Documente Academic
Documente Profesional
Documente Cultură
2014
Commercial
Law
Preparedby:Atty.RenatoRondez
MERCANTILE LAW
PRIVATE CORPORATIONS
How are corporations classified?
Corporations are generally classified as
stock or non-stock.
A stock corporation is one which
has capital stock divided into shares and
is authorized to distribute to the holders
of such shares dividends or allotments of
the surplus profits on the basis of the
shares held.
A non stock corporation is one
where no part of its income is
distributable
as
dividends
to
its
members, trustees or officers, and when
any profit is obtained as an incident if its
operations shall, whenever necessary or
proper be used for the furtherance of the
purpose/s for which the corporation was
organized.
What is the doctrine of separate
legal personality?
This
doctrine
holds
that
a
corporation has a personality
separate and distinct from its
individual
stockholders
or
members.
This affects liability for acts or
contracts, right to bring actions,
acquisition
of
property,
and
changes
in
the
identity
of
stockholders or members.
Insofar as moral damages, the
general rule is that it is not
entitled
to
it.
Recognized
exceptions are when the claim for
it is based on Article 2219 (7) of
the Civil Code in an action for libel
or defamation or it claims that its
reputation has been besmirched.
Corporate tort liability
Tort liability can be imposed on a
corporation because generally
speaking, the rules governing
liability of a principal or master for
a tort committed by an agent or
servant are the same whether the
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Who is a promoter?
A promoter is one who brings
about
the
formation
and
organization of a corporation.
He has joint personal liability for a
corporation
that
was
never
formed.
When the corporation has been
formed, upon ratification by the
board
of
his
contracts,
he
becomes
an
agent
of
the
corporation. Liability then is borne
by the corporation in its capacity
as principal.
What are the non-amendable parts
of the Articles of Incorporation?
The following items cannot be
amended:
(a)
Names
of
incorporators;
(b)
Names
of
original subscribers to the capital
stock of the corporation and their
subscribed and paid up capital; (c)
Names of the original directors; (d)
Treasurer elected by the original
subscribers; (e) Members who
contributed to the initial capital of
the non-stock corporation; and (e)
Witnesses
to
and
acknowledgement of the articles.
When does a corporation commence
to have existence?
A corporation commences to have
existence from the issuance by the
SEC
of
a
certificate
of
incorporation under its official
seal. The effect of which is to
constitute its stockholders or
members and their successors as
a Body Politic and Corporate under
the name and for the term stated
in the Articles.
It is said to have been given de
jure existence or can be said to be
incorporated.
The exception is a Corporation
Sole,
which
is
deemed
incorporated upon filing of its
Articles.
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abstention
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to
one
or
more
specified
restrictions on transfer; and (c)
The corporation shall not list in
any stock exchange or make any
public offering of any of its stock
of any class.
What
are
some
of
the
characteristics
of
a
closed
corporation?
Stockholders may act as directors
without need of election, however,
they shall assume all obligations
and liabilities of directors.
It may have a greater quorum
requirement.
Pre-emptive rights extend to all
stock issues, even treasury shares.
A stockholder may withdraw and
avail of his right of appraisal.
What is a deadlock?
It is when the directors or
stockholders
are
so
divided
respecting the management of the
business and affairs of the
corporation
that
the
votes
required for any corporate action
cannot be obtained and as a
result, business and affairs can no
longer be conducted to the
advantage of the stockholders.
When
an
unlicensed
foreign
corporation has the capacity to sue
If it is not transacting or doing
business in the Philippines, it can
sue
under:
(a)The
isolated
business transaction rule, (b) A
cause
of
action
that
is
independent of any business
transaction, (c) A cause of action
that arises out of a business
transaction that is not entered into
in the Philippines, and (d) A cause
of action to protect its name,
reputation or goodwill subject to
the rule on reciprocity under the
IPR.
What is a foreign corporation and
the basis for our authority over it?
It is a corporation formed,
organized or existing under any
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INSURANCE
What is the concept of insurance?
Insurance is a means by which one
seeks to be covered against the
consequences of an event that
may cause loss or damage.
The concept is that the premiums
that are paid are accumulated in a
pool from which payment of
claims are to be obtained. As a
basis, it is assumed that the
people contributing premiums are
in excess of those making claims
resulting in a larger pool of money
than the amounts being claimed
What are pure and speculative
risks?
The risks that may be insured
against are what are known as
pure
risks
as
opposed
to
speculative risks.
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under
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required to be transshipped at an
immediate port, in which case
each vessel upon which the cargo
is shipped or transshipped must
be
seaworthy
at
the
commencement of each particular
voyage
(c) where different
portions
of
the
voyage
contemplated in the policy differ in
respect to the things requisite to
make the ship seaworthy, in which
case it must be seaworthy at the
commencement of each portion.
When
is
a
deviation
proper?
Improper?
A deviation is proper: (a) When it
is caused by circumstances over
which neither the master nor the
owner of the ship has any control.
(b) When necessary to comply
with a warranty, or to avoid a
peril, whether or not the peril is
insured against. (c) When made in
good faith, and upon reasonable
grounds of belief in its necessity to
avoid a peril. (d) When made in
good faith, for the purpose of
saving human life or relieving
another vessel in distress
Any deviation that consists of a
departure from the course of the
voyage as defined by law or an
unreasonable delay in pursuing
the voyage or the commencement
of an entirely different voyage is
an improper deviation and the
insurer will not liable for any loss
happening to the thing insured
subsequent to it, regardless of
whether the risk was increased or
diminished.
What constitutes an actual total
loss?
An actual total loss occurs when
there is : (a) total destruction of
the
thing
insured;
(b)
an
irretrievable loss of the thing by
sinking or by being broken up; (c)
any damage to the thing which
renders it valueless to the owner
for the purpose that he held it; or
(d) any other event which
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though
it
becomes
entirely
worthless, but such insurer is
liable for his proportion of all
general average loss assessed
upon the thing insured.
What is suretyship?
Suretyship
is
an
agreement
whereby a party called the surety
guarantees the performance by
another party called the principal
or obligor
of an obligation or
undertaking in favor of a 3 rd party
called the obligee.
It is deemed to be an insurance
contract when made by a surety
who or which, as such, is doing an
insurance business as provided by
the Insurance Code.
The liability of the surety is
solidary with the obligor but
limited to the amount of the bond
and determined strictly by the
terms of the contract in relation to
the principal contract between
obligor and obligee.
What is life insurance?
It is insurance on human lives and
insurance appertaining thereto or
connected therewith. It is payable
on: (a) death of the person, unless
excepted or (b) surviving a
specified
period,
or
(c)
contingently on the continuance or
cessation of life.
Suicide
is
generally
not
compensable unless committed
after the policy has been in force
for a period of two years from
date of issue or last reinstatement
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What
differentiates
insurable
interest
in life
from
that
in
property?
Insurable interest in life can be
based on consanguinity, affinity,
contract or a pecuniary interest,
while insurable interest in property
is based on pecuniary interest.
Insurable interest in life must exist
only at the effectivity of the
contract except that taken by a
creditor on the life of the debtor
while insurable interest in property
must exist at the time of
effectivity of the contract and
when loss occurs, although it may
not exist in the meantime.
The value of insurable interest in
life is not limited unless taken by a
creditor on the life of the debtor
while insurable interest in property
is limited to the actual value of the
interest in the property.
Who has insurable interest in life?
Himself, his spouse and of his
children.
Any person on whom he depends
wholly or in part for education or
support, or in whom he has a
pecuniary interest.
Any
person
under
a
legal
obligation to him for the payment
of money, respecting property or
services, of which death or illness
might
delay
or
prevent
erformance.
Any person upon whose life, any
estate or interest vested in him
depends.
What does insurable interest in
property consist of?
An existing interest.
An inchoate interest founded on
an existing interest.
An expectancy, coupled with an
existing interest in that out of
which the expectancy arises.
A carrier or depository of any kind
has insurable interest in the thing
held by him as such to the extent
of his liability but not to exceed
the value thereof.
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When
is
there
a
waiver
of
information?
A waiver takes place either, by the
terms of the insurance or by the
neglect to make inquiries as to
such facts where they are
distinctly implied in other facts of
which
information
is
communicated.
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NEGOTIABLE INSTRUMENTS
When is there an unconditional
order or promise to pay?
The promise or order is still
unconditional
though
coupled
with:(a)An
indication
of
a
particular fund out of which
reimbursement is to be made or a
particular account to be debited
with
the
amount;
or(b)
A
statement of the transaction
which gives rise to the instrument.
The test of negotiability when
there is another stipulation is
whether or not the promise would
give rise to a cause of action for
breach of contract if the additional
act is not done. If it does, the
instrument
is
rendered
nonnegotiable.
What is the fictitious payee rule?
When it is payable to the order of
a fictitious or non-existing person,
the instruments being payable to
bearer depends on the intention of
the person making it so payable.
An actual, existing, and living
payee may also be fictitious if
the drawer did not intend for the
payee in fact to receive the
proceeds of the check. If this is
absent, the effect is that the
instrument cannot be considered
as payable to bearer.
How are conflicts between words
and numbers resolved?
In the case of People v. Romero,
306 SCRA 90, the drawer of a
check with a balance of PHP
1,144,760.00
could
not
be
convicted for estafa because of
the dishonor of his check for lack
of
funds
where
the
check
indicated the amount of PHP
1,000,200.00 in words and the
amount of PHP 1,200,000.00 in
figures as the NIL provides that in
resolving
this
ambiguity
the
amount in words should prevail.
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How
does
the
prima
facie
presumption that one is a holder in
due course apply?
Every holder of a negotiable
instrument is deemed prima facie
a holder in due course.
The presumption that every holder
is deemed prima facie to be a
holder in due course, arises only in
favor of a person who is a holder
in the sense defined in Section
191 of the NIL, that is, a payee or
indorsee who is in possession of
the instrument, or the bearer
thereof.
There is no presumption that a
person through whose hands an
instrument has passed was a
holder in due course.
What are the rights of a holder in
due course?
A holder in due course holds the
instrument free from any defect of
title of prior parties, and free from
defenses available to prior parties
among themselves, and may
enforce payment of the instrument
for the full amount thereof against
all parties liable thereon.
Specifically: (a) He may sue in his
own name (b) He may receive
payment, and payment to him in
due
course
discharges
the
instrument (c) He holds the
instrument free from any defect of
title of prior parties and free from
defenses available to prior parties
among themselves (d) He may
enforce payment of the instrument
for the full amount thereof against
all parties liable thereon.
When is an instrument is subject to
original defenses?
In the hands of any holder other
than a holder in due course, a
negotiable instrument is subject to
the same defenses as if it were
non-negotiable.
However,
a
holder who derives his title
through a holder in due course,
and who is not himself a party to
any fraud or illegality affecting the
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is dishonored by non-acceptance
or non-payment, he will pay to
the holder of the bill or to any
subsequent indorser who was
compelled to pay it, provided the
necessary
proceedings
on
dishonor were duly taken.
To fix the liability of the drawer,
the following steps must be taken:
(a)Due presentment of the bill of
exchange to the drawee, the
person to whom the bill is
addressed.
It
may
be
presentment for acceptance, or
presentment
for
payment;
whichever is necessary under the
premises, (b)If dishonored, the
necessary
proceedings
on
dishonor must be taken. Both
steps must concur; otherwise, the
drawer will be discharged from
liability.
The drawer may negative or limit
his liability to the holder by
inserting a provision to that effect
in the instrument; e.g., In case of
dishonor, I am not liable for the
amount of this instrument
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dishonored
pursuant
to
the
warranties they made when they
affixed their signatures on the
instrument.
The parties primarily liable on the
instrument need not be given a
notice of dishonor because they
were the ones who dishonored the
instrument.
The drawee need not be given a
notice of dishonor because he is
not party to the instrument until
he accepts.
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TRANSPORTATION
What
are
the
Constitutional
provisions affecting transportation?
Section 11, Article XII- National
Economy and Patrimony provides
that the grant of any franchise or
any form of authorization to
operate a public utility is limited to
What
is
the
basis
of
state
regulation?
Since the business and operation
of a public utility is imbued with
public interest, it must submit to
government
regulation
and
surrender
certain
business
prerogatives,
including
determining the amount of rates
that they can charge as the State
must protect the public whenever
too much profits become the
priority of public utilities.
What are the rate determination
factors?
The three major factors are: (a)
rate of return , (b) rate base, and
(c) return itself or the computed
revenue to be earned using the (a)
and (b).
Jurisprudence has consistently
adopted a 12% rate of return.
The rate base is an evaluation of
the property devoted to the public
service or value of invested
property which is entitled to a
return.
What is the degree of diligence
required of common carriers?
Regardless of whether the object
are goods or passengers, a
common carrier must observe
extra ordinary diligence.
The is required because of the
nature of the business and by
reason of public policy.
If loss, destruction or deterioration
of the goods occurs or death or
physical injuries is suffered by a
passenger, there is a presumption
of negligence that arises.
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LETTERS OF CREDIT
What are letters of credit?
A letter of credit is basically an
open letter of request whereby
one person requests another to
advance money or give credit to a
third person for a certain amount
and promises to repay the person
advancing the money.
They are intended generally to
facilitate the purchase and sale of
goods by providing assurance to
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TRUST RECEIPTS
What is the fraud exception?
The fraud exception maintains
that
despite
the
banks
unconditional obligation to pay the
seller upon presentation of the
required documents, the issuing
bank is not bound to pay when
there has been fraud by the seller.
The test is whether, standing in
the shoes of the paying bank at
the time of payment, the fraud
was clear and obvious. If [the]
fraud was clear and obvious, the
bank pays the beneficiary at its
own peril and it is not entitled to
reimbursement. But if [the] fraud
is not clear and obvious, then it is
not for a bank to question why
the parties involved had chosen to
conduct their business in any
particular way.
What is the effect of a stay order on
beneficiary?
In the case of MWSS v. Hon.
Daway, 432 SCRA 599, it was held
that the beneficiary of a stand-by
letter of credit can draw on the
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What
is
meant
by
security
interest?
A Security Interest means a
property
interest
in
goods,
documents or instruments to
secure performance of some
obligations of the entrustee or of
some third persons to the
entruster
and
includes
title,
whether or not expressed to be
absolute, whenever such title is in
substance taken or retained for
security only.
What are some of the principal
obligations of the entrustee ?
To hold the goods in trust for the
entruster and to dispose of them
strictly in accordance with the
terms of the trust receipt;
To receive the proceeds of the sale
of the goods in trust for the
entruster and to turn over the
same to the entruster to the
extent of the amount owing to the
entruster;
To insure the goods for their total
value against loss from fire, theft,
pilferage or other casualties;
To return the goods to the
entruster in case they could not be
sold or upon demand of the
entruster.
AMLA
What is money laundering?
Money Laundering is the process
by which a person conceals the
existence of unlawfully obtained
money and makes it appear to
have
originated
from
lawful
sources.
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There are
offenses.
now
34
predicate
Can
there
be
simultaneous
prosecutions for laundering and the
predicate offense?
It is now provided that any person
may
be
charged
with
and
convicted of both the offense of
money
laundering
and
the
unlawful activity and that the
prosecution for money laundering
shall proceed independently of the
proceeding
relating
to
the
unlawful activity.
How
is
money
laundering
committed?
The offense of money laundering
may be committed by any person
knowing
that
any
monetary
instrument or property represents,
involves, or relates to, the
proceeds of any unlawful activity:
(a)
Transacts said monetary
instrument
or
property.,
(b)
Converts, transfers, disposes of,
moves, acquires, possesses or
uses said monetary instrument or
property, (c) Conceals or disguises
the true nature, source, location,
disposition,
movement
or
ownership of or rights with respect
to said monetary instrument or
property, (d) Attempting to or
conspiring to commit money
laundering offenses. (e)Aiding,
abetting, assisting in or counsels
the
commission
of
money
laundering, and (f) Performs or
fails to perform any act as a result
of which he facilitates the offense
of money laundering.
It is also committed by any person
knowing
that
any
monetary
instrument or property is required
under this Act to be disclosed and
filed
with
the
Anti-Money
Laundering Council (AMLC) fails to
do so.
Who is a covered person?
A Covered Person, natural or juridical,
refers to:
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INTELLECTUAL PROPERTY
Is IP protection interchangeable?
In the case of Pearl & Dean Phils.
Inc. v. Shoemart, Inc., 409 SCRA
231 it was held that copyrights,
trademarks
and
patents
are
completely distinct and separate
from one another and the
protection afforded by one cannot
be used interchangeably to cover
items or works that exclusively
pertain to the others.
What is entitled to IP protection, the
idea or the expression?
Ideas are not entitled to copyright
protection, what is entitled to
protection is the expression of the
idea.
This means that the copyright
does not preclude others: (a) from
using information revealed in the
authors work, like following the
instructions in a recipe book, or (b)
creating works based on the same
underlying idea, like a comic book
with a talking mouse as the
central character.
What is the No Formality Rule?
While the Intellectual Property
Code does not explicitly provide
for the rule, we follow the
mandate of Article 5 (2) of the
Berne Convention which provides
that: The enjoyment and the
exercise of these rights shall not
be subject to any formality.
A formality is any condition on
which the existence or exercise of
the
right
depends.
While
registration, fees and deposit of
copies are formalities, they will be
considered as such only when the
existence of the copyright or
exercise
of
attendant
rights
depends on compliance.
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WAREHOUSE RECEIPTS
When are the goods deliverable?
In the absence of any lawful
excuse, he is bound to deliver the
goods upon a demand by: (a)
holder of a receipt for the goods,
or (b) by the depositor, provided
that the demand be accompanied
by an (a) an offer to satisfy the
warehousemans lien (b) an offer
to surrender the receipt if it is
negotiable, and (c) a readiness
and
willingness
to
sign
acknowledgment of delivery of the
goods
if
requested
by
the
warehouseman
To whom is delivery made?
A warehouseman is obliged to
deliver goods to: (a) person
lawfully entitled to it such as:
person determined by the court to
be entitled to it in an interpleader
case, or a person who purchases
the goods at an auction to satisfy
a warehousemans lien or because
the goods are hazardous or of a
perishable nature (b) the person
who is himself entitled to delivery
by the terms of the receipt. If
receipt is non-negotiable, delivery
Page 45 of 50
BAR OPERATIONS 2014
Green Notes
2014
Commercial
Law
Preparedby:Atty.RenatoRondez
BANKING LAWS
What is an open market operation?
In the case of Bank of Commerce
v. Planters Development Bank,
681 SCRA 521, open market
operations has been defined as
the act of the Bangko Sentral ng
Pilipinas in publicly buying or
selling government securities from
(or to) banks and financial
institutions.
The purpose is to regulate the
supply of money in the economy
to influence the timing, cost and
availability of money and credit.
When does conservatorship occur?
Conservatorship
takes
place
whenever a bank or quasi-bank is
in a state of continuing inability or
unwillingness
to
maintain
a
condition of liquidity deemed
adequate to protect the interest of
depositors and creditors.
It is an attempt to save the bank
from bankruptcy and ultimate
liquidation. It is helping the bank
by
introducing
effective
management reforms and/or the
infusion of capital.
A conservator may take over a
bank or quasi-bank without the
need of first declaring the bank
insolvent nor is the designation of
a conservator a precondition to
the designation of a receiver.
The period is 1 year.
When does receivership occur?
Page 46 of 50
BAR OPERATIONS 2014
Green Notes
2014
Commercial
Law
Preparedby:Atty.RenatoRondez
Page 47 of 50
BAR OPERATIONS 2014
Green Notes
2014
Commercial
Law
Preparedby:Atty.RenatoRondez
What
are
the
FCDU
equity
exceptions?
In the case of Salvacion v. Central
Bank, GR No. 94723, August 18,
1997
the
Supreme
Court
recognized that the demands of
justice correct a wrong committed
to a girl of tender years were
above the need for the foreign
offender's dollars, allowing the
looking into, and in fact garnishing
the foreign currency deposit of the
transient foreigner, to enforce
payment of the indemnity due.
In the case of China Banking Corp.
v. Court of Appeals, GR No.
140487, December 18, 2006 the
Supreme Court allowed an inquiry
into a foreign currency deposit to
settle the real ownership of the
funds. Though pro hac vice or this
one particular reason, the ruling
was clear that the "allowance of
the inquiry would be in accord
with the rudiments of fair play and
the upholding of fairness in our
judicial system."
PHILIPPINE
DEPOSIT
CORPORATION
INSURANCE
Page 48 of 50
BAR OPERATIONS 2014
Green Notes
2014
Commercial
Law
Preparedby:Atty.RenatoRondez
Page 49 of 50
BAR OPERATIONS 2014
Green Notes
2014
Commercial
Law
Preparedby:Atty.RenatoRondez
Page 50 of 50
BAR OPERATIONS 2014