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Bar Qs 2019 2018

XII
B.16.
Saachi opened a savings bank account with
C Corp. entered into a contract with D, Inc. for the Shanghainese Bank. He made an initial deposit of
construction of the latter's production warehouse. In PhP100,000. Part of the bank opening forms that he
consideration thereof, D, Inc. was obliged to pay C was required to sign when he opened the account was
Corp. the amount of ₱50,000,000.00 within a period of a Holdout Agreement which provided that, should he
one (1) month from the time of the project's incur any liability or obligation to the bank, the bank
completion. To secure the payment of the said sum, D, shall have the right to immediately and automatically
Inc. entered into a surety agreement with S Company. take over his savings account deposit. After he opened
After more than a month from the completion date of his deposit account, the Shanghainese Bank discovered
the project, C Corp. remained unpaid. Claiming that it a scam wherein the funds in the account of another
was suffering from serious financial reverses, D, Inc. depositor in the bank was withdrawn by an impostor.
asked C Corp. for an extension of three (3) months to Shanghainese Bank suspected Saachi to be. the
pay the ₱50,000,000.00 it still owed, to which C Corp. impostor, and filed a criminal case of estafa against him.
agreed. However, after more than three (3) months, D, While the case was still pending with the Prosecutor's
Inc. still refused to pay. Hence, C Corp. proceeded to office, the bank took over Saachi's savings deposit on
collect the above sum from the surety, S Company. the basis of the Holdout Agreement.

For its part, S Company refused the claim and raised A) What kind of contract is created when a
the defense that the extension of time granted by C depositor opens a deposit account with a bank?
Corp. to D, Inc. without its consent released it from The contract created when a depositor opens a deposit
liability. account with a bank is a simple loan or mutuum. Article
a) Will the defense of S Company against the 1980 of the NCC provides fixed, savings, and current
claim bold water? Explain. (3%) deposits of money in banks and similar institutions shall
be governed by the provisions of concerning simple loan
Yes, the defense of S Company will hold water. or mutuum. When a savings account is opened, a
creditor-debtor relationship ensues with the depositor
The Civil Code provides that an extension of time as the creditor and the bank as the debtor.
(pursuant to a new agreement, and not merely failure
to collect on the due date) given to a debtor by the (b) In this case, did the bank have the right to
creditor, without the consent of the guarantor, take over Saachi's bank deposit? (2.5%)
extinguishes a guaranty. However, the Supreme Court
has ruled that this provision also applies to the surety No, the bank had no right to take over Saachi’s bank
in a contract of suretyship. (Autocorp v. Intra Strata deposit. The Hold over agreement states that the right
Assurance) may be exercised by the bank only after the depositor
incurs any liability to the bank. In this case, the
Thus, because the extension of 3 months was given by depositor is only suspected of estafa by another bank in
C Corp to D Inc without the consent of S Company, S the Prosecutor’s office. Absent a court order, the bank
Company was released from its liability as a surety. cannot withhold the deposit of the depositor.

(b) Assuming that S Company instead refused XIX.


the claim on the ground that C Corp. has yet to
exhaust D, Inc.'s property to satisfy the claim Sebastian, who has a pending assessment from the
before proceeding against it, will this defense Bureau of Internal Revenue (BIR), was required to post
prosper? Explain. (2%) a bond. He entered into an agreement with Solid Surety
Company (SSC) for SSC to issue a bond in favor of the
No, S Company's defense will not prosper. BIR to secure payment of his taxes, if found to be due.

The Civil Code provides that the benefit of excussion is In consideration of the issuance of the bond, he
available only to a guarantor in a contract of guaranty, executed an Indemnity Agreement with SSC whereby
and is not applicable when the guarantor binds himself he agreed to indemnify the latter in the event that he
solidarily with the debtor. was found liable to pay the tax. The BIR eventually
decided against Sebastian, and judicially commenced
In this case, S Company, as a surety, bound itself to be action against both Sebastian and SSC to recover
solidarily liable with the debtor for the amount of the Sebastian's unpaid taxes.
debt.
Thus, S Company cannot claim the benefit of excussion, Simultaneously, BIR also initiated action to foreclose on
or the prior exhaustion of the debtor's properties. the bond. Even before paying the BIR, SSC sought
indemnity from Sebastian on the basis of the Indemnity
Agreement. Sebastian refused to pay since SSC had not In the Case at bar, Josef became the owner of the
paid the BIR anything yet, and alleged that the provision amount deposited by NHA.
in the Indemnity Agreement which allowed SSC to
Thus, any interest that accrues therefrom pertains to
recover from him, by mere demand, even if it (SSC) had
Josef by right of accession.
not yet paid the creditor, was void for being contrary to
law and public policy. (b) Distinguish commodatum from mutuum.
Can Sebastian legally refuse to pay SSC? (1) In commodatum, the creditor or bailor delivers to
the debtor or bailee consumable or non-consumable
No, Sebastian’s argument has no merit.
property so that the latter may use the same for a
Under Art. 2073 of the Civil Code, when there are two certain time and must return the same thing (Article
or more guarantors for the same debtor for the same 1933, NCC). In mutuum, the creditor delivers to the
debt, the one among them who has paid may demand debtor money or other consumable thing upon the
each of the others the share which is proportionately condition that the same amount of the same kind and
owing from him. quality is paid (Article 1933, NCC).

In the problem, SSC as guarantor who bound to be (2) The subject matter of commodatum maybe a
solidarity liable with Sebastian, its cause of action is movable or immovable thing, which is ordinarily non-
based on the surety bond that it posted to consumable (if the thing: borrowed is consumable, it is
accommodate Sebastian pending assessment by the merely for display or exhibition), while the subject
BIR. Sebastian’s argument that SSC cannot recover matter of mutuum is either money or consumable
from him because SSC has not paid anything from BIR
(3) Commodatum is essentially gratuitous, while
is wrong.
mutuum may be gratuitous or with a stipulation to pay
Here, BIR’s foreclosure of the bond served as payment interest
by SSC so as to allow him to recover indemnity from
Sebastian based on the indemnity agreement. (4) In commodatum, there is no transmission of
ownerships of the thing borrowed then while in
mutuum, the borrower acquires ownership of the thing
loaned.
2017
(5) In commodatum, the same thing borrowed is
III.
required to : be returned while in mutuum, the borrower
Josef owns a piece of land in Pampanga. The National discharges his obligation not by returning the identical
Housing Authority (NHA) sought to expropriate the thing loaned, but by paying its equivalent in kind,
property for its socialized housing project. The trial quality, and quantity.
court fixed the just compensation for the property at
XV.
P50 million. The NHA immediately deposited the same
at the authorized depository bank and filed a motion for Kevín signed a loan agreement with ABC Bank. To
the issuance of a writ of possession with the vial court. secure payment, Kevin requested his girlfriend Rosella
Unfortunately, there was delay in the resolution of the to execute a document entitled “Continuing Guaranty
motion. Meanwhile, the amount deposited earned Agreement” whereby she expressly agreed to be
interest. solidarily liable for the obligation of Kevin.

When Josef sought the release of the amount deposited Can ABC Bank proceed directly against Rosella
NHA argued that Josef should only be entitled to P50 upon Kevin’s default even without proceeding
million. against Kevin first? Explain your answer. (3%)

a) Who owns the interest earned? (3%) Yes. Despite the designation of the contract as a
“Continuing Guaranty Agreement,” the terms of the
Josef owns the interest earned.
document prevail. Rosella expressly agreed to be
In Republic v Holy Trinity Realty Development Corp., solidarily liable for obligation of Kevin.
(G.R. No. 172410, April 14, 2008), the Supreme Court
According to par. 2, Article 2047 of the New Civil Code,
has declared that upon deposit by the appropriator of
if a person binds himself solidarity with the principal
the amount fixed for just compensation, the owner
debtor, the contract is called a suretyship. A surety is
whose property is sought to be expropriated becomes
under a direct and primary obligation to the creditor and
the owner of the deposited amount. Any interest,
may be proceeded against in case the principal debtor
therefore, that accrues to such deposit belongs to the
does not pay as he is an insurer of the debt. Only a
owner by right of accession.
guarantor, an insurer of the principal debtor’s solvency,
enjoys the benefit of excussion. Suretyship being an
accessory contract, the principal debtor should be an quantification of damages may be deemed to have been
indispensable party to the action against the surely]. reasonably ascertained). The actual base for the
computation of legal interest shall, in any case, be on
the amount finally adjudged (Nacar v. Gallery Frames,
2016 G.R. No. 189871, August 13, 2013, 703 SCRA 439).

II. X

With regard to an award of interest in the concept of Jerico, the project owner, entered into a Construction
actual and compensatory damages, please state the Contract with Ivan for the latter to construct his house.
guidelines regarding the manner of computing legal Jojo executed a Surety undertaking to guarantee the
interest in the following situations: performance of the work by Ivan, Jerico and Ivan later
entered into a Memorandum of Agreement (MOA)
A) when the obligation is breached and it revising the work schedule of Ivan and the
consists in the payment of a sum of money like a subcontractors. The MOA stated that all the stipulations
loan or forbearance of money; (2.5%) of the original contract not in conflict with said
agreement shall remain valid and legally effective. Jojo
When the obligation is breached and it consists in the
filed a suit to declare him relieved of his undertaking as
payment of a sum of money like a loan or forbearance
a result of the MOA because of the change in the work
of money, in the absence of stipulation, the rate of
schedule. Jerico claims there is no novation of the
interest shall be the legal rate of 6% per annum (Article
Construction Contract.
2209 of the Civil Code), which was increased to 12%
per NB Circular No. 905 (Series of 1982), to be Decide the case and explain. (5%)
computed from default. The twelve percent 12% per
annum legal interest shall apply only until June 30, I will decide against Jerico.
2013. From July 1, 2013, the new rate of six percent
The provisions of the Civil Code (CC) on Guarantee,
(6%) per annum shall be the prevailing rate of interest other than the benefit of excussion (Article 2059 (2)
when applicable (Nacar V. Gallery. Frames, G.R. No.
CC), are applicable and available to the surety because
189871, August 13, 2013, 703 SCRA 439, applying BSP
a surety is a guarantor who binds himself solidarily
-MB Circular No. 799).
(Article 2047 2nd par.CC).
(NOTE: It is suggested that credit also be given in the
The Supreme Court has held that there is no reason why
event that the examinees cite Tañada v. the provisions of Article 2079 would not apply to a
Tuvera to support the conclusion that publication is surety (Autocorp Group v. Intra Strata Assurance
unnecessary in the case of interpretative regulations Corporation, G.R. No. 166662, June 27, 2008, 556 SCRA
and those merely internal in nature, as the language of 250). Article 2079 of the Civil Code provides that an
the problem may be interpreted by the examinees to
extension granted to the debtor by the creditor without
refer only to mere guidelines or directory matters]. The the consent of the guarantor extinguishes the guaranty.
examinee should be given credit if he mentions that the
actual base for computing the interest due on the loan The changes in the work schedule amount to an
or forbearance of money, goods or credit is the amount extension granted to the debtor without the consent of
of the loans, forbearance, plus whatever interest the surety.
is stipulated in writing; otherwise no interest may be
Hence, Jojo‘s obligation as a surety is extinguished. If
charged for using the money (Art. 1956 of the Civil
the change of work schedule, on the other hand,
Code)].
shortens the time of completion of the project, it will
B) when the obligation does not constitute a loan amount to a novation. The old obligation, where Jojo
or forbearance of money. (2.5%) was obligated as a surety is extinguished relatively as
to him, leaving Ivan as still bound.
The interest on the amount of damages awarded may
be imposed at the discretion of the court at the rate of
6% per annum. No interest, however, shall be adjudged
on unliquidated claims or damages, except when or
2015
until the demand can be established with reasonable XV
certainty. Accordingly, where the demand is established
with reasonable certainty, the interest shall begin to (A) Sara borrowed P50,000.00 from Julia and orally
run from the time the claim is made judicially or extra- promised to pay it within six months. When Sara tried
judicially, but when such certainty cannot be so to pay her debt on the 8th month, Julia demanded the
reasonably established at the time the demand is made, payment of interest of 12% per annum because of
the interest shall begin to run only from the date the Sara’s delay in payment. Sara paid her debt and the
judgment of the court is made (at which time the interest claimed by Julia. After rethinking, Sara
demanded back from Julia the amount she had paid as Article 1962 of the Civil Code provides that a deposit is
interest. Julia claims she has no obligation to return the constituted from the moment a person receives a thing
interest paid by Sara because it was a natural obligation belonging to another, with the obligation of safely
which Sara voluntarily performed and can no longer keeping it and of returning the same (Durban
recover. Apartments v. Pioneer Insurance, G.R. No. 179419.
March 30, 2011).
Do you agree? Explain. (4%)
Furthermore, Article 1998 of the Civil Code provides that
No, I do not agree with Julia. For a creditor to be
the deposit of effects made by travelers in hotels or inns
entitled to compensatory interest, the debtor must be
shall be regarded as necessary, and that the keepers of
in delay. As a rule, in order for delay to exist, demand
hotels and inns are responsible for the effects deposited
must have been made. In this case, there was no
as depositaries subject to their being notified of the
demand made upon the expiration of the 6-month
effects being brought in by the travelers and the taking
period; thus, Sara cannot be considered in delay, and is
by the travelers of such precautions which the hotel or
not liable to pay compensatory interest. There being no
inn-keepers or their substitutes advised relative to the
obligation to pay compensatory interest, Julia must
care and vigilance of such effects.
return the interest mistakenly paid since she was not
entitled thereto, and delivery was made merely through Article 1999 of the Civil Code also provides for the
mistake. If something is received when there is no right liability of the hotel-keeper for vehicles introduced or
to demand it, and it was unduly delivered through placed in the annexes of the hotel, which in this case is
mistake, the obligation to return it arises (Art. 2154, the basement of the hotel.
Civil Code).
(B) What is the liability, if any, of the Hotel for
(B) Distinguish civil and natural obligations. the loss of Cris’ car?

Civil obligations give a right of action to compel their The Hotel was constituted as a depositary in this case.
performance. Thus, it has the obligation to safely keep the car which
is expected by Cris to be returned to him. With the loss
Natural obligations, not being based on positive law but
of the car, the Hotel is liable for the cost of the car as
on equity and natural law, do not grant a right of action actual damages.
to enforce their performance, but after voluntary
fulfillment by the obligor, they authorize the retention Art. 2001 of the Civil Code provides that the act of a
of what has been delivered or rendered by reason thief or robber, who has entered the hotel is not
thereof (Art. 1423, Civil Code). deemed force majeure, unless it is done with the use of
arms or through an irresistible force.

In this case, there is no indication that the carnapping


2014 was done with the use of arms or through irresistible
VII. force; hence, the hotel cannot claim that it is not liable
for the loss of Cris’ car.
Due to the continuous heavy rainfall, the major streets
Manila became fiooded. This compelled Cris to check st XIX.
Square One Hotel. As soon as Cris got off from his
Who enjoys the Right of Retention?
Toyota Altis, the Hotel’s parking attendant got the key
of his car and gave him a valet parking customer’s clam (A) depositary until full payment of what may be due
stub. The attendant parked his car at the basement of him in deposit
the hotel. Early in the morning, Cris was informed by
the hotel manager that his car was carnapped. (4%) (B) lessee if he advances the expenses for the repair of
the leased premises
(A) What contract, if any, was perfected between
(C) bailee if bailor owes him something (D) builder in
Cris and the Hotel when Cris surrendered the key
bad faith for the recovery of necessary and useful
of his car to the Hotel’s parking attendant?
expenses
A contract of deposit was perfected between Cris and
the Hotel when Cris surrendered the key of his car to (A) depositary until full payment of what may be
due him in deposit
the Hotel’s parking attendant.

In Triple-V Food Services v. Filipino Merchants


[Note: Letter C will also be correct if “owes him
Insurance Company (G.R. No. 160544, February 21,
something” refers to damages (Article 1944 in
2005), it was ruled that when a car is entrusted to a
relation to Art. 1951).]
valet attendant there is a contract of deposit.

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