg. agency)
6. NAME
a. NOMINATE contract given a particular/special name (eg. partnership)
b. INNOMINATE not given special name (eg. I give that you may give)
7. SUBJECT MATTER
a. Contracts involving things
b. Contracts involving rights/credits
c. Contracts involving services
3 STAGES OF CONTRACT
1. PREPARATION/CONCEPTION preparatory steps to perfect contract
2. PERFECTION/BIRTH meeting of minds between 2 contracting parties
3. CONSUMMATION/TERMINATION terms of contract are performed, & contract is fully executed
2. MUTUALITY OF CONTRACTS
- the contract must bind both parties; its validity/compliance cannot be left to the will of one of them
3. RELATIVITY OF CONTRACTS
- Contracts take effect only between the parties, their assigns & heirs except when there are rights &
obligations not transmissible:
a. by their nature
b. by stipulation (stipulation por autri)
c. by provision of law
4. CONSENSUALITY OF CONTRACTS
- Contracts are perfected by mere consent
Exceptions:
a. REAL CONTRACTS perfected by delivery
b. FORMAL/SOLEMN CONTRACTS special form required for its perfection
5. OBLIGATORINESS OF CONTRACTS
- The contract, once perfected, has the force of law between parties which bound to comply in good
faith
1. Agreement of parties
2. Law on Obligations & Contracts
3. Rules on most analogous nominate contract
4. Customs of place
CONSENT
- meeting of offer (certain) & acceptance (absolute) upon a thing
5 REQUISITES OF CONSENT
1. Must be given by 2 or more parties
2. Parties are capacitate to enter in contract
3. No vitiation of consent
4. No conflict between declared & intended
5. Legal formalities must be complied
7 RULES ON OFFER/ACEPTANCE
1. An offer must be certain.
2. Business advertisements for sale are NOT offers but ONLY invitations to make an offer.
3. Advertisements for bidders are ONLY invitations.
4. An acceptance made by letter/telegram does NOT bind offeror EXCEPT from the TIME it came to his
knowledge.
5. An offer made through an agent is accepted from the TIME the acceptance is done through an agent.
6. An offer is ineffective upon death, insanity, insolvency, of EITHER party BEFORE acceptance is made.
7. When offeror allowed offeree a certain period to accept, offer MAY be withdrawn AT ANYTIME unless
there is something PAID/PROMISED.
3 persons who CANNOT GIVE CONSENT to a contract (if entered into, contract is voidable)
1. UNEMANCIPATED MINORS
2. INSANE/DEMENTED PERSONS (unless they acted DURING LUCID INTERVAL)
3. DEAF-MUTES who DO NOT know how to write
DEMENTED PERSON NOT exactly insane; difficult to distin-guish right from wrong
LUCID INTERVAL period when an INSANE has acquired SANITY temporarily, therefore, capacitated to
enter into a valid contract
5 VICES OF CONSENT
- NOTE: When there is a DEFECTIVE CONSENT of EITHER of parties, contract is voidable;
Remedy:annulment of contract.
1. MISTAKE/ERROR
2. FRAUD/DECEIT
3. VIOLENECE
4. INTIMIDATION
5. UNDUE INFLUENCE
1. MISTAKE/ERROR
- wrong conception & lack of knowledge upon a thing
4 RULES ON MISTAKE
1. Mistake to identity/qualifications of either of parties will vitiate consent ONLY when IT is
theprincipal cause of contract.
2. Simple mistake of account must be corrected.
3. No mistake if parties knew the risk/doubt affecting OBJECT of contract.
4. When one of parties is unable to read or the contract is in language not understood by him, &
mistake/fraud is alleged, the person enforcing the contract must FULLY explained the terms to him.
2. FRAUD/DOLO
- when through insidious words/machinations of one of the parties, INDUCED the other to enter into a
contract, & w/o them, he will not agree.
DOLO CAUSANTE
DOLO INCIDENTE
Serious
Not serious
to
valid;
liable
7 RULES OF FRAUD
1. Failure to disclose facts when these needs to be revealed, is a fraud.
2. Fraud should be SERIOUS (dolo causante) & SHOULD NOT be done by BOTH parties to make
contractvoidable.
3. Incidental fraud (dolo incidente) ONLY obliges person to PAY DAMAGES.
4. Usual exaggerations in trade, when other party know the real facts, is NOT FRAUD.
5. A mere expression of opinion is NOT FRAUD UNLESS made by an expert & the other party relies
on his special knowledge.
6. Misrepresentation made in good faith is NOT FRAUD but may constitute an error.
7. Misrepresentation by 3rd person DOES NOT vitiate consent UNLESS it created substantial mistake.
3. VIOLENCE
- serious/irresistible force is employed.
2 RULES ON VIOLENCE
1. Serious/irresistible force is employed w/c constitutes the reason why one entered into a contract.
2. Violence ANNULS obligation although it is DONE by 3 rd person not part of contract.
4. INTIMIDATION
- 1 of the parties is compelled by a reasonable & well-grounded fear of an imminent & grave evil upon
his person/property to give his consent.
3 RULES ON INTIMIDATION
1. Age, sex, & condition of person must used to determine the degree of intimidation.
VIOLENCE
INTIMIDATION
External
Internal
Physical contact/coercion
5. UNDUE INFLUENCE
- a person takes improper advantage of his power over others will, depriving the other to
hisreasonable freedom of choice.
SIMULATION OF CONTRACT
- process of INTENTIONALLY deceiving others by producing a contract not really exist (absolute
simulation), or w/c is different from true agreement (relative simulation).
b. purpose is contrary to law, morals, good customs, public order, public policy
4 REQUISITES OF CAUSE
1. It is just & equitable.
2. It exists.
3. It is lawful.
4. It is true.
LESION
- inadequacy of cause (eg. insufficient price for thing sold)
RULES ON LESION
- Lesion DOES NOT invalidate contract, except there is:
a. Fraud
b. Mistake
c. Undue influence
2 FORM OF CONTRACTS
1. Contracts in writing
2. Contracts in a public instrument
REFORMATION OF INSTRUMENTS
- REMEDY in equity in w/c a written instrument is made/construed to the REAL intention of parties
when there is an error/mistake.
5 RESCISSIBLE CONTRACTS
1. Those entered by guardians & suffered LESION by more than of value of the value that is the
OBJECT.
2. Those agreed upon in representation of absentees, if the absentees suffered LESION.
3. Those undertaken in FRAUD of creditors when the creditors cannot further claim.
4. If entered into contract w/o knowledge/approval of litigants under litigation.
5. Contracts subjected to rescission declared by law.
3 VOIDABLE CONTRACTS
1. One of the parties INCAPABLE of giving consent to a contract.
2. Those where consent vitiates by vices of consent. (MFVIU)
3. Those agreed in the state of drunkenness/hypnotic spell.
3 UNENFORCEABLE CONTRACTS
1. Those entered in name of other person, or who acted BEYOND his powers.
2. Those who do not comply w/ the Statute of Frauds.
3. Both parties are incapable of giving consent to a contract.
7 VOID/INEXISTENT CONTRACTS
1. Those w/c are ABSOLUTELY simulated/fictitious.
2. Those w/c contemplate an impossible service.
3. Those whose OBJECT is outside the commerce of man.
4. Those whose CAUSE/OBJECT did not exist at time of tran-saction.
5. Those whose CAUSE/OBJECT/PURPOSE is contrary to law, morals, good customs, public order, or
public policy.
6. Those where INTENTION of parties to principal object CANNOT be ascertained.
7. Those expressly prohibited/declared VOID by law.