Tuesday, March 24, 2015

Credit Transactions Case Doctrines: Letters of Credit, Trust Receipts, Guaranty, Surety, Pledge

CREDIT TRANSACTION
Reviewer II
Security Transactions
Att. Anthony Peralta
by Olive Cachapero


LETTERS OF CREDIT

TRANSFIELD PHILIPPINES, INC. V. LUZON HYDRO CORPORATION AUSTRALIA, ET. AL., (2004)
Letters of Credit : General Concepts, Code of Commerce, Art. 567, Art. 568, Art. 2
Nature and use of letters of credit (credits)
·         The relationship between the beneficiary and the issuer of a letter of credit is not strictly contractual, because both privity and a meeting of the minds are lacking, yet strict compliance with its terms is an enforceable right.
·         Nor is it a third-party beneficiary contract, because the issuer must honor drafts drawn against a letter regardless of problems subsequently arising in the underlying contract.  Since the bank’s customer cannot draw on the letter, it does not function as an assignment by the customer to the beneficiary. 
·         Nor, if properly used, is it a contract of suretyship or guarantee, because it entails a primary liability following a default. 
·         Finally, it is not in itself a negotiable instrument, because it is not payable to order or bearer and is generally conditional, yet the draft presented under it is often negotiable.

ü  In commercial transactions, a letter of credit is a financial device developed by merchants as a convenient and relatively safe mode of dealing with sales of goods to satisfy the seemingly irreconcilable interests of a seller, who refuses to part with his goods before he is paid, and a buyer, who wants to have control of the goods before paying. 
ü  The use of credits in commercial transactions serves to reduce the risk of nonpayment of the purchase price under the contract for the sale of goods. 
ü  However, credits are also used in non-sale settings where they serve to reduce the risk of nonperformance.  Generally, credits in the non-sale settings have come to be known as standby credits.

Commercial credits
Standby credits
involve the payment of money under a contract of sale

become payable upon the presentation by the seller-beneficiary of documents that show he has taken affirmative steps to comply with the sales agreement.
the credit is payable upon certification of a party's nonperformance of the agreement.
Ø  The documents that accompany the beneficiary's draft tend to show that the applicant has not performed.
The beneficiary of a commercial credit must demonstrate by documents that he has performed his contract.
The beneficiary of the standby credit must certify that his obligor has not performed the contract.

A letter of credit is a written instrument whereby the writer requests or authorizes the addressee to pay money or deliver goods to a third person and assumes responsibility for payment of debt therefor to the addressee. A letter of credit, however, changes its nature as different transactions occur and if carried through to completion ends up as a binding contract between the issuing and honoring banks without any regard or relation to the underlying contract or disputes between the parties thereto.

Independence principle
·         Thus, the engagement of the issuing bank is to pay the seller or beneficiary of the credit once the draft and the required documents are presented to it.  The so-called “independence principle” assures the seller or the beneficiary of prompt payment independent of any breach of the main contract and precludes the issuing bank from determining whether the main contract is actually accomplished or not. 
·         Under this principle, banks assume no liability or responsibility for the form, sufficiency, accuracy, genuineness, falsification or legal effect of any documents, or for the general and/or particular conditions stipulated in the documents or superimposed thereon, nor do they assume any liability or responsibility for the description, quantity, weight, quality, condition, packing, delivery, value or existence of the goods represented by any documents, or for the good faith or acts and/or omissions, solvency, performance or standing of the consignor, the carriers, or the insurers of the goods, or any other person whomsoever.

The independent nature of the letter of credit may be:
a)       independence in toto where the credit is independent from the justification aspect and is a separate obligation from the underlying agreement like for instance a typical standby; or
b)      independence may be only as to the justification aspect like in a commercial letter of credit or repayment standby, which is identical with the same obligations under the underlying agreement.  In both cases the payment may be enjoined if in the light of the purpose of the credit the payment of the credit would constitute fraudulent abuse of the credit.

Issue: Can the beneficiary invoke the independence principle? YES.
ü  In a letter of credit transaction, such as in this case, where the credit is stipulated as irrevocable, there is a definite undertaking by the issuing bank to pay the beneficiary provided that the stipulated documents are presented and the conditions of the credit are complied with. Precisely, the independence principle liberates the issuing bank from the duty of ascertaining compliance by the parties in the main contract. 
ü  As the principle’s nomenclature clearly suggests, the obligation under the letter of credit is independent of the related and originating contract.  In brief, the letter of credit is separate and distinct from the underlying transaction.

Held: Given the nature of letters of credit, petitioner’s argument—that it is only the issuing bank that may invoke the independence principle on letters of credit—does not impress this Court. To say that the independence principle may only be invoked by the issuing banks would render nugatory the purpose for which the letters of credit are used in commercial transactions.  As it is, the independence doctrine works to the benefit of both the issuing bank and the beneficiary.

Letters of credit are employed by the parties desiring to enter into commercial transactions, not for the benefit of the issuing bank but mainly for the benefit of the parties to the original transactions. 
Ø  With the letter of credit from the issuing bank, the party who applied for and obtained it may confidently present the letter of credit to the beneficiary as a security to convince the beneficiary to enter into the business transaction. 
Ø  The other party to the business transaction, i.e., the beneficiary of the letter of credit, can be rest assured of being empowered to call on the letter of credit as a security in case the commercial transaction does not push through, or the applicant fails to perform his part of the transaction.  It is for this reason that the party who is entitled to the proceeds of the letter of credit is appropriately called “beneficiary.”

Respondent banks had squarely raised the independence principle to justify their releases of the amounts due under the Securities.  Owing to the nature and purpose of the standby letters of credit, this Court rules that the respondent banks were left with little or no alternative but to honor the credit and both of them in fact submitted that it was “ministerial” for them to honor the call for payment.

“Fraud exception” principle
Citing Dolan’s treatise on letters of credit, petitioner argues that the independence principle is not without limits and it is important to fashion those limits in light of the principle’s purpose, which is to serve the commercial function of the credit. 

Issue: Would injunction then be the proper remedy to restrain the alleged wrongful draws on the Securities?

Most writers agree that fraud is an exception to the independence principle.  Professor Dolan opines that the untruthfulness of a certificate accompanying a demand for payment under a standby credit may qualify as fraud sufficient to support an injunction against payment.  The remedy for fraudulent abuse is an injunction.  However, injunction should not be granted unless: 
a)       there is clear proof of fraud;
b)      the fraud constitutes fraudulent abuse of the independent purpose of the letter of credit and not only fraud under the main agreement; and
c)       irreparable injury might follow if injunction is not granted or the recovery of damages would be seriously damaged.

Before a writ of preliminary injunction may be issued, there must be a clear showing by the complaint that there exists a right to be protected and that the acts against which the writ is to be directed are violative of the said right. It must be shown that the invasion of the right sought to be protected is material and substantial, that the right of complainant is clear and unmistakable and that there is an urgent and paramount necessity for the writ to prevent serious damage. 



TRUST RECEIPTS

COLINARES & VELOSO V. CA, (2000)
Trust Receipts: Rights of Purchaser, Sec. 11

Section 4, P.D. No. 115, the Trust Receipts Law
Trust receipt transaction - any transaction by and between a person referred to as the entruster, and another person referred to as the entrustee, whereby the entruster who owns or holds absolute title or security interest over certain specified goods, documents or instruments, releases the same to the possession of the entrustee upon the latter’s execution and delivery to the entruster of a signed document called a “trust receipt” wherein the entrustee binds himself to hold the designated goods, documents or instruments with the obligation to turn over to the entruster the proceeds thereof to the extent of the amount owing to the entruster or as appears in the trust receipt or the goods, documents or instruments themselves if they are unsold or not otherwise disposed of, in accordance with the terms and conditions specified in the trust receipt.

2 possible situations in a trust receipt transaction. 
1.        Money received under the obligation involving the duty to deliver it (entregarla) to the owner of the merchandise sold. 
2.       Merchandise received under the obligation to “return” it (devolvera) to the owner.

Estafa
Failure of the entrustee to turn over the proceeds of the sale of the goods, covered by the trust receipt to the entruster or to return said goods if they were not disposed of in accordance with the terms of the trust receipt shall be punishable as estafa under Article 315 (1) of the RPC, without need of proving intent to defraud


GUARANTY

TUPAZ IV & TUPAZ V. CA & BPI, (2005)
Guaranty: Benefit of Excussion, Art. 2058 to 2064, Art. 2081

Under Article 2058 of the Civil Code, the defense of exhaustion (excussion) may be raised by a guarantor before he may be held liable for the obligation. Petitioner likewise admits that the questioned provision is a solidary guaranty clause, thereby clearly distinguishing it from a contract of surety. It, however, described the guaranty as solidary between the guarantors; this would have been correct if two (2) guarantors had signed it. The clause “we jointly and severally agree and undertake” refers to the undertaking of the two (2) parties who are to sign it or to the liability existing between themselves. It does not refer to the undertaking between either one or both of them on the one hand and the petitioner on the other with respect to the liability described under the trust receipt. xxx 

Jose Tupaz bound himself personally liable for El Oro Corporation’s debts.

1.        First, excussion is not a pre-requisite to secure judgment against a guarantor. The guarantor can still demand deferment of the execution of the judgment against him until after the assets of the principal debtor shall have been exhausted. 
2.       Second, the benefit of excussion may be waived. Under the trust receipt dated 30 September 1981, petitioner Jose Tupaz waived excussion when he agreed that his “liability in [the] guaranty shall be DIRECT AND IMMEDIATE, without any need whatsoever on xxx [the] part [of respondent bank] to take any steps or exhaust any legal remedies xxx.” The clear import of this stipulation is that petitioner Jose Tupaz waived the benefit of excussion under his guarantee.



SURETY

SECURITY BANK V. CUENCA, (2000)
Surety: Obligations Secured, Art. 2053

Being an onerous undertaking, a surety agreement is strictly construed against the creditor, and every doubt is resolved in favor of the solidary debtor. The fundamental rules of fair play require the creditor to obtain the consent of the surety to any material alteration in the principal loan agreement, or at least to notify it thereof. Hence, petitioner bank cannot hold herein respondent liable for loans obtained in excess of the amount or beyond the period stipulated in the original agreement, absent any clear stipulation showing that the latter waived his right to be notified thereof, or to give consent thereto. This is especially true where, as in this case, respondent was no longer the principal officer or major stockholder of the corporate debtor at the time the later obligations were incurred. He was thus no longer in a position to compel the debtor to pay the creditor and had no more reason to bind himself anew to the subsequent obligations.

Continuing Surety
Issue: Contending that the Indemnity Agreement was in the nature of a continuing surety, petitioner maintains that there was no need for respondent to execute another surety contract to secure the 1989 Loan Agreement. Correct? NO.

Held: That the Indemnity Agreement is a continuing surety does not authorize the bank to extend the scope of the principal obligation inordinately.

In Dino v. CA, the Court held that “a continuing guaranty is one which covers all transactions, including those arising in the future, which are within the description or contemplation of the contract of guaranty, until the expiration or termination thereof.

To repeat, in the present case, the Indemnity Agreement was subject to the two limitations of the credit accommodation: 
1.        that the obligation should not exceed P8 million, and 
2.       that the accommodation should expire not later than November 30, 1981. Hence, it was a continuing surety only in regard to loans obtained on or before the aforementioned expiry date and not exceeding the total of P8 million.

In Dino, the surety Agreement specifically provided that “each suretyship is a continuing one which shall remain in full force and effect until this bank is notified of its revocation.” Since the bank had not been notified of such revocation, the surety was held liable even for the subsequent obligations of the principal borrower.

PALMARES V. CA & M. B. LENDING CORPORATION, (1998)
Surety distinguished from Guaranty, Art. 2047

Where a party signs a promissory note as a co-maker and binds herself to be jointly and severally liable with the principal debtor in case the latter defaults in the payment of the loan, is such undertaking of the former deemed to be that of a surety as an insurer of the debt, or of a guarantor who warrants the solvency of the debtor? SURETY.

The Civil Code pertinently provides:
Art. 2047. By guaranty, a person called the guarantor binds himself to the creditor to fulfill the obligation of the principal debtor in case the latter should fail to do so.

If a person binds himself solidarily with the principal debtor, the provisions of Section 4, Chapter 3, Title I of this Book shall be observed. In such case the contract is called a suretyship.

In the case at bar, petitioner expressly bound herself to be jointly and severally or solidarily liable with the principal maker of the note. The terms of the contract are clear, explicit and unequivocal that petitioner's liability is that of a surety. Her pretension that the terms "jointly and severally or solidarily liable" contained in the second paragraph of her contract are technical and legal terms which could not be easily understood by an ordinary layman like her is diametrically opposed to her manifestation in the contract that she "fully understood the contents" of the promissory note and that she is "fully aware" of her solidary liability with the principal maker.

Petitioner would like to make capital of the fact that although she obligated herself to be jointly and severally liable with the principal maker, her liability is deemed restricted by the provisions of the third paragraph of her contract wherein she agreed "that M.B. Lending Corporation may demand payment of the above loan from me in case the principal maker, Mrs. Merlyn Azarraga defaults in the payment of the note," which makes her contract one of guaranty and not suretyship. The purported discordance is more apparent than real.



Suretyship
Guaranty
A surety is an insurer of the debt
guarantor is an insurer of the solvency of the debtor
A suretyship is an undertaking that the debt shall be paid
a guaranty is an undertaking that the debtor shall pay
surety promises to pay the principal's debt if the principal will not pay
a guarantor agrees that the creditor, after proceeding against the principal, may proceed against the guarantor if the principal is unable to pay
A surety binds himself to perform if the principal does not, without regard to his ability to do so
A guarantor does not contract that the principal will pay, but simply that he is able to do so.
a surety undertakes directly for the payment and is so responsible at once if the principal debtor makes default
a guarantor contracts to pay if, by the use of due diligence, the debt cannot be made out of the principal debtor

Note: Quintessentially, the undertaking to pay upon default of the principal debtor does not automatically remove it from the ambit of a contract of suretyship. It has not been shown, either in the contract or the pleadings, that respondent corporation agreed to proceed against herein petitioner only if and when the defaulting principal has become insolvent. A contract of suretyship is that wherein one lends his credit by joining in the principal debtor's obligation, so as to render himself directly and primarily responsible with him, and without reference to the solvency of the principal.

Suretyship
A surety is bound equally and absolutely with the principal, and as such is deemed an original promissor and debtor from the beginning. This is because in suretyship there is but one contract, and the surety is bound by the same agreement which binds the principal. In essence, the contract of a surety starts with the agreement, which is precisely the situation obtaining in this case before the Court.

A surety is usually bound with his principal by the same instrument, executed at the same time and upon the same consideration; he is an original debtor, and his liability is immediate and direct. Thus, it has been held that where a written agreement on the same sheet of paper with and immediately following the principal contract between the buyer and seller is executed simultaneously therewith, providing that the signers of the agreement agreed to the terms of the principal contract, the signers were "sureties" jointly liable with the buyer. A surety usually enters into the same obligation as that of his principal, and the signatures of both usually appear upon the same instrument, and the same consideration usually supports the obligation for both the principal and the surety



E. ZOBEL, INC. V. CA, (1998)
Surety distinguished from Guaranty, Art. 2047

A contract of surety is an  accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation if the debtor does not.

A contract of guaranty, on the other hand, is a collateral undertaking to pay the debt of another in case the latter does not pay the debt.

Surety
Guarantor
usually bound with his principal by the same instrument, executed at the same time, and on the same consideration
guarantor's own separate undertaking, in which the principal does not join. It is usually entered into before or after that of the principal, and is often supported on a separate consideration from that supporting the contract of the principal.
He is an original promissor and debtor from the beginning, and is held, ordinarily, to know every default of his principal
The original contract of his principal is not his contract, and he is not bound to take notice of its non-performance.
Usually, he will not be discharged, either by the mere indulgence of the creditor to the principal, or by want of notice of the default of the principal, no matter how much he may be injured thereby
He is often discharged by the mere indulgence of the creditor to the principal, and is usually not liable unless notified of the default of the principal.
the insurer of the debt, and he obligates himself to pay if the principal does not pay.
the insurer of the solvency of the debtor and thus binds himself to pay if the principal is unable to pay 


Held: Based on the aforementioned definitions, it appears that the contract executed by petitioner in favor of SOLIDBANK,  albeit denominated as a "Continuing Guaranty," is a contract of surety. The terms of the contract categorically obligates petitioner as "surety" to induce SOLIDBANK to extend credit to respondent spouses. The contract clearly disclose that petitioner assumed liability to SOLIDBANK, as a regular party to the undertaking and obligated itself as an original promissor. It bound itself jointly and severally to the obligation with the respondent spouses. In fact, SOLIDBANK need not resort to all other legal remedies or exhaust respondent spouses' properties before it can hold petitioner liable for the obligation.

Stipulation
“agrees t guarantee, and hereby guarantee, the payment…”

The use of the term "guarantee" does not ipso facto mean that the contract is one of guaranty. Authorities recognize that the word "guarantee is frequently employed in business transactions to describe not the security of the debt but an intention to be bound by a primary or independent obligation. As aptly observed by the trial court, the interpretation of a contract is not limited to the title alone but to the contents and intention of the parties.
PHILIPPINE BLOOMING MILLS, INC. & CHING V. CA, (2003)
Surety distinguished from Guaranty, Art. 2047

Ching is liable for credit obligations contracted by PBM against TRB before and after the execution of the Deed of Suretyship This is evident from the tenor of the deed itself, referring to amounts PBM  may now be indebted or may hereafter become indebted” to TRB.

The law expressly allows a suretyship for “future debts”.  Article 2053 of the Civil Code provides:
A guaranty may also be given as security for future debts, the amount of which is not yet known; there can be no claim against the guarantor until the debt is liquidated.  A conditional obligation may also be secured.

Furthermore, this Court has ruled in Diño v. CA:
Under the Civil Code, a guaranty may be given to secure even future debts, the amount of which may not be known at the time the guaranty is executed.  This is the basis for contracts denominated as continuing guaranty or suretyship A continuing guaranty is one which is not limited to a single transaction, but which contemplates a future course of dealing, covering a series of transactions, generally for an indefinite time or until revoked
Ø  It is prospective in its operation and is generally intended to provide security with respect to future transactions within certain limits, and contemplates a succession of liabilities, for which, as they accrue, the guarantor becomes liable.  
Ø  Otherwise stated, a continuing guaranty is one which covers all transactions, including those arising in the future, which are within the description or contemplation of the contract of guaranty, until the expiration or termination thereof.  
Ø  How : A guaranty shall be construed as continuing when by the terms thereof it is evident that the object is to give a standing credit to the principal debtor to be used from time to time either indefinitely or until a certain period; especially if the right to recall the guaranty is expressly reserved.  Hence, where the contract states that the guaranty is to secure advances to be made “from time to time,” it will be construed to be a continuing one.

Examples: In other jurisdictions, it has been held that the use of particular words and expressions such as payment of “any debt,” “any indebtedness,” or “any sum,” or the guaranty of “any transaction,” or money to be furnished the principal debtor “at any time,” or “on such time” that the principal debtor may require, have been construed to indicate a continuing guaranty.


IFC V. IMPERIAL TEXTILE MILLS, INC., (2005).
Surety distinguished from Guaranty, Art. 2047

The Court does not find any ambiguity in the provisions of the Guarantee Agreement.  When qualified by the term “jointly and severally,” the use of the word “guarantor” to refer to a “surety” does not violate the law.
As Article 2047 provides, a suretyship is created when a guarantor binds itself solidarily with the principal obligor.  Likewise, the phrase in the Agreement -- “as primary obligor and not merely as surety” -- stresses that ITM is being placed on the same level as PPIC.  Those words emphasize the nature of their liability, which the law characterizes as a suretyship.

The use of the word “guarantee” does not ipso facto make the contract one of guaranty. This Court has recognized that the word is frequently employed in business transactions to describe the intention to be bound by a primary or an independent obligation. The very terms of a contract govern the obligations of the parties or the extent of the obligor’s liability.  Thus, this Court has ruled in favor of suretyship, even though contracts were denominated as a “Guarantor’s Undertaking” or a “Continuing Guaranty.”
  
Suretyship as merely an accessory or a collateral to a principal obligation
·         a suretyship is merely an accessory or a collateral to a principal obligation.
·         Although a surety contract is secondary to the principal obligation, the liability of the surety is direct, primary and absolute; or equivalent to that of a regular party to the undertaking.
·         A surety becomes liable to the debt and duty of the principal obligor even without possessing a direct or personal interest in the obligations constituted by the latter.


ESCANO & SILOS V. ORTIGAS, JR., (2007)
Surety distinguished from Joint and Solidary Obligations, Art. 2047, Art. 2066, Art. 2067, Art. 1217

“SURETIES hereby irrevocably agree and undertake to assume all of OBLIGORs’ said guaranties to PDCP and PAIC…”

Ø  Petitioners submit that they could only be held jointly, not solidarily, liable to Ortigas, claiming that the Undertaking did not provide for express solidarity.”
Ø  Ortigas in turn argues that petitioners, as well as Matti, are jointly and severally liable for the Undertaking, as the language used in the agreement “clearly shows that it is a surety agreement” between the obligors (Ortigas group) and the sureties (Escaño group). Ortigas points out that the Undertaking uses the word “SURETIES” in describing the parties.

Held: The Undertaking does not contain any express stipulation that the petitioners agreed “to bind themselves jointly and severally” in their obligations to the Ortigas group, or any such terms to that effect. Hence, such obligation established in the Undertaking is presumed only to be joint.

As provided in Article 2047 in a surety agreement the surety undertakes to be bound solidarily with the principal debtor.  Thus, a surety agreement is an ancillary contract as it presupposes the existence of a principal contract. It appears that Ortigas’s argument rests solely on the solidary nature of the obligation of the surety under Article 2047.
A suretyship requires a principal debtor to whom the surety is solidarily bound by way of an ancillary obligation of segregate identity from the obligation between the principal debtor and the creditor. The suretyship does bind the surety to the creditor, inasmuch as the latter is vested with the right to proceed against the former to collect the credit in lieu of proceeding against the principal debtor for the same obligation. At the same time, there is also a legal tie created between the surety and the principal debtor to which the creditor is not privy or party to. The moment the surety fully answers to the creditor for the obligation created by the principal debtor, such obligation is extinguished. At the same time, the surety may seek reimbursement from the principal debtor for the amount paid, for the surety does in fact “become subrogated to all the rights and remedies of the creditor.”

Note that Article 2047 itself specifically calls for the application of the provisions on joint and solidary obligations to suretyship contracts. Article 1217 of the Civil Code thus comes into play, recognizing the right of reimbursement from a co-debtor (the principal debtor, in case of suretyship) in favor of the one who paid (i.e., the surety).

Note: A guarantor who binds himself in solidum with the principal debtor under the provisions of the second paragraph does not become a solidary co-debtor to all intents and purposes. 

Surety
Solidary co-debtor
outside of the liability he assumes to pay the debt before the property of the principal debtor has been exhausted
Solidarity signifies that the creditor can compel any one of the joint and several debtors or the surety alone to answer for the entirety of the principal debt.
has the right to recover the full amount paid, and not just any proportional share, from the principal debtor or debtors.
“may claim from his co-debtors only the share which corresponds to each, with the interest for the payment already made.”
Subsidiary
solidary

Accordingly, the rights to indemnification and subrogation as established and granted to the guarantor by Articles 2066 and 2067 extend as well to sureties as defined under Article 2047. These rights granted to the surety who pays materially differ from those granted under Article 1217 to the solidary debtor who pays, since the “indemnification” that pertains to the latter extends “only [to] the share which corresponds to each [co-debtor].” It is for this reason that the Court cannot accord the conclusion that because petitioners are identified in the Undertaking as “SURETIES,” they are consequently joint and severally liable to Ortigas.


PLEADGE & MORTGAGE

DBP V. CA, (1998)
Pactum Commissorium, Art. 2087, Art. 2088: Effects on Pledge or Mortgage

Par.12.  After the Notice of Rescission, defendant DBP took possession of the Leasehold Rights of the fishpond in question

Elements of pactum commissorium:
1.        there should be a property mortgaged by way of security for the payment of the principal obligation, and
2.       there should be a stipulation for automatic appropriation by the creditor of the thing mortgaged in case of non-payment of the principal obligation within the stipulated period.

Condition no. 12 did not provide that the ownership over the leasehold rights would automatically pass to DBP upon CUBA’s failure to pay the loan on time.  It merely provided for the appointment of DBP as attorney-in-fact with authority, among other things, to sell or otherwise dispose of the said real rights, in case of default by CUBA, and to apply the proceeds to the payment of the loan.  DBP, however, exceeded the authority vested by condition no. 12 of the deed of assignment.  It had without foreclosure proceedings, whether judicial or extrajudicial, appropriated the leasehold rights of Cuba over the fishpond in question.”  At any rate, DBP’s act of appropriating CUBA’s leasehold rights was violative of Article 2088 of the Civil Code, which forbids a creditor from appropriating, or disposing of, the thing given as security for the payment of a debt. Instead of taking ownership of the questioned real rights upon default by CUBA, DBP should have foreclosed the mortgage, as has been stipulated in condition no. 22 of the deed of assignment.  But, as admitted by DBP, there was no such foreclosure.  

Article 2088 of the Civil Code which provides as follows:
ART. 2088 The creditor cannot appropriate the things given by way of pledge or mortgage, or dispose of them.  Any stipulation to the contrary is null and void.


BUSTAMANTE V. ROSEL, (1999)
Pactum Commissorium, Art. 2087, Art. 2088: Effects on Pledge or Mortgage

“in the event the borrowers fail to pay, the lender has the option to buy or purchase the collateral for a total consideration of P200K, inclusive of the borrowed amount and interest therein.”

A scrutiny of the stipulation of the parties reveals a subtle intention of the creditor to acquire the property given as security for the loan.  This is embraced in the concept of pactum commissorium, which is proscribed by law.  The intent to appropriate the property given as collateral in favor of the creditor appears to be evident, for the debtor is obliged to dispose of the collateral at the pre-agreed consideration amounting to practically the same amount as the loan.  In effect, the creditor acquires the collateral in the event of non payment of the loan. This is within the concept of  pactum commissorium. Such stipulation is void.


ONG. V. ROBAN LENDING CORPORATION, (2008)
Pactum Commissorium, Art. 2087, Art. 2088: Effects on Pledge or Mortgage

The SECOND PARTY hereby signed another promissory note with a promise to pay the FIRST PARTY in full within one year from the date of the consolidation and restructuring, otherwise the SECOND PARTY agree to have their “DACION IN PAYMENT” agreement, which they have executed and signed today in favor of the FIRST PARTY be enforced”

Issue: Whether the contract constitutes pactum commissorium or dacion en pago

Held: Pactum Commissorium.

In the case at bar, the MOA and the Dacion in Payment contain no provisions for foreclosure proceedings nor redemption.  Under the MOA, the failure by the petitioners to pay their debt within the one-year period gives respondent the right to enforce the Dacion in Payment transferring to it ownership of the properties covered by the TCT. Respondent, in effect, automatically acquires ownership of the properties upon petitioners’ failure to pay their debt within the stipulated period.

Ø  Respondent argues that the law recognizes dacion en pago as a special form of payment whereby the debtor alienates property to the creditor in satisfaction of a monetary obligation.

This does not persuade.  In a true dacion en pago, the assignment of the property extinguishes the monetary debt. In the case at bar, the alienation of the properties was by way of security, and not by way of satisfying the debt. The Dacion in Payment did not extinguish petitioners’ obligation to respondent.  On the contrary, under the MOA executed on the same day as the Dacion in Payment, petitioners had to execute a promissory note which they were to pay within one year.

That the questioned contracts were freely and voluntarily executed by petitioners and respondent is of no moment, pactum commissorium being void for being prohibited by law.


PLEDGE

ESTATE OF LITTON V. MENDOZA & CA, (1988)
Pledge:  Ownership of Collateral, Art. 2103, Art. 2102, Art. 2101, Art. 1951, Art. 2108, Art. 2112, Art. 2097
(see full text for the facts)

The fact that the deed of assignment was done by way of securing or guaranteeing Tan's obligation in favor of George Litton, Sr., as observed by the appellate court, will not in any way alter the resolution on the matter. The validity of the guaranty or pledge in favor of Litton has not been questioned. Our examination of the deed of assignment shows that it fulfills the requisites of a valid pledge or mortgage. 

Rule
 Although it is true that Tan may validly alienate the litigatious credit as ruled by the appellate court, citing Article 1634 of the Civil Code, said provision should not be taken to mean as a grant of an absolute right on the part of the assignor Tan to indiscriminately dispose of the thing or the right given as security. The Court rules that the said provision should be read in consonance with Article 2097 of the same code.  Although the pledgee or the assignee, Litton, Sr. did not ipso factobecome the creditor of private respondent Mendoza, the pledge being valid, the incorporeal right assigned by Tan in favor of the former can only be alienated by the latter with due notice to and consent of Litton, Sr. or his duly authorized representative. To allow the assignor to dispose of or alienate the security without notice and consent of the assignee will render nugatory the very purpose of a pledge or an assignment of credit.

Moreover, under Article 1634,  the debtor has a corresponding obligation to reimburse the assignee, Litton, Sr. for the price he paid or for the value given as consideration for the deed of assignment. Failing in this, the alienation of the litigated credit made by Tan in favor of private respondent by way of a compromise agreement does not bind the assignee, petitioner herein.

Note: Private respondent has, from the very beginning, been fully aware of the deed of assignment executed by Tan in favor of Litton, Sr. Having such knowledge thereof, private respondent is estopped from entering into a compromise agreement involving the same litigated credit without notice to and consent of the assignee, petitioner herein. More so, in the light of the fact that no reimbursement has ever been made in favor of the assignee as required under Article 1634. Private respondent acted in bad faith and in connivance with assignor Tan so as to defraud the petitioner in entering into the compromise agreement.


MANILA BANKING CORPORATION V. TEODORO, JR. AND TEODORO, (1989). (INCLUDE CONCURRING OPINION)               
Pledge:  Right to Payment, Art. 2102, Art. 2118
(see full text for the facts)

The assignment of receivables executed by appellants did not transfer the ownership of the receivables to appellee bank and release appellants from their loans with the bank incurred under promissory notes.

The Deed of Assignment provided that it was for and in consideration of certain credits, loans, overdrafts, and their credit accommodations extended to appellants by appellee bank, and as security for the payment of said sum and the interest thereon; that appellants as assignors, remise, release, and quitclaim to assignee bank all their rights, title and interest in and to the accounts receivable assigned. It was further stipulated that the assignment will also stand as a continuing guaranty for future loans of appellants to appellee bank and correspondingly the assignment shall also extend to all the accounts receivable; appellants shall also obtain in the future, until the consideration on the loans secured by appellants from appellee bank shall have been fully paid by them.

The position of appellants, however, is that the deed of assignment is a quitclaim in consideration of their indebtedness to appellee bank, not mere guaranty, in view of the following provisions of the deed of assignment:
... the Assignor do hereby remise, release and quit-claim unto said assignee all its rights, title and interest in the accounts receivable described hereunder. (Emphasis supplied by appellants, first par., Deed of Assignment).

... that the title and right of possession to said account receivable is to remain in said assignee and it shall have the right to collect directly from the debtor, and whatever the Assignor does in connection with the collection of said accounts, it agrees to do so as agent and representative of the Assignee and it trust for said Assignee.

The character of the transactions between the parties is not, however, determined by the language used in the document but by their intention. Definitely, the assignment of the receivables did not result from a sale transaction. It cannot be said to have been constituted by virtue of a dation in payment for appellants' loans with the bank evidenced by promissory note which are the subject of the suit for collection in a Civil Case. At the time the deed of assignment was executed, said loans were non-existent yet. Obviously, the deed of assignment was intended as collateral security for the bank loans of appellants, as a continuing guaranty for whatever sums would be owing by defendants to plaintiff, as stated in stipulation No. 9 of the deed.

Assignment of credit is an agreement by virtue of which the owner of a credit, known as the assignor, by a legal cause, such as sale, dation in payment, exchange or donation, and without the need of the consent of the debtor, transfers his credit and its accessory rights to another, known as the assignee, who acquires the power to enforce it to the same extent as the assignor could have enforced it against the debtor.


CHU V. COURT OF APPEALS ET AL., 1989
Pledge:  Right to Payment, Art. 2102, Art. 2118

As the collateral was also money or an exchange of "peso for peso," the provision in Article 2112 of the Civil Code for the sale of the thing pledged at public auction to convert it into money to satisfy the pledgor's obligation, did not have to be followed. All that had to be done to convert the pledgor's time deposit certificates into cash was to present them to the bank for encashment after due notice to the debtor.


CITIBANK, N.A. & INVESTOR FINANCE CORPORATION V. SABENIANO, (2006)
Pledge:  Right to Payment, Art. 2102, Art. 2118

The liquidation of respondent’s outstanding loans were valid in so far as petitioner Citibank used respondent’s savings account with the bank and her money market placements with petitioner FNCB Finance; but illegal and void in so far as petitioner Citibank used respondent’s dollar accounts with Citibank-Geneva.

Without the Declaration of Pledge, petitioner Citibank had no authority to demand the remittance of respondent’s dollar accounts with Citibank-Geneva and to apply them to her outstanding loans.  It cannot effect legal compensation under Article 1278 of the Civil Code since, petitioner Citibank itself admitted that Citibank-Geneva is a distinct and separate entity.  As for the dollar accounts, respondent was the creditor and Citibank-Geneva is the debtor; and as for the outstanding loans, petitioner Citibank was the creditor and respondent was the debtor.  The parties in these transactions were evidently not the principal creditor of each other. 

Therefore, this Court declares that the remittance of respondent’s dollar accounts from Citibank-Geneva and the application thereof to her outstanding loans with petitioner Citibank was illegal, and null and void. 

PARAY & ESPELETA V. RODRIGUEZ, ET AL., (2006)
Right of Redemption

Issue: WON the pledged shares of stock auctioned off in a notarial sale could still be redeemed by their owners.

The right of redemption as affirmed under Rule 39 of the Rules of Court applies only to execution sales, more precisely execution sales of real property.

Does the right of redemption exist over personal property? No law or jurisprudence establishes or affirms such right. Indeed, no such right exists. 

The right to redeem property is a bare statutory privilege to be exercised only by the persons named in the statute.

The right of redemption over mortgaged real property sold extrajudicially is established by Act No. 3135, as amended. The said law does not extend the same benefit to personal property. In fact, there is no law in our statute books which vests the right of redemption over personal property. Act No. 1508, or the Chattel Mortgage Law, ostensibly could have served as the vehicle for any legislative intent to bestow a right of redemption over personal property, since that law governs the extrajudicial sale of mortgaged personal property, but the statute is definitely silent on the point. And Section 39 of the 1997 Rules of Civil Procedure, extensively relied upon by the Court of Appeals, starkly utters that the right of redemption applies to real properties, not personal properties, sold on execution.

Obviously, since there is no right to redeem personal property, the rights of ownership vested unto the purchaser at the foreclosure sale are not entangled in any suspensive condition that is implicit in a redemptive period.

Issue #2: The Court of Appeals also found fault with the apparent sale in bulk of the pledged shares, notwithstanding the fact that these shares were owned by several people, on the premise the pledgors would be denied the opportunity to know exactly how much they would need to shoulder to exercise the right to redemption.

Held: Rule 39 of the Rules of Court does provide for instances when properties foreclosed at the same time must be sold separately, such as in the case of lot sales for real property under Section 19. However, these instances again pertain to execution sales and not extrajudicial sales. No provision in the Rules of Court or in any law requires that pledged properties sold at auction be sold separately.

On the other hand, under the Civil Code, it is the pledgee, and not the pledgor, who is given the right to choose which of the items should be sold if two or more things are pledged. No similar option is given to pledgors under the Civil Code. Moreover, there is nothing in the Civil Code provisions governing the extrajudicial sale of pledged properties that prohibits the pledgee of several different pledge contracts from auctioning all of the pledged properties on a single occasion, or from the buyer at the auction sale in purchasing all the pledged properties with a single purchase price. The relative insignificance of ascertaining the definite apportionments of the sale price to the individual shares lies in the fact that once a pledged item is sold at auction, neither the pledgee nor the pledgor can recover whatever deficiency or excess there may be between the purchase price and the amount of the principal obligation.

A different ruling though would obtain if at the auction, a bidder expressed the desire to bid on a determinate number or portion of the pledged shares. In such a case, there may lie the need to ascertain with particularity which of the shares are covered by the bid price, since not all of the shares may be sold at the auction and correspondingly not all of the pledge contracts extinguished. The same situation also would lie if one or some of the owners of the pledged shares participated in the auction, bidding only on their respective pledged shares.

Issue #3: Whether the consignations made by respondents extinguished their respective pledge contracts in favor of the Parays so as to enjoin the latter from auctioning the pledged shares.

Held: There is no doubt that if the principal obligation is satisfied, the pledges should be terminated as well. Article 2098 of the Civil Code provides that the right of the creditor to retain possession of the pledged item exists only until the debt is paid. Article 2105 of the Civil Code further clarifies that the debtor cannot ask for the return of the thing pledged against the will of the creditor, unless and until he has paid the debt and its interest. At the same time, the right of the pledgee to foreclose the pledge is also established under the Civil Code. When the credit has not been satisfied in due time, the creditor may proceed with the sale by public auction under the procedure provided under Article 2112 of the Code.

Section 18, Rule 39 provides that the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. However, the provision applies only to execution sales, and not extra-judicial sales, as evidenced by the use of the phrases “sale of property on execution” and “judgment obligor.”


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