ANTICHRESIS to the contrary, is such obligation

obliged to pay the

(Arts. 2132-2139)
taxes and charges
Art. 2132. By the contract of antichresis the upon the estate
creditor acquires the right to receive the
fruits of an immovable of his debtor, with (d) creditor be given
the obligation to apply them to the payment possession of the (d) there is no such
of the interest, if owing, and thereafter to property shall apply to obligation on the part
the fruits thereof to of the mortgagee
the principal of his credit.
the payment of
A. DEFINITION: interest, if owing, and
The Article defines antichresis. thereafter to the
principal of the credit.
B. CHARACTERISTICS OF THE CONTRACT. Both are similar in that the subject matter is a
Antichresis is: real property.
(1) An accessory contract because it secures
the performance of a principal obligation. E. DELIVERY OF PROPERTY.
Manresa, however, believes that it is an Antichresis requires the delivery by the
independent contract; and debtor of the property given as security to
the creditor. But such delivery is required
(2) A formal contract because it must be in a only in order that the creditor may receive
specified form to be valid, i.e., in the fruits and not that the contract shall be
writing. binding. The contract does not cover the
immovable but only its fruits.
C. ANTICHRESIS AND PLEDGE COMPARED.
F. RIGHTS OF THE CREDITOR TO THE
ANTICHRESIS PLEDGE FRUITS
(a) real property (a) personal property Antichresis normally covers all the fruits
of the encumbered property, but the law
(b) perfected by mere (b) perfected by the gives the parties the freedom to stipulate
consent delivery of the thing otherwise.
pledged
(c) consensual contract (c) real contract The reduction of the amount of fruits
available to the creditor does not vary the
Both are similar in that the debtor loses control nature of the contract.
of the subject matter of the contract.
G. OBLIGATION TO PAY INTEREST NOT
D. ANTICHRESIS AND REAL MORTGAGE ESSENTIAL.
COMPARED. The obligation to pay interest is not of the
essence of the contract of antichresis, any
ANTICHRESIS REAL MORTGAGE
more than it is indispensable in a contract of
property is delivered to debtor usually retains
loan. The words if owing (interest) reveal
the creditor possession of the
that it is not essential that the loan should
property
earn interest in order that it can be
(b) creditor acquires
guaranteed with a contract of antichresis,
only the right to creditor does not have
there being nothing in the Code to show that
receive the fruits of the any right to receive the
antichresis is only applicable to securing the
property; hence, it fruits, but mortgage
payment of interest-bearing loans. On the
does not produce a creates a real right
contrary, antichresis is susceptible of
real right over the property
guaranteeing all kinds of obligations, pure or
which is enforceable
conditional.
against the whole
world;
creditor, unless there
is a stipulation (c) the creditor has no
ART. 2133. 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.
MEASURE OF APPLICATION OF FRUITS TO
INTEREST AND PRINCIPAL.
The contract does not cover the
immovable but only its fruits. The fruits of
the immovable which is the object of the
antichresis must be appraised at their
actual market value at the time of the
application. The foregoing rule will forestall
the use of antichresis for purposes of
usury.
ART. 2134. The amount of the principal and
of the interest shall be specified in writing;
otherwise, the contract of antichresis shall
be void. (n)
FORM OF THE CONTRACT.
Article 2134 is an instance when the law
requires that a contract be in some form in
order that it may be valid and not only to affect
third persons. Even if the antichresis is void,
the principal obligation, however, is still valid.
This article, like Articles 2133 and 2138, is
intended to forestall the use of antichresis for
purposes of usury.
ART. 2135. The creditor, unless there is a
stipulation to the contrary, is obliged to pay
the taxes and charges upon the estate.
He is also bound to bear the expenses
necessary for its preservation and repair.
The sums spent for the purposes stated in
this article shall be deducted from the fruits.
(1882.)
OBLIGATIONS OF THE ANTICHRETIC
CREDITOR.
The creditor acquires, by virtue of the
contract of antichresis, the right to enjoy the
fruits of the property delivered to him.
This right carries two obligations (pars. 1 and
2.) which are the necessary consequences of the
contract because they arise from its very
nature.
(1) Payment of taxes and charges upon the
estate. The creditor is obliged, unless there is
a stipulation to the contrary, to pay the taxes
and charges upon the estate. If he does not pay
the taxes, he is by law required to pay indemnity
for damages to the debtor.
Where the debtor has paid for the taxes on the
property which the creditor should have paid,
the amount is to be applied to the payment of
the debt, and the debtor is entitled to the return
of the property free from all encumbrances if he,
in effect, by advancing the taxes, had already
discharged the debt.
(2) Application of the fruits of the estate.
Another obligation of the creditor is to apply the
fruits, after receiving them, to the interest, if
owing, and thereafter to the principal; hence,
the duty of the creditor to render an account of
said fruits to the debtor, and the corresponding
right of the latter to apply the said fruits to the
debt.
The sums spent by the creditor in fulfillment of
the obligations under the article shall be
charged against the fruits of the property.
ART. 2136. The debtor cannot reacquire the
enjoyment of the immovable without first
having totally paid what he owes the
creditor.
But the latter, in order to exempt himself
from the obligations imposed upon him by
the preceding article, may always compel the
debtor to enter again upon the enjoyment of
the property, except when there is a
stipulation to the contrary. (1883)
RIGHT OF ANTICHRETIC DEBTOR TO
REACQUIRE ENJOYMENT OF PROPERTY
The property delivered stands as a
security for the payment of the obligation of the
debtor in antichresis. Hence, the debtor cannot
demand its return until the debt is totally paid.
However, if the creditor does not want to pay the
taxes and incur the expenses necessary for the
preservation and repair of the property he may
compel the debtor to reacquire the enjoyment of
the same except when there is a contrary
stipulation.
ART. 2137. The creditor does not acquire the
ownership of the real estate for nonpayment
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 of mortgages shall apply.
(1884a)
REMEDY OF CREDITOR IN CASE OF
NONPAYMENT OF DEBT
If the debt is not paid, it is clear enough
that the creditor does not acquire ownership of
the real estate since what was transferred is not
the ownership but merely the right to receive its
fruits.
A stipulation authorizing the antichretic creditor
to appropriate the property upon the
nonpayment of the debt within the period
agreed upon is void.
The remedy of the creditor is (1) to bring an
action for specific performance; or (2) to petition
for the sale of the real property as in a
foreclosure of mortgages under Rule 68 of the
Rules of Court. The parties, however, may agree
on an extrajudicial foreclosure in the same
manner as they are allowed in contracts of
mortgage and pledge.
ACQUISITION BY CREDITOR OF PROPERTY
BY PRESCRIPTION
The creditor in antichresis and his
successors-in-interest cannot ordinarily acquire
by prescription the land given to him, any
agreement to the contrary being void.
Possession, for the purpose of acquisitive
prescription, must be in the concept of an
owner.
The possession of an antichretic creditor is not
in the concept of an owner.
He is a mere holder placed in possession of the
land by the debtor, the owner.
He cannot acquire the ownership of the real
estate subject of the antichresis unless he
repudiates his status as an antichretic creditor
ART. 2138. The contracting parties may
stipulate that the interest upon the debt be
compensated with the fruits
of the property which is the object of the
antichresis, provided that if the value of the
fruits should exceed the amount of interest
allowed by the laws against usury, the excess
shall be applied to the principal. (1885a)
INTEREST IN ANTICHRESIS SUBJECT TO
THE USURY LAW.
The antichretic creditor is under
obligation to apply the fruits of the property in
satisfaction, first, of whatever interest on the
debt is due, and secondly, to the payment of the
principal.
The fruits must be appraised on the
basis of their actual market value at the time of
the application.
If their value should exceed the amount
of interest allowed by the Usury Law, the excess
shall be applied to the principal.
Note: The rate of interest on loan or forbearance
of money goods, or credit is no longer subject to
any ceiling prescribed under the Usury Law.
ART. 2139. The last paragraph of Article
2085, and Articles 2089 to 2091 are
applicable to this contract. (1886a)