Professional Documents
Culture Documents
ANTICHRESIS
Essential Requisites common to both Pledge
and Mortgage:
COMMON PROVISIONS FOR PLEDGE AND MORTGAGE
1. They are constituted to secure fulfillment of the
principal obligation.
2. The pledgor or mortgagor is the absolute owner
of the thing pledge or mortgage.
COMMON PROVISIONS FOR PLEDGE AND MORTGAGE
Ownership:
• The pledgor or the mortgagor must be the owner,
otherwise the pledge or mortgage is VOID. Future
property therefore cannot be mortgaged or
pledged because of the lack of ownership.
COMMON PROVISIONS FOR PLEDGE AND MORTGAGE
Right to Alienate
The creditor cannot automatically become the
owner if at the time the debt falls due, the debt is
still unpaid. This violates the prohibition against
pactum commisorium.
Meaning of PACTUM COMMISSORIUM
It is a stipulation authorizing the creditor to
appropriate the things given by way of pledge
and mortgage or to dispose of them. It is declared
null and void by law. (Art 2088).
COMMON PROVISIONS FOR PLEDGE AND MORTGAGE
11. Bids must be for the whole purchase price and in cash. If
bid is accepted by pledgee, the latter is deemed to have
received the purchase as far as the pledgor or owner is
concerned. ( Art. 2114)
12. The sale of the thing pledged has the effect of
extinguishment of obligation, whether or not the proceeds of
the sale are equal to the amount of the principal obligation,
interest and expenses. If the price is higher than said
amount, debtor is not entitled to the excess unless otherwise
agreed (Art. 2115)
13. If the price of the sale is less , the creditor cannot anymore
recover the deficiency even if there is a stipulation to this
effect. (Art. 2115)
PROCEDURE OF PUBLIC SALE
1. Accessory Contract
2. Formal one
3. Indivisible (Art. 2139 in relation to Arts. 2089 &
2090)
4. It can secure all kinds of obligations, pure, or
subject to suspensive or resolutory condition. (
Art. 2139 in relation to Art. 2091)
ANTICHRESIS
Measurement of the Value of the fruits
Measurement is based on the actual
market value of the fruits at the time of the
application thereof to the interest and
principal. ( Art. 2133)
Antichresis is a formal contract.
To be valid, the principal and the interest
shall be specified in writing. Otherwise, it is
null and void.
ANTICHRESIS
Obligations & Rights of the Creditors Under Article 2135