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LAW ON CREDIT TRANSACTIONS

A. Definition
Loan/Mutuum, Commodatum, Deposits, Guaranty, Pledge, Mortgage,
AntiChresis
B. Characteristics

C. Distinctions
E. Kinds
F. Voluntary Deposit
G. Obligations of the Depositary
H. Persons to whom Return of Thing Deposited Must be Made
I. Place of Return of Thing Deposited
J. Time of Return of Thing Deposited
General Rule: Upon demand or at will, whether or not a period has been
stipulated.
K. Right of Depositary to Return Thing Deposited
L. Alteration of Depositary’s Heir
M. Relation between Bank and Depositor
N. Obligations of Depositor
1. He is obliged to pay expenses for the preservation of the thing deposited, if
deposit is gratuitous.
2. He is obliged to pay for losses incurred due to the character of the thing
deposited.
See Exceptions:
O. Necessary Deposit
1. Hotelkeeper is liable regardless of the amount in the following cases:
2. Hotelkeeper is not liable in the following cases:
P. Judicial deposit or Sequestration
Art. 2005. A judicial deposit or sequestration takes placewhen an
attachment or seizure of property in litigation is ordered.

V. GUARANTY
A. Definition -
B. Characteristics
B.2 SURETYSHIP
C. Distinction between Guaranty and Suretyship
D. Recent Jurisprudence on Suretyship

A surety’s liability to the creditor or promisee of the principal is


said to be direct, primary and absolute. In other words, he is
directly, primarily and equally bound with the principal as original
promissor although he possesses no direct or personal interest over
the latter’s obligations nor does he receive any benefits therefrom.

E. Rules Governing the Nature and Extent of Guaranty


1. G.R.-Guaranty is generally gratuitous Exception: contrary
stipulation

2. Guaranty is an accessory contract therefore there must be a valid


principal obligation for guaranty to be valid. Guarantor may secure
the performance of voidable, unenforceable, natural, conditional,
and future obligations (Article 2052).
3. Guarantor’s liability cannot exceed the principal obligation (Article 2054).
4. The qualifications of a guarantor are:
- He possesses integrity;
- He has capacity to bind himself; and
- He has sufficient property to answer for the obligation which he
guarantees
1. Where the creditor has required and stipulated that a specified person
should be a guarantor, the substitution of guarantor may not be
demanded (Article 2057) because in such a case the selection of the
guarantor is a term of the agreement and as a party, the creditor, is
therefore, bound thereby (see Articles 1159, 1306).

F. Effects of Guaranty between the


Guarantor and the Creditor

1. G.R.-Guarantor has the right to the benefit of excussion or exhaustion of


the debtor’s property before he can be compelled to pay.

Exceptions:
a) if guarantor has expressly renounced excussion
b) if guarantor has bound himself solidarily with the debtor (suretyship)
c) in case of debtor’s insolvency
d) when guarantor has absconded or cannot be sued within the
Philippines unless he left a manager or representative
e) if it may be presumed that an execution on the debtor’s property will
not satisfy the obligation
f) if guarantor does not set up the benefit of excussion and fails to point
out to the creditor available property of the debtor within the
Philippines
g) if he is a judicial bondsman and sub-surety
h) where a pledge or mortgage has been given by the guarantor as a
special security
i) if guarantor fails to interpose it as a defense before judgment is
rendered against him (Saavedra vs. Price, 68 Phil. 669)

2. A compromise between the creditor and the principal debtor benefits the
guarantor but does not prejudice him. A compromise which is entered into
between the guarantor and the creditor benefits but does not prejudice the
principal debtor (Article 2063).

3. Guarantor is likewise entitled to the benefit of division where there are


several guarantors of only one debtor and for the same debt. Guarantor’s
liability is only joint therefore, they are not liable beyond the shares which they
are respectively bound to pay (Article 2065).

Exceptions: a) solidarity
B) if any of the circumstances in Article 2057 should take
place.

G. Effects of Guaranty between the Debtor and the Guarantor


1. Guaranty is a contract of indemnity. The guarantor who pays for a debtor
must be indemnified by the latter. The indemnity comprises:

1.1 the total amount of the debt;


1.2 the legal interest thereon from the time the payment was made known to
the debtor, even though it did not earn interest for the creditor;
1.3 The expenses incurred by the guarantor after having notified the debtor
that payment had been demanded of him;
1.4 Damages, if they are due (Article 2066)

Exceptions:

a) Where the guaranty is constituted without the knowledge or against the


will of the principal debtor, the guarantor can recover only insofar as
the payment had been beneficial to the debtor (Article 2050)
b) Payment by a third person who does not intend to be reimbursed by the
debtor is deemed to be a donation, which, however, requires the
debtor’s consent. But the payment is in any case valid as to the creditor
who has accepted it (Article 1238)

c) The right to demand reimbursement is subject to waiver.

2. Guarantor has the right of subrogation against the debtor to enable him to
enforce the indemnity granted in Article 2066 and he cannot demand more than
what he actually paid (Article 2067).
3. Guarantor has the right to proceed against the debtor even before
payment in the following instances:

1.1 When he is sued for the payment;


1.2 In case of insolvency of the principal debtor;
1.3 When the debtor has bound himself to relieve him from the guaranty
within a specified period, and this period has expired;
1.4 When the debt has become demandable by reason of the expiration of
the period for payment;
1.5 After the lapse of ten years, when the principal obligation has no fixed
period for its maturity, unless it be of such nature that it cannot be
extinguished except within a period longer than ten years;
1.6 If there are reasonable grounds to fear that the principal debtor intends
to abscond;
1.7 If the principal debtor is in imminent danger of becoming insolvent
(Article 2071).

Guarantor may either obtain release from the guaranty or demand a


security that shall protect him from any proceedings by the creditor and from
danger of debtor’s insolvency (Article 2071).

H. Effects of Guaranty as Between Co-guarantors

1. The obligation of several guarantors of the same debtor and for the same
debt is joint and each is bound only to pay his proportionate share. Therefore,
one who has paid the entire debt may seek reimbursement from each of his co-
guarantors the share which is proportionately owing him.

Requisites:
a) payment must have been made by virtue of a judicial demand or
b) because the principal debtor is insolvent

I. Extinguishment of Guaranty - Being accessory and subsidiary, guaranty


is terminated when the principal obligation is extinguished by:

a) payment or performance;
b) loss of the thing due
c) condonation or remission of the debt
d) confussion or merger of the rights of the creditor and debtor
e) compensation
f) novation

Guaranty may also be extinguished if the creditor has released the


guarantor although the principal obligation remains (Article 2078) or in case of
material alteration which imposes a new obligation or added burden on the party
promising or which takes away some obligation already imposed, changing the
legal effect of the original contract and not merely the form thereof. (NASCO vs.
Torrento, 20 SCRA 427 [1967]).
2. Release of one guarantor by the creditor without the consent of the other
guarantors benefits all to the extent of the share of the guarantor released
(Article 2078).

3. An extension of the term granted by the creditor to the debtor without


guarantor’s consent extinguishes the guaranty (Article 2029).

1. The guarantor who pays is entitled to be subrogated to all the rights


of the creditor (Article 2067). If there can be no subrogation because
of the fault of the creditor, as when the creditor releases or fails to
register a mortgage, the guarantors are thereby released. The same
rules applies even though the guarantors be solidarily (Article 2080).

PLEDGE
Kinds of pledge
1. Conventional or voluntary- that which is constituted by the mutual consent of the pledgor
and the pledgee.
2. Legal- that which is created by operation of law.
Conventional Pledge
Requisites
Object of the pledge
Extinguishment of pledge
1. Indirect cause- When the principal obligation secured by the pledge is extinguished, the
pledge, being merely an accessory contract, is likewise extinguished.

2. Direct causes- Pledge may be extinguished directly as follows:


A. Return by the pledgee of the thing pledged to the pledgor or owner
B. Renunciation or abandonment in writing by the pledgee of the pledge.
C. Sale of the thing pledged

D. Appropriation of the thing pledged


E. Legal pledge or pledge by operation law refers to the right of a person to retain a
thing until he receives payment

Real Mortgage
Requisites of real mortgage
Object of real mortgage

Foreclosure of real mortgage

Kinds of foreclosure

Redemption

A transaction through which the mortgagor, or one claiming in his right, by means of
payment or the performance of the condition, reacquires or buys back the value of the title
which may have passed under the mortgage, or divests the mortgaged premises of the lien
which the mortgage may have created.
Kinds of redemption
1) Equity of redemption- This refers to the right of the mortgagor to redeem the
mortgaged property after his default in the performance of his obligation but before
the property is sold.
a) In judicial foreclosure, the mortgagor is given not less than 90 days to pay the
mortgage debt before the property is sold.
b) In extra-judicial foreclosure, the mortgagor may avail himself of this right after his
default but before the sale of the property.
2) Right of redemption- this refers to the right of the mortgagor to repurchase the
property within a certain period after it was sold for the payment of the mortgage
debt.
a) In judicial foreclosure, the mortgagor may redeem the property after the sale and
before the confirmation by the court of the sale.
b) In extra-judicial foreclosure, the mortgagor has one year from the date of sale to
redeem the property.

CHATTEL MORTGAGE - is a contract by virtue of which personal property is recorded in


the Chattel Mortgage Register as a security for the performance of an obligation.

Requisites of chattel mortgage


1. That it be constituted be secure the fulfillment of a principal obligation.
2. That the mortgagor be the absolute owner of the thing mortgaged.
3. That the person constituting the mortgage must have the free disposal of his property,
and in the absence thereof, that he be
legally authorized for the purpose.
4. That the document in which the mortgagee appears be recorded in the Chattel Mortgage
Register.
Affidavit of good faith
This is sworn statement attesting to the fact that the mortgage is made for the purpose of
securing the obligation specified in the conditions thereof, and for no other purpose, and
that the obligation is a just obligation, and one not entered into for the purpose of fraud.
Kinds of foreclosure of chattel mortgage
a. Judicial foreclosure- this is foreclosure made by instituting a court action, following the
provisions of the Chattel Mortgage Law as far as practicable.
b. Extra-judicial foreclosure- this is foreclosure following the provisions of the Chattel
Mortgage Law. Instituting a court action is necessary only to secure possession of the
thing preparatory to extra-judicial foreclosure if the debtor refuses to deliver the thing.

Foreclosure sale
The proceeds of sale shall be distributed as follows:
1) The costs of sale.
2) Claim of the person foreclosing the mortgage.
3) Claims of persons holding subsequent mortgages in their order.
4) Balance, if any, shall be paid to the mortgagor.
Deficiency judgment
If the proceeds of sale are not sufficient to satisfy the claim of the creditor, the creditor
may institute a court action to recover the deficiency
ANTICHRESIS
Antichresis
A contract whereby the creditor acquires the right to receive the fruits of an immovable
of his debtor, with the obligation to apply them to the payment of the interests, and
thereafter to the principal of his credit.
Requisites of antichresis
1. That it be constituted to secure the fulfillment of a principal obligation.
2. That the debtor be the absolute owner of the immovable property
3. That the debtor must have the free disposal of such immovable property, and in the
absence thereof, that he be duly authorized for the purpose.
4. That the amount of the principal and the interest must be in writing; otherwise, the
antichresis is void.
Application of the fruits of the immovable
1) The taxes and charges upon the immovable.
2) The expenses for preservation and repair.
3) Interests on the principal obligation.
4) Principal obligation

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