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PRINCIPAL CONTRACTS ACCESSORY CONTRACTS

LOAN DEPOSIT GUARANTY PLEDGE MORTGAGE ANTICHRESIS

PARTIES Creditor - Debtor Depositor - Depositary Creditor - Debtor + Pledgor - Pledgee Mortgagor - Mortgagee Creditor - Antichretic
Bailor - Bailee Guarantor debtor
*Guarantor must be a
person distinct from debtor
since a person cannot be
the personal guarantor of
himself. (See Arts2056-2057
for qualifications.)
OBJECT Commodatum: Non-consumable; may Always movable Only movable or Chattel mortgage: Personal Only covers the fruits
non-consumable (real or be movable or properties. incorporeal properties Property, alienable rights of real/immovable
*Unless stipulated Real mortgage: real
personal property) immovable property.*in properties.
otherwise, pledge extends property, immovables.
Mutuum: Consumable case of extrajudicial *Not applicable to future
deposit, only to the fruits, interests or
(personal property only) property.
movable/corporeal things earnings of the thing.
PURPOSE Commodatum: Use or For safekeeping Security over principal Security over principal Security over principal Recovery of the fruits.
temporary possession * Is the depositary allowed obligation obligation obligation *Apply the fruits of
Mutuum: Consumption to use the object? *Generally gratuitous property first to the
*Loans are generally Generally, no, but there are unless there is contrary interest, if there is any,
exceptions. stipulation. (Art. 2048); then to the principal
gratuitous. Hence, if there
*Generally gratuitous; obligation.
is consideration for the use, ** For the performance of
Exceptions:
then it is not a loan but a a voidable/unenforceable **May guarantee all
A. Contrary stipulation;
lease. B. Depositary is engaged in contract; kinds of obligations, pure
storage business; ***Guarantor cannot bind or conditional.
C. Property saved from himself for more than the
destruction w/o knowledge of principal debtor.
owner.
FORM Not necessarily written; May be written or oral. Must be expressed and The description of the Real estate mortgage: Art. 1956. No Interest
*Art. 1356. but enforceability may (Art. 1969) reduced in writing; thing pledged and the Must appear in a public shall be due unless
Contracts are be a problem if not *Depositary may use the cannot extend to more date must appear in a instrument (Art. 2125); expressly stipulated in
binding in object if expressly
written. authorized by depositor.
than what is stipulated public instrument to covered by Sec. 19, writing.
whatever form therein (Art. 2055) bind third persons but Rule 132 of the RoC. Art. 2134. Amount of
(written/oral) **Effect of authorization:
a. If non-consumable: *Cannot be presumed. not for the validity of *Registration in the registry principal and interest
unless a specific of property is necessary to
contract becomes a **A power of attorney to the contract. shall be in writing
law requires it to bind 3rd persons but not for
commodatum unless loan money does not otherwise contract of
be in some form its validity.
safekeeping is still primary authorize the agent to
in order for it to *Warehouse Receipts ** Where a mortgage is not antichresis shall be
purpose thereof. make the principal liable
be valid or Law valid or false, the principal void.
b. If money/consumable: as a surety for the obligation which it
enforceable. (See contact becomes a mutuum payment of the debt of a guarantees is not rendered
Art. 1403) unless safekeeping is still *Trust Receipts Law
3rd person. null and void. What is lost is
primary purpose, then it *** Falls under Statute of only the right to foreclose the
will be an irregular deposit. Frauds (Art. 1403); mortgage as a special
***Depositary will be liable special promise to pay. remedy for settling the
for loss in case of fortuitous indebtedness; mortgage deed
event if so stipulated remains proof of obligation.
PRINCIPAL CONTRACTS ACCESSORY CONTRACTS
LOAN DEPOSIT GUARANTY PLEDGE MORTGAGE ANTICHRESIS

DELIVERY Required Required Not required Required No Delivery Required


*Guarantor may set up *contract of pledge is *Express agreement that
the defense of excussion perfected upon delivery of debtor will give
(guarantor cannot be the thing pledged. possession to creditor and
compelled to be liable that latter will apply the
unless creditor has fruits to the interest, if
exhausted all properties of any, then to the principal
principal debtor and has of his credit. (Art. 2132)
resorted to all available
legal remedies.)
OWNERSHIP Commodatum: there is There is delivery but no No transfer of ownership. There is delivery but no Ownership and No transfer of
only transfer of transfer of ownership. *Should there be several transfer of ownership. possession is retained ownership.
possession; * The thing deposited guarantors of only one *Requires that the by mortgagor. *Creditor acquires only
must be returned with all debtor and for the same pledgor/mortgagor be the *Requires that the the right to receive fruits,
bailor/creditor retains
its products, accessories, debt, obligation to answer absolute owner of the pledgor/mortgagor be the hence, it does not produce
ownership thereof
and accessions. (Art. for the same is divided thing and must have free absolute owner of the a real right.
Mutuum: There is among all; liability is joint.
1983) disposal of the object or thing and must have free **Creditor, unless there is
transfer of both **Liability may be
**If onerous, depositary that they be legally disposal of the object or contrary stipulation, is
possession and may retain the object until solidary if so stipulated or authorized for the obliged to pay the taxes
that they be legally
ownership to full payment of if any of the purpose.[Art. 2085, (2) & authorized for the and charges upon the
debtor/bailee consideration. (Art. 1994). circumstances under Art (3)] purpose. [Art. 2085, (2) & estate.
2056 are present. **Pledgee may not (3)]
*** Guarantor can claim immediately appropriate
reimbursement from object upon failure of
principal debtor. pledgee to comply with
the principal obligation.
***Thing delivered must
be returned with all its
fruits and accessions.
TIME OF Commodatum: Time of Return: Foreclosure not No foreclosure, just notice Yes, there must be a Remedy of Creditor in Case
GR: Upon demand or at will, of Default
RETURN In case of urgent need, whether or not a period has been applicable. of public auction. foreclosure sale.
even before the expiration stipulated. *Requirements for sale: *In case of real mortgage: 1 a. Action for specific
(Principal *Creditor may proceed performance;
of the term, creditor/bailor Exceptions: a. Debt is due and unpaid; year redemption period
Contracts)/ a) thing is judicially attached against guarantor if b. Sale must be at a public applies b. Petition for the sale of the
may demand for return of b) depositary was notified of the real property as in a
FORECLOSURE auction; *An order of foreclosure
the thing lent. opposition of a third person to
foreclosure of mortgages
(Accessory the return or the removal of the c. There must be notice to cannot be refused on the
Mutuum: thing deposited (Article 1986) ground that the mortgage under Rule 68 of the Rules of
contracts) pledgor and owner, stating
Only after the expiration of Right to return: has not been registered Court. The parties, however,
a. Gratuitous: For justifiable the amount due;
the term fixed. provided no innocent 3rd may agree on an extrajudicial
reasons, depositary may return d. Sale must be with the foreclosure in the same
the return the thing parties are involved.
intervention of a notary manner as they are allowed
notwithstanding that a period has ***As opposed to a pledge, a
been fixed.
public. in contracts of mortgage and
mortgagee is entitled to
b. Onerous: Depositary has no **if price of sale more than pledge (see Article 1307;
recover deficiency if proceeds
right to return the thing before amount due, creditor not from the sale is not sufficient Tavera vs. El Hogar Filipino,
the expiration of the fixed period entitled to the excess unless to cover the debt; action Inc. 68 Phil. 712 [1939]).
even if he shall suffer
inconvenience. the contrary is provided. prescribes in 10 years.
PRINCIPAL CONTRACTS ACCESSORY CONTRACTS
LOAN DEPOSIT GUARANTY PLEDGE MORTGAGE ANTICHRESIS

EXTINGUISH- a. For the same causes as all a. For the same causes
other obligations (Art. 1231);
MENT b. creditor has released the as all other obligations
guarantor although the (Art. 1231);
principal obligation remains b. Return of the thing
(Article 2078);
c. Material alteration w/c pledged by the pledgee
imposes a new obligation or to the pledgor;
added burden on the party c. Statement in writing
promising, or which takes
away some obligation already by the pledgee that he
imposed, changing the legal renounces or abandons
effect of the original contract
and not merely the form
the pledge (Art. 2111);
thereof; d. Sale of the thing
d. Release of one guarantor pledged at a public
by the creditor without the
consent of the other
auction (Art. 2115).
guarantors benefits all to the
extent of the share of the
guarantor released (Article
2078);
e. An extension of the term
granted by the creditor to the
debtor without guarantors
consent extinguishes the
guaranty (Article 2029).
f. 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
apply even though the
guarantors be solidarily
(Article 2080)