Sunteți pe pagina 1din 1

P Plle ed dg ge e,, M Mo or rt tg ga ag ge ea an nd dA An nt tiic ch hr re es siis s


1. Concept of Antichresis. A contract whereby the creditor acquires the right to recover the fruits of an immovable of his debtor, with the obligation to apply them to the payment of the interest, and thereafter to the principal of his credit. (Art. 2132) EXAMPLE: D borrowed P120,000 from C. The debt, which is payable in ten equal monthly installments, bears interest at 12% per annum. As security, D and C agreed in writing that the monthly harvest of tilapia from Ds fishpond shall be applied to the monthly payment of the principal and interest. 2. Characteristics of antichresis. a. Accessory. It is a contract that is dependent upon another for its evidence. b. Formal. It must be in writing (the amount of principal and interest) otherwise, the contract is void. c. Nominate. It has a specific name under the law. d. Real right. It creates a lien on immovable property. e. Real property. It is a real property by itself. f. Indivisible. It subsists as long as the principal obligation remains unpaid. Please see rules on indivisibility of pledge and mortgage which are applicable to a contract of antichresis. 3. Requisites of antichresis. a. That it be constituted to secure the fulfillment of a principal obligation. (Arts. 2085, 2139) A contract of antichresis may secure all kinds of obligations, be they pure or subject to a resolutory or suspensive condition. (Arts. 2091, 2139) b. That the debtor be the absolute owner of the immovable property. Nonetheless, a third person, not a party to the principal obligation, may be the owner of the immovable given as security. (Arts. 2085, 2139) c. 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. (Ibid.) d. That the amount of the principal and the interest must be in writing; otherwise the antichresis is void. (Art. 2134) 4. Measure of application of fruits. The actual market value of the fruits at the time of the application thereof to the interest and principal shall be the measure of such application, (Art. 2133) and not at the time that such fruits came into existence. 5. Obligations of the creditor a. To pay the taxes and charges upon the immovable, unless there is a stipulation to the contrary. b. To bear the expenses necessary for its preservation and repair. (Art. 2135) 6. When debtor can reacquire enjoyment of property. a. Upon full payment of his obligation to the creditor. b. When he is compelled by the creditor to enter into the enjoyment of the property, unless there is stipulation to the contrary. This right is available to the creditor if he desires to exempt himself from the obligation to pay the taxes and charges upon the property and the expenses for its preservation and repair. 7. Effect of non-payment of the debt within the period agreed upon. The creditor does not acquire the ownership of the real estate for non-payment of the debt within the period agreed upon. Every stipulation to the contrary shall be void. But the creditor may petition the court for the payment of the debt or the sale of the real property. In this case, the Rules of Court on the foreclosure or mortgages shall apply. (Art. 2137) 8. Application of the fruits of the immovable (Arts. 2135, 2138) a. The taxes and charges upon the immovable. b. The expenses for preservation and repair. c. Interest on the principal obligation. d. Principal obligation.
Chapter 4 (Antichresis) Page 1 of 1