2015 Mercantile Law Reviewer (Final)

TABLE OF CONTENTS

LETTERS OF CREDIT AND TRUST RECEIPTS LAW

III. KINDS OF NEGOTIABLE INSTRUMENTS ...... 17 A. PROMISSORY NOTE........................................ 17 B. BILL OF EXCHANGE ........................................ 18 IV. COMPLETION AND DELIVERY ................... 19 A. TWO STEPS INVOLVED IN THE EXECUTION OF NEGOTIABLE INSTRUMENTS ............................. 19

I. LETTERS OF CREDIT (L/C) .................. 2

B. INSERTION OF DATE ....................................... 19

A. DEFINITION AND NATURE OF LETTER OF CREDIT ................................................................... 2 B. PARTIES TO A LETTER OF CREDIT .................. 3

C. EFFECT OF ANTE-DATING AND POST-DATING .............................................................................. 19

C. BASIC PRINCIPLES OF LETTER OF CREDIT .... 4

D. COMPLETION OF BLANKS.............................. 19

II. TRUST RECEIPTS LAW [PD 115 (1973)] .......... 5

E. INCOMPLETE AND UNDELIVERED INSTRUMENTS.................................................... 20

A. DEFINITION/CONCEPT OF A TRUST RECEIPT TRANSACTION ...................................................... 5

F. COMPLETE AND UNDELIVERED INSTRUMENTS.................................................... 20

B. RIGHTS OF THE ENTRUSTER .......................... 6

G. INCOMPLETE AND DELIVERED INSTRUMENTS..................................................... 21

C. OBLIGATION AND LIABILITY OF THE ENTRUSTEE............................................................7 D. REMEDIES AVAILABLE..................................... 8

H. COMPLETE AND DELIVERED INSTRUMENTS .............................................................................. 21

E. WAREHOUSEMAN’S LIEN ................................ 8

V. SIGNATURE .......................................... 21 A. SIGNING IN TRADE NAME .............................. 21

NEGOTIABLE INSTRUMENTS LAW

B. SIGNATURE OF AGENT ................................... 21 C. SIGNATURE PER PROCURATION .................. 21 D. LIABILITY OF AN AGENT ................................ 22

I. DEFINITION ............................................ 11

E. INDORSEMENT BY MINOR OR CORPORATION ............................................................................. 22

A. DEFINITION AND PURPOSE ............................ 11

F. FORGERY ........................................................ 22

II. FORMS AND INTERPRETATION.................. 11

G. ACCEPTANCE AND PAYMENT UNDER MISTAKE .............................................................. 23

A. REQUISITES OF NEGOTIABILITY ..................... 11

VI. CONSIDERATION

B. REQUISITES OF A PROMISSORY NOTE ......... 12

................................. 25

A. WHO IS A HOLDER FOR VALUE (HFV)? ........ 26

C. REQUISITES OF A BILL OF EXCHANGE .......... 12

B. BURDEN OF PROOF - PRESUMPTION OF CONSIDERATION ................................................ 26

D. FIRST REQUIREMENT: IN WRITING AND SIGNED BY THE MAKER OR DRAWER ............... 12

VII. ACCOMMODATION PARTY ..................... 26

E. SECOND REQUIREMENT: CONTAINING AN UNCONDITIONAL PROMISE TO PAY OR ORDER TO PAY A SUM CERTAIN IN MONEY ................... 13

A. LIABILITY OF AN ACCOMMODATION PARTY 26 B. ACCOMMODATION PARTY AS SURETY ........ 27

F. PAYABLE ON DEMAND, OR AT A FIXED OR DETERMINABLE FUTURE TIME .......................... 14

VIII. NEGOTIATION ....................................

27

A. NEGOTIATION DISTINGUISHED FROM ASSIGNMENT ....................................................... 27

G. PAYABLE TO ORDER OR TO BEARER............ 15

i

TABLE OF CONTENTS B. MODES OF NEGOTIATION ............................. 27

F. PARTIES WHO MAY GIVE NOTICE OF DISHONOR ........................................................... 41

C. AS TO MANNER OF FUTURE METHOD OF NEGOTIATION ..................................................... 29

G. EFFECT OF NOTICE ......................................... 41

D. AS TO TITLE TRANSFERRED ......................... 30

H. FORM OF NOTICE (SEC. 96) ........................... 41

E. RIGHTS OF RESTRICTIVE INDORSEE ............ 30

I. WAIVER.............................................................. 41

F. AS TO KIND OF LIABILITY ASSUMED BY INDORSER ........................................................... 30

J. DISPENSATION WITH NOTICE ........................ 41 K. EFFECT OF FAILURE TO GIVE NOTICE ........... 41

G. AS TO PRESENCE/ABSENCE OF EXPRESS LIMITATIONS ........................................................ 31

XIV. DISCHARGE OF NEGOTIABLE INSTRUMENT

............................................................. 41

H. OTHER KINDS OF INDORSEMENT ................. 31

A. DISCHARGE OF NEGOTIABLE INSTRUMENT 41

IX. RIGHTS OF THE HOLDER ........................ 31 A. DEFINITION OF A HOLDER ............................. 31

B. BY PAYMENT IN DUE COURSE (ASKED IN 2000) ................................................................... 42

B. HOLDER IN DUE COURSE (HDC) ................... 32

C. BY WHOM MADE: ........................................... 42

C. DEFENSES AGAINST THE HOLDER ............... 36

D. BY INTENTIONAL CANCELLATION ............... 42

X. LIABILITIES OF PARTIES ..........................36

E. BY OTHER ACTS THAT DISCHARGE A SIMPLE CONTRACT .......................................................... 42

A. PARTIES PRIMARILY LIABLE (SEC. 60 AND 62) .............................................................................. 36

F. BY REACQUISITION OF PRINCIPAL DEBTOR IN HIS OWN RIGHT .................................................. 42

B. PARTIES SECONDARILY LIABLE ....................37 XI. WARRANTIES

G. BY MATERIAL ALTERATION .......................... 42

..................................... 38

H. DISCHARGE OF PARTIES SECONDARILY LIABLE ................................................................. 42

XII. PRESENTMENT FOR PAYMENT ...............39 A. PRESENTMENT MEANS ................................. 39

I. RIGHT OF PARTY WHO DISCHARGED INSTRUMENT ...................................................... 43

B. DATE AND TIME OF PRESENTMENT............. 39

J. RENUNCIATION BY HOLDER (SEC. 122) ........ 43

C. NECESSITY OF PRESENTMENT FOR PAYMENT .............................................................................. 39

XV. MATERIAL ALTERATION ....................... 43

D. PARTIES TO WHOM PRESENTMENT FOR PAYMENT ............................................................ 39

A. CONCEPT ........................................................ 43

SHOULD BE MADE .............................................. 39

B. CHANGES IN THE FOLLOWING CONSTITUTE MATERIAL ALTERATIONS (SEC. 125): ............... 44

E. DISPENSATION WITH PRESENTMENT FOR PAYMENT ............................................................ 39

C. EFFECT OF MATERIAL ALTERATION ............ 44 XVI. ACCEPTANCE

F. DISHONOR BY NON-PAYMENT ..................... 40

.................................... 44

A. DEFINITION ..................................................... 44

XIII. NOTICE OF DISHONOR ........................ 40

B. REQUISITES (SEC. 132): .................................. 44

A. PARTIES TO BE NOTIFIED .............................. 40

C. KINDS OF ACCEPTANCE: ............................... 44

B. WHEN GIVEN ................................................... 40

D. PROOF OF ACCEPTANCE (SUNDIANG AND AQUINO): ............................................................. 44

C. WHEN NOT NECESSARY TO GIVE TO DRAWER .............................................................................. 40

E. MANNER ......................................................... 44

D. WHEN NOT NECESSARY TO GIVE TO INDORSER ........................................................... 40

F. TIME FOR ACCEPTANCE (SEC. 136) ............... 45 G. RULES GOVERNING ACCEPTANCE .............. 45

E. WHO WILL BENEFIT ........................................ 40

ii

TABLE OF CONTENTS XVII. PRESENTMENT FOR ACCEPTANCE ........ 45

E. RISK-DISTRIBUTING SCHEME ....................... 53

A. REQUISITES: ................................................... 45

F. MEETING OF THE MINDS ............................... 53

B. WHEN PRESENTMENT FOR ACCEPTANCE NECESSARY: ....................................................... 45

III. CHARACTERISTICS OF AN INSURANCE CONTRACT ............................................. 53

C. WHEN PRESENTMENT FOR ACCEPTANCE EXCUSED: ............................................................ 46

A. IN GENERAL.................................................... 53 B. CONSENSUAL ................................................. 53

D. TIME/PLACE/MANNER OF PRESENTMENT 46

C. VOLUNTARY ................................................... 53

E. WHAT CONSTITUTES SUFFICIENT PRESENTMENT? ................................................. 46

D. ALEATORY ...................................................... 54

F. HOW MADE (SEC. 145) .................................... 46

E. EXECUTORY AND UNILATERAL BUT SYNALLAGMATIC ............................................... 54

G. EFFECT OF FAILURE TO MAKE PRESENTMENT ................................................... 47

F. CONDITIONAL ................................................. 54 G. CONTRACT OF INDEMNITY (FOR NON-LIFE INSURANCE) ....................................................... 54

(SEC. 144) ............................................................. 47 H. DISHONOR BY NON-ACCEPTANCE .............. 47 XVIII. PROMISSORY NOTES .........................47

H. CONTRACT OF ADHESION (FINE PRINT RULE) ............................................................................. 54

............................................47

I. PERSONAL CONTRACT ................................... 54

XIX. CHECKS

J. PROPERTY (FOR LIFE INSURANCE) .............. 55

A. DEFINITION ..................................................... 47

K. UBERRIMAE FIDES CONTRACT .................... 55

B. KINDS .............................................................. 47 C. EFFECTS .......................................................... 48

IV. CLASSES ............................................ 55

D. PRESENTMENT FOR PAYMENT .................... 48

A. MARINE INSURANCE ..................................... 55

F. EFFECT OF DELAY .......................................... 48

B. FIRE INSURANCE ........................................... 59 C. CASUALTY INSURANCE .................................. 61 D. SURETYSHIP ................................................... 62

INSURANCE CODE

E. LIFE INSURANCE ............................................ 63 E.2. TYPES ........................................................... 63 F. COMPULSORY MOTOR VEHICLE LIABILITY INSURANCE ........................................................ 66

I. CONCEPT OF INSURANCE ........................ 50 A. CONTRACT OF INSURANCE .......................... 50

IV. INSURABLE INTEREST ........................... 67

B. DOING OR TRANSACTING INSURANCE BUSINESS ............................................................. 51

A. IN GENERAL.....................................................67

C. GOVERNING LAW ............................................ 51

B. IN LIFE/HEALTH INSURANCE ....................... 68

D. BANCASSURANCE .......................................... 51

C. IN PROPERTY INSURANCE ............................ 70

E. PRE-NEED PLANS .......................................... 52

D. DOUBLE AND OVER INSURANCE; REINSURANCE..................................................... 72

II. ELEMENTS OF AN INSURANCE CONTRACT .

52

A. IN GENERAL .................................................... 52

E. MULTIPLE OR SEVERAL INTERESTS ON SAME PROPERTY ...........................................................74

B. SUBJECT MATTER .......................................... 52

V. PERFECTION OF THE INSURANCE CONTRACT

C. CAUSE AND RISK OF LOSS OR DAMAGE ..... 52

............................................................ 75

D. CONSIDERATION ........................................... 53

A. OFFER AND ACCEPTANCE/CONSENSUAL ...75

iii

TABLE OF CONTENTS B. PREMIUM PAYMENT ...................................... 76

F. LIABILITY FOR BAGGAGE OF PASSENGERS ............................................................................100

C. NON-DEFAULT OPTIONS IN LIFE INSURANCE ............................................................................... 77

III. SAFETY OF PASSENGERS ...................... 101

D. REINSTATEMENT OF A LAPSED LIFE INSURANCE POLICY ........................................... 78

A. LIABILITY, IN GENERAL .................................101 B. VOID STIPULATIONS ......................................101

E. REFUND OF PREMIUMS................................. 78

C. DURATION OF LIABILITY .............................. 102

VI. RESCISSION OF INSURANCE CONTRACTS .. 79

D. LIABILITY FOR ACTS OF OTHERS ................ 103

B. MISREPRESENTATION/OMISSIONS .............. 81

E. CONTRIBUTORY NEGLIGENCE .................... 104

C. BREACH OF WARRANTIES ............................ 83

F. EXTENT OF LIABILITY FOR DAMAGES ......... 105

VII. CLAIMS SETTLEMENT AND SUBROGATION

IV. BILL OF LADING ..................................106

............................................................ 84

A. DEFINITION .................................................... 106

A. CONCEPT OF LOSS......................................... 84

B. THREE-FOLD CHARACTER ........................... 107

B. NOTICE AND PROOF OF LOSS ...................... 85

C. DELIVERY OF GOODS ................................... 107

C. GUIDELINES ON CLAIMS SETTLEMENT ....... 86

D. PERIOD FOR FILING CLAIMS........................108

VIII. INSURANCE COMMISSIONER ................ 89

E. PERIOD FOR FILING ACTIONS......................108

A. JURISDICTION AND ADJUDICATORY POWERS .............................................................................. 89

V. MARITIME COMMERCE ..........................109 A. CHARTER PARTIES ....................................... 109

B. REVOCATION OF CERTIFICATE OF AUTHORITY ......................................................... 90

B. LIABILITY OF SHIP OWNERS AND SHIPPING AGENTS ...............................................................110

C. LIQUIDATION OF INSURANCE COMPANY .... 90

C. ACCIDENTS AND DAMAGES IN MARITIME COMMERCE......................................................... 112

TRANSPORTATION LAWS

D. CARRIAGE OF GOODS BY SEA ACT (COGSA) ............................................................................. 116 VI. THE WARSAW CONVENTION................... 117 A. APPLICABILITY ............................................... 117

I. COMMON CARRIERS ..............................

92

B. LIMITATION OF LIABILITY .............................. 117

A. CONCEPT ........................................................ 92

C. WILLFUL MISCONDUCT ................................. 118

B. DILIGENCE REQUIRED ................................... 94

CORPORATION CODE

C. LIABILITIES ...................................................... 94 II. VIGILANCE OVER GOODS ........................ 95 A. LIABILITY, IN GENERAL .................................. 95

I. CORPORATION ..................................... 120

B. EXEMPTING CAUSES ...................................... 95

A. DEFINITION .................................................... 120

C. CONTRIBUTORY NEGLIGENCE...................... 97

B. ATTRIBUTES OF THE CORPORATION ......... 120

D. DURATION OF LIABILITY FOR GOODS ......... 97

II. CLASSES OF CORPORATIONS .................

E. STIPULATION FOR LIMITATION OF LIABILITY .............................................................................. 99

121

A. STOCK CORPORATION .................................. 121 B. NON-STOCK CORPORATION ........................ 121

iv

TABLE OF CONTENTS C. OTHER CORPORATIONS................................121

E. REMOVAL ....................................................... 149

III. NATIONALITY OF CORPORATIONS .......... 124

F. FILLING OF VACANCIES ................................ 150

A. PLACE OF INCORPORATION TEST ............... 124

G. COMPENSATION [SEC. 30] ........................... 150

B. CONTROL TEST ............................................. 124

H. FIDUCIARY DUTIES AND LIABILITY RULES .. 151

C. GRANDFATHER RULE ................................... 125

I. RESPONSIBILITY FOR CRIMES ...................... 153

... 126

J. INSIDE INFORMATION ................................... 153

IV. CORPORATE JURIDICAL PERSONALITY

K. CONTRACTS .................................................. 154

A. DOCTRINE OF SEPARATE JURIDICAL PERSONALITY .................................................... 126

L. EXECUTIVE COMMITTEE ............................... 155 M. MEETINGS ..................................................... 155

B. DOCTRINE OF PIERCING THE CORPORATE VEIL ..................................................................... 127

VIII. STOCKHOLDERS AND MEMBERS .......... 157

V. INCORPORATION AND ORGANIZATION .... 128

A. RIGHTS OF A STOCKHOLDER AND MEMBERS ............................................................................ 157

A. PROMOTER .................................................... 129 B. NUMBER AND QUALIFICATIONS OF INCORPORATORS ............................................. 129

B. PARTICIPATION IN MANAGEMENT ............. 158

C. CORPORATE NAME—LIMITATIONS ON USE OF CORPORATE NAME ..................................... 129

D. REMEDIAL RIGHTS ....................................... 167

C. PROPRIETARY RIGHTS ................................. 163 E. OBLIGATION OF A STOCKHOLDER .............. 169

D. CORPORATE TERM .......................................130

F. MEETINGS ....................................................... 171

E. MINIMUM CAPITAL STOCK AND SUBSCRIPTION REQUIREMENTS .....................130

XIV. CAPITAL STRUCTURE ......................... 173

F. ARTICLES OF INCORPORATION ...................130

A. SUBSCRIPTION AGREEMENTS .................... 173

G. REGISTRATION AND ISSUANCE OF CERTIFICATE OF INCORPORATION ................. 134

B. CONSIDERATION FOR STOCKS ................... 174

H. ADOPTION OF BY-LAWS .............................. 135

D. PAYMENT OF BALANCE OF SUBSCRIPTION (SEC. 66 AND 67) ................................................ 179

VI. CORPORATE POWERS

C. SHARES OF STOCK ....................................... 174

......................... 136

A. GENERAL POWERS, THEORY OF GENERAL CAPACITY [SEC. 36] ........................................... 136

E. CERTIFICATE OF STOCK ................................ 181

B. SPECIFIC POWERS, THEORY OF SPECIFIC CAPACITY [SECS. 37-44] .................................... 136

G. DISPOSITION AND ENCUMBRANCE OF SHARES .............................................................. 184

C. HOW (CORPORATE POWERS) EXERCISED . 141

XV. DISSOLUTION AND LIQUIDATION .......... 186

D. TRUST FUND DOCTRINE ..............................144

A. MODES OF DISSOLUTION ............................ 186

VII. BOARD OF DIRECTORS AND TRUSTEES .. 145

B. METHODS OF LIQUIDATION ........................ 189

F. STOCK AND TRANSFER BOOK ..................... 184

A. DOCTRINE OF CENTRALIZED MANAGEMENT .............................................................................145

XVI. OTHER CORPORATIONS

..................... 191

A. CLOSE CORPORATIONS ................................ 191

B. BUSINESS JUDGMENT RULE ........................ 147

B. NON-STOCK CORPORATIONS ..................... 199

C. TENURE, QUALIFICATIONS AND DISQUALIFICATIONS OF DIRECTORS OR TRUSTEES ..........................................................148

C. RELIGIOUS CORPORATIONS ....................... 200 D. FOREIGN CORPORATIONS .......................... 201

D. ELECTIONS ....................................................149

XVII. MERGERS AND CONSOLIDATIONS ...... 204

v

TABLE OF CONTENTS A. DEFINITION AND CONCEPT ........................ 204

C. CIVIL LIABILITY OF FRAUD IN CONNECTION WITH SECURITIES TRANSACTIONS (SEC. 58) 223

B. CONSTITUENT VS. CONSOLIDATED CORPORATION ................................................. 205

D. CIVIL LIABILITY FOR MANIPULATION OF SECURITY PRICES (SEC. 59) ............................ 223

C. PLAN OF MERGER OR CONSOLIDATION [SEC. 76] ...................................................................... 205

E. CIVIL LIABILITY WITH RESPECT TO COMMODITY FUTURES CONTRACTS AND PRENEED PLANS (SEC. 60) .................................... 223

D. ARTICLES OF MERGER OR CONSOLIDATION ............................................................................ 205

F. CIVIL LIABILITY ON ACCOUNT OF INSIDER TRADING ........................................................... 223

E. PROCEDURE ................................................. 205 F. EFFECTIVITY .................................................. 206

G. LIABILITIES OF CONTROLLING PERSONS, AIDER AND ABETTOR AND OTHER SECONDARY LIABILITY ........................................................... 224

G. LIMITATIONS ................................................ 206 H. EFFECTS (SEC. 80) ....................................... 206

BANKING LAW

SECURITIES REGULATIONS CODE

I. THE NEW CENTRAL BANK ACT ................

233

A. STATE POLICIES ........................................... 233

I. STATE POLICY ..................................... 209

B. SALIENT FEATURES ..................................... 233

II. SECURITIES REQUIRED TO BE REGISTERED

.......................................................... 209

C. CREATION OF THE BANGKO SENTRAL NG PILIPINAS (BSP) ................................................ 233

III.PROCEDURE FOR REGISTRATION OF SECURITIES ........................................... 213

D. RESPONSIBILITY AND PRIMARY OBJECTIVE ........................................................................... 233

IV.PROHIBITIONS ON FRAUD, MANIPULATION AND INSIDER TRADING ............................ 214

E. MONETARY BOARD ..................................... 234

A.

MANIPULATION OF SECURITY PRICES ... 214

B.

SHORT SALES............................................ 215

C.

FRAUDULENT TRANSACTIONS ............... 215

D.

INSIDER TRADING .................................... 216

F. HOW THE BSP HANDLES BANKS IN DISTRESS ........................................................................... 235 G. HOW THE BSP HANDLES EXCHANGE CRISIS ........................................................................... 239 II. LAW ON SECRECY OF BANK DEPOSITS

.... 239

INVESTORS

A. POLICY .......................................................... 239

........................................................... 217

B. PURPOSE ...................................................... 239

V.PROTECTION

OF

A.

TENDER OFFER RULE .............................. 217

C. PROHIBITED ACTS ....................................... 240

B.

RULES ON PROXY SOLICITATION ........... 218

D. DEPOSITS COVERED ................................... 240

C.

DISCLOSURE RULE ................................... 218

E. EXCEPTIONS ................................................. 240

VI. CIVIL LIABILITY ................................... 221

F. GARNISHMENT OF DEPOSITS ..................... 242

A. CIVIL LIABILITIES ON ACCOUNT OF FALSE REGISTRATION STATEMENT (SEC. 56) ............ 221

III. GENERAL BANKING LAW OF 2000 ......... 243 A. POLICY .......................................................... 243

B. CIVIL LIABILITIES ARISING IN CONNECTION WITH PROSPECTUS, COMMUNICATIONS AND REPORTS (SEC. 57) ........................................... 222

B. DEFINITION AND CLASSIFICATION OF BANKS ........................................................................... 243

vi

TABLE OF CONTENTS C. DISTINCTION OF BANKS FROM QUASI-BANKS AND TRUST ENTITIES ....................................... 244

E. TECHNOLOGY TRANSFER ARRANGEMENTS ........................................................................... 264

D. BANK POWERS AND LIABILITIES ................ 245

II. PATENTS ........................................... 264

E. DILIGENCE REQUIRED OF BANKS .............. 248

A. PATENTABLE INVENTIONS ......................... 264

F. NATURE OF BANK FUNDS AND BANK DEPOSITS .......................................................... 250

A.1. INVENTION PATENT .................................. 264 B. NON-PATENTABLE INVENTIONS ................ 266

G. STIPULATION ON INTERESTS ..................... 250

C. OWNERSHIP OF A PATENT ......................... 266

H. GRANT OF LOANS AND SECURITY REQUIREMENTS (PRUDENTIAL MEASURES). 250

D. GROUNDS FOR CANCELLATION OF A PATENT ........................................................................... 267

I. PENALTIES FOR VIOLATION ......................... 255

E. REMEDY OF THE TRUE AND ACTUAL INVENTOR ......................................................... 268

IV. PHILIPPINE DEPOSIT INSURANCE CORPORATION ACT ................................ 256

F. RIGHTS CONFERRED BY A PATENT............ 268

A. PURPOSE OF THE PDIC ............................... 256

G. LIMITATIONS OF PATENT RIGHTS ............. 268

B. POWERS OF THE PDIC ................................. 256

H. PATENT INFRINGEMENT ............................. 270

C. FUNCTIONS OF THE PDIC ............................ 257

I. LICENSING....................................................... 271

D. BANK EXAMINATION ................................... 259

J. ASSIGNMENT AND TRANSMISSION OF RIGHTS .............................................................. 274

E. FINANCIAL ASSISTANCE .............................. 259

III. TRADEMARKS ...................................

F. RECEIVERSHIP OF CLOSED BANKS ............ 259 G. LIQUIDATION OF CLOSED BANKS .............. 259 V. FOREIGN CURRENCY DEPOSIT ACT

275

A. DEFINITION OF MARKS, COLLECTIVE MARKS, TRADE NAMES .................................................. 275

........ 260

B. ACQUISITION OF OWNERSHIP OF MARK . 276

A. CONCEPT ...................................................... 260

C. ACQUISITION OF OWNERSHIP OF TRADE NAME ................................................................. 276

B. SECRECY OF FOREIGN CURRENCY DEPOSITS ............................................................................ 260

D. NON-REGISTRABLE MARKS ....................... 276

PRIVILEGES ....................................................... 260

E. PRIOR USE OF MARK AS A REQUIREMENT 277

INTELLECTUAL PROPERTY LAW

F. TESTS TO DETERMINE CONFUSING SIMILARITY BETWEEN MARKS ........................ 278

I. INTELLECTUAL PROPERTY RIGHTS IN GENERAL ..............................................262

I. USE BY THIRD PARTIES OF NAMES, ETC. SIMILAR TO REGISTERED MARK ..................... 281

G. WELL-KNOWN MARKS ................................ 278 H. RIGHTS CONFERRED BY REGISTRATION .. 280

J. INFRINGEMENT AND REMEDIES .................. 281

A. STATE POLICIES ........................................... 262

K. UNFAIR COMPETITION ................................ 284

B. INTERNATIONAL CONVENTIONS GOVERNING INTELLECTUAL PROPERTY RIGHTS ................ 262

L. TRADE NAMES OR BUSINESS NAMES ....... 286

C. INTELLECTUAL PROPERTY RIGHTS ........... 262

M. COLLECTIVE MARKS .................................. 286

D. DIFFERENCES BETWEEN COPYRIGHTS, TRADEMARKS AND PATENT ........................... 262

IV. COPYRIGHTS ..................................... 287 A. DEFINITION ................................................... 287

vii

TABLE OF CONTENTS B. BASIC PRINCIPLES, SECTIONS 172.2, 175 AND 181 ....................................................................... 287

F. WHEN IS MONEY LAUNDERING COMMITTED ............................................................................ 310

C. COPYRIGHTABLE WORKS............................ 287

G. UNLAWFUL ACTIVITIES OR PREDICATE CRIMES ................................................................ 311

D. NON-COPYRIGHTABLE WORKS.................. 289 E. RIGHTS OF COPYRIGHT OWNER ................. 290

H. ANTI-MONEY LAUNDERING COUNCIL ........ 312

F. RULES ON OWNERSHIP OF COPYRIGHT .... 295

I. FREEZING OF MONETARY INSTRUMENT OR PROPERTY ......................................................... 313

G. LIMITATIONS ON COPYRIGHT ..................... 297

J. AUTHORITY TO INQUIRE INTO BANK DEPOSITS ........................................................... 314

IV. RULES OF PROCEDURE FOR INTELLECTUAL PROPERTY RIGHTS CASES (A.M. NO. 10-3-10 SC)

........................................................... 301

III. FOREIGN INVESTMENTS ACT (R.A. 7042) .. 315

A. IN WHAT COURTS APPLICABLE ...................301

A. POLICY OF THE LAW ..................................... 315 B. DEFINITION OF TERMS ................................. 316

B. APPLICABILITY OF REGULAR RULES ..........301

C. REGISTRATION OF INVESTMENTS ON NONPHILIPPINE NATIONALS ................................... 316

C. COMMENCEMENT OF CIVIL ACTION ............301 D. MODES OF DISCOVERY ............................... 302

D. FOREIGN INVESTMENTS IN EXPORT ENTERPRISE ...................................................... 317

E. PRE-TRIAL ..................................................... 303 F. CLARIFICATORY HEARINGS AND TRIAL..... 303

E. FOREIGN INVESTMENT IN DOMESTIC MARKET ENTERPRISE ...................................... 318

G. COMMENCEMENT OF CRIMINAL ACTION .. 303

F. FOREIGN INVESTMENT NEGATIVE LIST ...... 318

H. COMMON RULES ON ADMISSIBILITY OF EVIDENCE .......................................................... 303 I. EVIDENCE IN PATENT CASES ....................... 303 J. EVIDENCE IN TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION CASES ............... 304 K. EVIDENCE IN COPYRIGHT CASES ............... 304 L. ORDER OF DESTRUCTION ........................... 305

SPECIAL LAWS I. THE CHATTEL MORTGAGE LAW AND REAL ESTATE MORTGAGE LAW ......................... 307 II. ANTI-MONEY LAUNDERING ACT ............. 307 A. POLICY OF THE LAW .................................... 307 B. COVERED INSTITUTIONS ............................. 307 C. OBLIGATIONS OF COVERED INSTITUTIONS ............................................................................ 308 D. COVERED TRANSACTIONS ......................... 309 E. USPICIOUS TRANSACTIONS ........................ 309

viii

UP LAW BOC


MERCANTILE LAW

MERCANTILE LAW LETTERS OF CREDIT AND TRUST RECEIPTS LAW

1

UP LAW BOC


I. Letters of Credit (L/C)

MERCANTILE LAW

Those which do not have one of these conditions shall be mere letters of recommendation. (Art. 568, Code of Commerce)

A. DEFINITION AND NATURE OF LETTER OF CREDIT

Nature (1) Financial device – L/Cs are 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 (Bank of America, NT&SA v. Court of Appeals, 1993).

Definition Letters of credit are those issued by one merchant to another, or for the purpose of attending to a commercial transaction. (Art. 567, Code of Commerce) 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 (Transfield Philippines v. Luzon Hydro, 2004).

A letter of credit is one of the modes of payment, set out in Sec. 8, Central Bank Circular No. 1389, "Consolidated Foreign Exchange Rules and Regulations," dated 13 April 1993, by which commercial banks sell foreign exchange to service payments for, e.g., commodity imports (Reliance Commodities v. Daewoo, 1993).

An engagement by a bank or other person made at the request of a customer that the issuer shall honor drafts or other demands of payment upon compliance with the conditions specified in the credit (Prudential Bank v. Intermediate Appellate Court, 1992).

(2) Composite of three distinct contracts – An L/C transaction involves three distinct but intertwined relationships: (a) First Contract between the party applying for the L/C (buyer/importer/account party) and the party for whose benefit the L/C is issued (seller/exporter/beneficiary). (b) Second Contract between the buyer and the issuing bank. This contract is sometimes called the "Application and Agreement" or the "Reimbursement Agreement." (c) Third Contract between the issuing bank and the seller, in order to support the contract, under (a) above (Reliance Commodities v. Daewoo, 1993).

Purpose Its purpose is to substitute for, and support, the agreement of the buyer-importer to pay money under a contract or other arrangement, but does not necessarily constitute as a condition for the perfection of such arrangement (Reliance Commodities, Inc. v. Daewoo Industrial Co., Ltd., 1993) Essential Requisites of Letters of Credit: (1) Issued in favor of a definite person and not to order. (2) Limited to a fixed and specified amount, or to one or more undetermined amounts, but within a maximum the limits of which has to be stated exactly.

2

UP LAW BOC


Duration of Letters of Credit (1) Period stipulated by the parties; or (2) If no period is fixed; (a) 6 months from date if used in the Philippines (b) 12 months if abroad

MERCANTILE LAW

(a) Unconfirmed L/C - One which continues to be the obligation of the issuing bank (b) Confirmed L/C - One which is supported by the absolute assurance to the beneficiary that the confirming bank will undertake the issuing bank's obligation as its own according to the terms and conditions of the credit (Feati Bank and Trust Co. v. CA, 1991)

Types of letters of credit (1) As to the type of the main contract Commercial Standby Letter of Credit Letter of Credit Method of payment in Used to guarantee or a contract of sale secure an obligation in a non-sale transaction Reduce the risk of Reduce the risk of non-payment of non-performance of a purchase price under a contractual obligation contract of sale The seller can obtain The credit is payable payment from the upon certification of a issuer of L/C upon the party’s presentation of nonperformance of documents that show the agreement he has taken affirmative steps to comply with the sale agreement Beneficiary must Beneficiary must demonstrate that he certify that his obligor has performed the has not performed the contract contract

B. PARTIES TO A LETTER OF CREDIT Rights and Obligations of the Parties There would be at least three parties to a letter of credit: (1) Buyer/Exporter/Account Party – one who procures the letter of credit and obliges himself to reimburse the issuing bank upon receipt of documents of title. (2) Issuing Bank – the bank which undertakes: (1) to pay the seller upon receipt of the draft and proper documents of title; and (2) to surrender the documents to the buyer upon reimbursement. The obligation of the issuing bank to pay the seller is direct, primary, absolute, definite and solidary with the buyer, in the absence of stipulation in the letter of credit (Metropolitan Waterworks and Sewerage System v. Daway, 2004)

(2) As to revocability (a) Revocable L/C - One which can be revoked by the issuing bank without the consent of the buyer and seller (b) Irrevocable L/C - One which the issuing bank cannot revoke without the consent of the buyer and seller (Feati Bank and Trust Co. v. CA, 1991)

(3) Seller/Importer/Beneficiary – one who ships the goods to the buyer in compliance with a contract of sale and delivers the documents of title and draft to the issuing bank to recover payment. Depending on the transaction, the number of parties to the letter of credit may be increased.

(3) As to the obligation assumed by correspondent bank 3

UP LAW BOC


MERCANTILE LAW

Thus, the different types of correspondent banks:

(7) Paying Bank – the bank which undertakes to encash the drafts drawn by the seller.

(4) Advising/Notifying Bank – the bank which conveys to the seller the existence of the credit.

C. BASIC PRINCIPLES OF LETTER OF CREDIT Doctrine of Independence The principle of independence 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.

The bank assumes no liability except to notify and/or transmit to the seller the existence of the letter of credit. A notifying bank is not a privy to the contract of sale between the buyer and the seller, its relationship is only with that of the issuing bank and not with the beneficiary to whom he assumes no liability.

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 (Transfield Philippines v. Luzon Hydro, 2004; Bank of America, NT&SA v. Court of Appeals, 1993).

The bank may suggest to the seller its willingness to negotiate, but this fact alone does not imply that the notifying bank promises to accept the draft drawn under the documentary credit (Feati Bank and Trust Co. v. CA, 1991). (5) Confirming Bank – the bank which lends credence to the letter of credit issued by a lesser known issuing bank. The bank assumes a direct obligation to the seller and its liability is a primary one as if the bank itself had issued the letter of credit (Feati Bank and Trust Co. v. CA, 1991).

The independent nature of the letter of credit may be— (a) Independent in toto - the credit is independent from the justification aspect and is a separate obligation from the underlying agreement; (b) 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. (Transfield Philippines v. Luzon Hydro, 2004; Bank of America, NT&SA v. Court of Appeals, 1993).

(6) Negotiating Bank – the bank which discounts the draft presented by the seller. The bank buys or discounts a draft under the letter of credit. Its liability is dependent upon the stage of the negotiation. If before negotiation, it has no liability with respect to the seller but after negotiation, a contractual relationship will then prevail between the negotiating bank and the seller (Feati Bank and Trust Co. v. CA, 1991).

4

UP LAW BOC


Fraud Exception Principle The principle that limits the application of the independence principle only to instances where it would serve the commercial function of the credit and not when fraud attends the transaction.

MERCANTILE LAW

(3) Irreparable injury might follow if injunction is not granted or the recovery of damages would be seriously damaged Doctrine of Strict Compliance The settled rule in commercial transactions involving letters of credit requires that the documents tendered by the seller must strictly conform to the terms of the letter of credit.

In the case of Transfield Philippines v. Luzon Hydro, 2004, the petitioner alleged misrepresentation as constituting fraud. The Court, however, made no ruling as to whether the same indeed constitutes fraud.

Otherwise, the issuing bank or the concerned correspondent bank is not obliged to perform its undertaking under the contract.

Petitioner asserts that the "fraud exception" exists when the beneficiary, for the purpose of drawing on the credit, fraudulently presents to the confirming bank, documents that contain, expressly or by implication, material representations of fact that to his knowledge are untrue. In such a situation, petitioner insists, injunction is recognized as a remedy available to it.

The tender of documents by the beneficiary (seller) must include all documents required by the letter. A correspondent bank which departs from what has been stipulated under the letter of credit, as when it accepts a faulty tender, acts on its own risks and it may not thereafter be able to recover from the buyer or the issuing bank, as the case may be, the money thus paid to the beneficiary. (Feati v. Court of Appeals, 1991)

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. If it does not serve those functions, application of the principle is not warranted, and the common law principles of contract should apply (Transfield Philippines v. Luzon Hydro, 2004).

II. Trust Receipts Law [PD 115 (1973)] A. DEFINITION/CONCEPT OF A TRUST RECEIPT TRANSACTION A trust receipt is a written or printed document whereby the entrustee binds himself: (1) to hold the designated goods, documents or instruments in trust for the entruster, and (2) to sell or otherwise dispose of the 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

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 of injunction is available when the following are present: (1) Clear proof fraud; (2) Fraudulent abuse of the independent purpose of the letter of credit and only fraud under the main agreement and

5

UP LAW BOC


instruments themselves if they are unsold or not otherwise disposed of, in accordance with the terms and conditions specified in the trust receipt. (PD 115, Sec. 4)

MERCANTILE LAW

been paid in full, or if the merchandise has already been sold, the proceeds of the sale should be turned over to him by the importer or by his representative or successor in interest. (Prudential Bank v. National Labor Relations Commission, 1995)

A trust receipt transaction is any transaction by and between an entruster and the entrustee, whereby the entruster (who owns or holds absolute title or security interests 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.” (PD 115, Sec. 4)

B. RIGHTS OF THE ENTRUSTER The entruster shall have the following rights: (1) In case of sale: Right to the proceeds from the sale of the goods, documents or instruments released under a trust receipt to the entrustee to the extent of the amount owing to the entruster or as appears in the trust receipt (2) In case of non-sale: Right to the return of the goods, documents or instruments (3) Right to the enforcement of all other rights conferred on him in the trust receipt (which are not contrary to the provisions of PD 115) (4) Right to cancel the trust and take possession of the goods, documents or instruments subject of the trust or of the proceeds realized therefrom at any time upon default or failure of the entrustee to comply with any of the terms and conditions of the trust receipt or any other agreement between the entruster and the entrustee (5) Right to sell the goods, documents or instruments at public or private sale, not less than five days after serving or sending of notice to the entrustee of the intention to sell (6) Right to purchase at a public sale the goods, documents, or instruments (7) Right to recover deficiency from the entrustee should the proceeds be insufficient (PD 115, Sec. 7)

A. 1. LOAN/SECURITY FEATURE In a letter of credit-trust receipt arrangement, a bank extends a loan covered by the letter of credit, and the trust receipt acts as the security for the loan. In other words, the transaction involves a loan feature represented by the letter of credit, and a security feature which is in the covering trust receipt (Vintola v. Insular Bank of Asia and America, 1987).

A. 2. OWNERSHIP OF THE GOODS, DOCUMENTS AND INSTRUMENTS UNDER A TRUST RECEIPT To secure that the banker (entrustee) shall be repaid at the critical point — that is, when the imported goods finally reach the hands of the intended vendee — the banker takes the full title to the goods at the very beginning, and he continues to hold that title as his indispensable security until the goods are sold. The importer (entruster) becomes absolute owner of the imported merchandise as soon as he has paid its price. The ownership of the merchandise continues to be vested in the owner thereof or in the person who has advanced payment (entrustee), until he has

The entruster holding a security interest shall not, merely by virtue of such interest or having given the entrustee liberty of sale or other disposition of the goods, documents or instruments under the terms of the trust receipt 6

UP LAW BOC


transaction be responsible as principal or as vendor under any sale or contract to sell made by the entrustee. (PD 115, Sec. 8)

MERCANTILE LAW

(5) Return the goods, documents or instruments in the event of non-sale or upon demand of the entruster; and (6) Observe terms and conditions of the trust receipt not contrary to PD 115. (PD 115, Sec. 9)

B. 1. VALIDITY OF THE SECURITY INTEREST AS AGAINST THE CREDITORS OF THE ENTRUSTEE/INNOCENT PURCHASERS FOR VALUE

C. 1. PAYMENT/DELIVERY OF PROCEEDS OF SALE OR DISPOSITION OF GOODS, DOCUMENTS OR INSTRUMENTS

The entruster's security interest in goods, documents, or instruments pursuant to the terms of a trust receipt shall be valid as against all creditors of the entrustee for the duration of the trust receipt agreement. (PD 115, Sec. 12)

The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt shall constitute the crime of estafa, punishable under RPC 315, par. 1 (b). (PD 115, Sec. 13)

A purchaser of goods from an entrustee with right to sell, or of documents or instruments through their customary form of transfer, who buys the goods, documents, or instruments for value and in good faith from the entrustee, acquires said goods, documents or instruments free from the entruster's security interest. (PD 115, Sec. 11)

C. 2. RETURN OF GOODS, DOCUMENTS OR INSTRUMENTS IN CASE OF NONSALE The failure to return the goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute estafa, punishable under RPC 315, par. 1 (b). (PD 115, Sec. 13)

C. OBLIGATION AND LIABILITY OF THE ENTRUSTEE The entrustee shall have the following obligations: (1) Hold the goods, documents or instruments in trust for the entruster and shall dispose of them strictly in accordance with the terms and conditions of the trust receipt; (2) Receive the proceeds in trust for the entruster and turn over the same to the entruster to the extent of the amount owing to the entruster or as appears on the trust receipt; (3) Insure the goods for their total value against loss from fire, theft, pilferage or other casualties; (4) Keep said goods or proceeds thereof whether in money or whatever form, separate and capable of identification as property of the entruster;

C. 3. LIABILITY FOR LOSS OF GOODS, DOCUMENTS OR INSTRUMENTS The risk of loss shall be borne by the entrustee. Loss of goods, documents or instruments which are the subject of a trust receipt, pending their disposition, irrespective of whether or not it was due to the fault or negligence of the entrustee, shall not extinguish his obligation to the entruster for the value thereof. (PD 115, Sec. 10)

C. 4. PENAL SANCTION IF OFFENDER IS A CORPORATION If the violation or offense is committed by a corporation, partnership, association or other 7

UP LAW BOC


juridical entities, the penalty shall be imposed upon the directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense. (PD 115, Sec. 13)

MERCANTILE LAW

Claims included in the warehouseman’s lien A warehouseman shall have a lien on the goods deposited or the proceeds thereof in his hands: (1) All lawful charges for storage and preservation of the goods (2) All lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering, and other charges and expenses in relation to other goods (3) All reasonable charges and expenses for notice and advertisements of sale (4) Sale of the goods where default had been made in satisfying the warehouseman’s lien (Act No. 2137, Sec. 27)

D. REMEDIES AVAILABLE Upon default or failure of the entrustee to comply with the terms and conditions (a) The entruster may cancel the trust and take possession of the goods, documents or instruments subject of the trust or of the proceeds realized therefrom. (b) The entruster may sell the goods, documents or instruments not less than five days after serving or sending of the requisite notice, and the entruster may become a purchaser at a public sale. (c) The proceeds shall be applied (a) to the payment of the expenses thereof; (b) to the payment of the expenses of re-taking, keeping and storing the goods, documents or instruments; (c) to the satisfaction of the entrustee's indebtedness to the entruster. (PD 115, Sec. 7)

However, if a negotiable receipt is issued for the goods, the warehouseman shall have no lien thereon except for charges for storage of goods subsequent to the date of the receipt unless the receipt expressly enumerated other charges for which a lien is claimed. In such case, there shall be a lien for the charges enumerated so far as they are within Sec. 27 although the amount of the charges is not stated in the receipt. (Act No. 2137, Sec. 30) Against what property the lien may be enforced (a) Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims in regard to which the lien is asserted, and (b) Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted if such person had been so entrusted with the possession of goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid. (Act No. 2137, Sec. 28)

In case of failure to turn over the proceeds of the sale, or failure to return in case of non-sale File a criminal case for estafa under RPC 315, par. 1 (b). (PD 115, Sec. 13)

E. WAREHOUSEMAN’S LIEN The warehouseman’s lien under the Warehouse Receipts Law is the warehouseman’s legal right or interest in the depositor’s property. It is similar to the depositary’s right of retention, which is a means or device by which the depositary is able to obtain payment of what may be due because of the deposit (GomezSomera).

Satisfaction of lien by sale A warehouseman's lien for a claim, which has become due, may be satisfied as follows: 8

UP LAW BOC


(1) An itemized statement of the warehouseman's claim, showing the sum due at the time of the notice and the date or dates when it becomes due, (2) A brief description of the goods against which the lien exists, (3) A demand that the amount of the claim as stated in the notice of such further claim as shall accrue, shall be paid on or before a day mentioned, not less than ten days from the delivery of the notice if it is personally delivered, or from the time when the notice shall reach its destination, according to the due course of post, if the notice is sent by mail, (4) A statement that unless the claim is paid within the time specified, the goods will be advertised for sale and sold by auction at a specified time and place. (Act No. 2137, Sec. 33)

MERCANTILE LAW

Exception: Any person claiming a right of property or possession may pay the warehouseman the amount necessary to satisfy his lien and to pay the reasonable expenses and liabilities incurred. The warehouseman shall deliver the goods to the person making payment. (Act No. 2137, Sec. 33) Effect of sale The warehouseman shall not be liable for failure to deliver the goods to the depositor or owner of the goods or to a holder of the receipt given for the goods when they were deposited, even if such receipt be negotiable. (Act No. 2137, Sec. 36) Other methods of enforcing lien Other remedies allowed by law for the enforcement of a lien against personal property are not precluded. The right to recover so much of the warehouseman's claim as shall not be paid by the proceeds of the sale is not barred as well. (Act No. 2137, Sec. 35)

In accordance with the terms of a notice so given, a sale of the goods by auction may be had to satisfy any valid claim of the warehouseman for which he has a lien on the goods. (Act No. 2137, Sec. 33)

How lien may be lost (1) By surrendering possession of the goods (2) By refusing to deliver the goods when a demand is made with which he is bound to comply (Act No. 2137, Sec. 29)

From the proceeds of such sale, the warehouseman shall satisfy his lien including the reasonable charges of notice, advertisement and sale. The balance, if any, shall be held by the warehouseman and delivered on demand to the person to whom he would have been bound to deliver or justified in delivering goods. (Act No. 2137, Sec. 33)

Lien does not preclude other remedies Whether or not a warehouseman has a lien upon the goods, he is entitled to all remedies allowed by law to a creditor against a debtor for the collection of all charges and advances which the depositor has contracted to pay. (Act No. 2137, Sec. 32)

At any time before the goods are so sold General rule: The warehouseman shall retain the possession of the goods according to the terms of the original contract of deposit

9

UP LAW BOC


MERCANTILE LAW

MERCANTILE LAW


10

UP LAW BOC


I. Definition

private: Provided, however, That, unless otherwise fixed by the Monetary Board, coins shall be legal tender in amounts not exceeding Fifty pesos (P50.00) for denominations of Twenty-five centavos and above, and in amounts not exceeding Twenty pesos (P20.00) for denominations of Ten centavos or less.

A. DEFINITION AND PURPOSE 





MERCANTILE LAW

Written contract for the payment of money, by its form and on its face, intended as substitute for money and intended to pass from hand to hand to give the holder in due course (HDC) the right to hold the same and collect the sum due. Instruments are negotiable when they conform to all the requirements prescribed by the Negotiable Instruments Law (NIL; Act 2031, 03 February 1911). However, the fact that an instrument does not meet the foregoing requisites will not affect its validity, the only consequence being that it will be governed not by the NIL but by the general law on contracts (Campos).









Negotiable Instruments Not Legal tender Art. 1249, Civil Code. The payment of debts in money shall be made in the currency stipulated, and if it is not possible to deliver such currency, then in the currency which is legal tender in the Philippines. The delivery of promissory notes payable to order, or bills of exchange or other mercantile documents shall produce the effect of payment only when they have been cashed, or when through the fault of the creditor they have been impaired. In the meantime, the action derived from the original obligation shall be held in the abeyance. (1170)

Although considered as medium for payment of obligations, negotiable instruments are not legal tender. Negotiable instruments shall produce the effect of payment only when they have been encashed or when through the fault of the creditor they have been impaired. (Art. 1249, Civil Code) BUT a CHECK which has been cleared and credited to the account of the creditor shall be equivalent to a delivery to the creditor of cash. Settled is the rule that payment must be made in legal tender. A check is not legal tender and, therefore, cannot constitute a valid tender of payment. Since a negotiable instrument is only a substitute for money and not money, the delivery of such an instrument does not, by itself, operate as payment. Mere delivery of checks does not discharge the obligation under a judgment. The obligation is not extinguished and remains suspended until the payment by commercial document is actually realized. (BPI vs. Royeca, 2008)

II. Forms and Interpretation

Section 52, New Central Bank Act. Legal Tender Power. - All notes and coins issued by the Bangko Sentral shall be fully guaranteed by the Government of the Republic of the Philippines and shall be legal tender in the Philippines for all debts, both public and

A. REQUISITES OF NEGOTIABILITY Section 1, Negotiable Instruments Law (NIL). Form of negotiable instruments. - An instrument to be negotiable must conform to the following requirements: 11

UP LAW BOC


D. FIRST REQUIREMENT: IN WRITING AND SIGNED BY THE MAKER OR DRAWER

(a) It must be in writing and signed by the maker or drawer; (b) Must contain an unconditional promise or order to pay a sum certain in money; Must be payable on demand, or at a fixed or determinable future time; Must be payable to order or to bearer; and (e) Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.

Section 18, NIL. Liability of person signing in trade or assumed name. - No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.

D.1. IN WRITING

B. REQUISITES OF A PROMISSORY NOTE

What is considered "In writing" - includes print; written or typed. Section 191 of the NIL provides that the word “’written’ includes printed, and ‘writing’ includes print.”

Section 184, NIL. Promissory note, defined. - A negotiable promissory note within the meaning of this Act is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or to bearer. Where a note is drawn to the maker's own order, it is not complete until indorsed by him.

C. REQUISITES EXCHANGE

OF

A

BILL

MERCANTILE LAW

Rationale for requirement: Since an instrument is a document, there must be something in written form that can be transferred from person to person. (Abad)

D.2. SIGNED General Rule: No person is liable on the instrument whose signature does not appear thereon.

OF

Notes:  One who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name  Signature of any party may be made by duly authorized agent; no particular form of appointment necessary (Sec. 19, NIL)  Signature is binding and may be in one’s handwriting, printed, engraved, lithographed or photographed so long as it is intended or adopted as the signature of the signer or made with his authority (Campos).  Signature may appear on any part of the instrument. However, if the signature is so placed upon the instrument that it is not

Section 126, NIL. Bill of exchange, defined. - A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. Section 184 (defining a promissory note) and Section 126 (defining a bill of exchange) of the NIL contain the same requisites as in Section 1.

12

UP LAW BOC


clear in what capacity the person intended to sign, he is deemed an indorser. (Sec. 17[f], NIL)

Particular fund indicated is not the direct source of payment.

E. SECOND REQUIREMENT: CONTAINING AN UNCONDITIONAL PROMISE TO PAY OR ORDER TO PAY A SUM CERTAIN IN MONEY

E.2. ORDER OR PROMISE TO PAY

(a) An indication of a particular fund out of which reimbursement is to be made or a particular account to be debited with the amount; or (b) A statement of the transaction which gives rise to the instrument.





But an order or promise to pay out of a particular fund is not unconditional.

 

E.1. UNCONDITIONAL

 

The promise or order to pay, to be unconditional, must be unqualified (Campos). Must not be dependent upon a contingent event that is not certain to happen. (Abad) The fact that the condition appearing on the instrument has been fulfilled will not convert it into a negotiable one (see Sec. 4, NIL) Fund for Reimbursement

The drawee pays the payee from his own funds afterwards. The drawee pays himself from the particular fund indicated.

Particular fund indicated is the direct source of payment. (Sundiang and Aquino)

When conditional: A negotiable instrument is conditional when reference to the fund clearly indicates an intention that such fund alone should be the source of payment. (Metropolitan Bank vs. CA, 1991)

Section 3, NIL. When promise is unconditional. An unqualified order or promise to pay is unconditional within the meaning of this Act though coupled with:



MERCANTILE LAW

 

Indicating a Particular Fund (non-negotiable)

As to promissory note: Promise to pay should be express on the face of the instrument (Campos). The word "promise" is not absolutely necessary. Any expression equivalent to a promise is sufficient (Campos). Mere acknowledgment of a debt is insufficient (Campos). As to bill of exchange: Order – command made by the drawer addressed to the drawee ordering the latter to pay the payee or the holder a sum certain in money; the instrument is, by its nature, demanding a right. Words which are equivalent to an order are sufficient. A mere request or authority to pay does not constitute an order. Although the mere use of polite words like "please" does not of itself deprive the instrument of its characteristics as an order, its language must clearly indicate a demand upon the drawee to pay.

E.3. SUM CERTAIN

There is only one act —the drawee pays directly from the particular fund indicated.

PAYABLE

MUST

BE

Section 2, NIL. What constitutes certainty as to sum. - The sum payable is a sum certain within the meaning of this Act, although it is to be paid: 13

UP LAW BOC


(a) with interest; or (b) by stated installments; or (c) by stated installments, with a provision that, upon default in payment of any installment or of interest, the whole shall become due; or (d) with exchange, whether at a fixed rate or at the current rate; or (e) with costs of collection or an attorney's fee, in case payment shall not be made at maturity.

F. PAYABLE ON DEMAND, OR AT A FIXED OR DETERMINABLE FUTURE TIME Rationale: to inform the holder of the instrument of the date when he may enforce payment thereof.

F.1. ON DEMAND Section 7, NIL. When payable on demand. - An instrument is payable on demand: (a) When it is so expressed to be payable on demand, or at sight, or on presentation; or (b) In which no time for payment is expressed.

Note: A sum is certain if from the face of the instrument it can be determined even if it requires mathematical computation. (Sundiang and Aquino)

Where an instrument is issued, accepted, or indorsed when overdue, it is, as regards the person so issuing, accepting, or indorsing it, payable on demand.

E.4. PAYABLE IN MONEY 





The instrument must be capable of being transformed into money, since negotiable instruments are intended to be substitutes for money “Money” as used in the law is not necessarily limited to “legal tender” as defined by law but includes any particular kind of current money. (see, Sec. 6(e), NIL and PNB v. Zulueta) An agreement to pay in foreign currency is valid. (RA 8183)

Note: The holder may call for payment any time; and the maker has an option to pay at any time The refusal of the holder to accept payment will terminate the running of interest, if any, but the obligation to pay the note remains.

F.2. AT A FIXED TIME 

E.5. NON-NEGOTIABLE 

 



MERCANTILE LAW



An instrument which contains an order or promise to do an act in addition to the payment of money (with the exception of certain acts enumerated in Sec. 5 of the NIL) Payable in personal property like merchandise, shares of stock or gold. Maker or the person primarily liable has the option to require something to be done in lieu of payment of money. (Campos) But it is negotiable if the option to require something to be done in lieu of payment of money is with the holder

Only on the stipulated date, and not before, may the holder demand its payment. Should he fail to demand payment, the instrument becomes overdue but remains valid and negotiable. It is merely converted to a demand instrument with respect to the person who issued, accepted, or indorsed it when overdue. (Sec. 7, NIL)

F.3. AT A DETERMINABLE FUTURE TIME Section 4, NIL. Determinable future time; what constitutes. - An instrument is payable at a determinable future time, within the meaning of this Act, which is expressed to be payable: (a) At a fixed period after date or sight; or

14

UP LAW BOC


F.6. PROVISIONS EXTENDING TIME OF PAYMENT

(b) On or before a fixed or determinable future time specified therein; or (c) On or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening be uncertain. An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect.

General rule: Negotiability not affected. Effect is similar with that of an acceleration clause at the option of the maker (Campos). Exception: Where a note with a fixed maturity provides that the maker has the option to extend time of payment until the happening of contingency, the instrument is NOT negotiable. The time for payment may never come at all.

Note: It is required that the maturity of the instrument can be absolutely determined with certainty. (Abad)

G. PAYABLE TO ORDER OR TO BEARER

Examples:  At a fixed period after date or sight, e.g., “30 days after date.”  On or before a fixed or determinable future time specified therein, e.g., “payable on or before December 1, 2000”  On or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening be uncertain, e.g., “payable within 60 days after the death of Jose”

F.4. EFFECT PROVISIONS 



OF

MERCANTILE LAW

G.1 INSTRUMENT MUST WORDS OF NEGOTIABILITY

CONTAIN

For example: (1) “Pay to the order of Juan Cruz”, or “I promise to pay to the order of Juan Cruz” (2) “Pay to Juan Cruz or bearer”, or “I promise to pay Juan Cruz or bearer” Note: Instrument need not follow the language of the law, but any term which clearly indicates an intention to conform to the legal requirements is sufficient.

ACCELERATION

If option (absolute or conditional) to accelerate maturity is on the maker, the instrument is still NEGOTIABLE (Campos). If option to accelerate is on the holder and can be exercised only after the happening of a specified event/act over which he has no control (conditional), the instrument is still NEGOTIABLE (Campos).

G.2. NEGOTIABILITY DETERMINED FROM THE FACE OF THE INSTRUMENT The negotiability or non-negotiability of an instrument is determined from the face of the instrument itself. Where words "or bearer" printed on a check are cancelled by the drawer, instrument becomes not negotiable. (Caltex vs. CA, 1992)

Note: If option on the part of the holder is absolute, the instrument is non-negotiable.

G.3. PAYABLE TO BEARER Section 9, NIL. When payable to bearer. - The instrument is payable to bearer: (a) When it is expressed to be so payable; or (b) When it is payable to a person named therein or bearer; or (c) When it is payable to the order of a

F.5. INSECURITY CLAUSES Provisions in the contract which allow the holder to accelerate payment “if he deems himself insecure.” The instrument is rendered non-negotiable. (Sundiang and Aquino) 15

UP LAW BOC


fictitious or non-existing person, and such fact was known to the person making it so payable; or (d) When the name of the payee does not purport to be the name of any person; or (e) When the only or last indorsement is an indorsement in blank.

MERCANTILE LAW

person or to him or his order. It may be drawn payable to the order of: (a) A payee who is not maker, drawer, or drawee; or (b) The drawer or maker; or (c) The drawee; or (d) Two or more payees jointly; or (d) One or some of several payees; or (e) (f) The holder of an office for the time being.

Examples: (1) Expressed to be so payable - "I promise to pay the bearer the sum" (2) Payable to a person named therein or bearer -"Pay to A or bearer" (3) Payable to the order of a fictitious person or non-existing person, and such fact was known to the person making it so payable “Pay to John Doe or order" (4) Name of payee does not purport to be the name of any person – "Pay to cash"; "Pay to sundries." (5) Only or last indorsement is an indorsement in blank.

Where the instrument is payable to order, the payee must be named or otherwise indicated therein with reasonable certainty. Notes: Without the words "to order" or "to the order of" the instrument is payable only to the person designated therein and is therefore non-negotiable. (Consolidated Plywood Industries vs. IFC Leasing, 1987)

G.6. WHERE THE MAKER IS THE PAYEE (1) In effect making himself liable to himself. Thus, the instrument produces no legal effect. (2) Will produce legal effects only once the payee-maker indorses the instrument to another person because such indorsement will then give rise to rights and obligations. (Abad)

G.4. FICTITIOUS PAYEE RULE It is not necessary that the person referred to in the instrument is really non-existent or fictitious to make the instrument payable to bearer. The person to whose order the instrument is made payable may in fact be existing but he is still fictitious or non-existent under Sec. 9(c) of the NIL if the person making it so payable does not intend to pay the specified persons. (PNB v. Rodriguez, 2008)

G.7. IF BILL OF EXCHANGE, DRAWEE MUST BE NAMED OR DESIGNATED WITH REASONABLE CERTAINTY

A check drawn payable to the order of "CASH" is a check payable to bearer, and the bank may pay it to the person presenting it for payment without the drawer's indorsement. (Ang Tek Lian vs. CA, 1950)

(1) Applies only to a bill of exchange (2) A bill may be addressed to 2 or more drawees jointly whether they are partners or not, but not to 2 or more drawees in the alternative or in succession (Sec. 128, NIL).

G.5. PAYABLE TO ORDER

Examples: (1) “To Juan Cruz and Jose Reyes” – negotiable (2) “To Juan Cruz or Jose Reyes” – not negotiable; no certainty as to drawee

Section 8, NIL. When payable to order. - The instrument is payable to order where it is drawn payable to the order of a specified 16

UP LAW BOC


G.8. DETERMINATION NEGOTIABILITY

OF



In determining the negotiability of an instrument, the instrument in its entirety and by what appears on its face must be considered. It must comply with the requirements of Sec. 1 of the Negotiable Instruments Law. (Caltex Phils. v. CA, 1992)  The acceptance of a bill of exchange is not important in the determination of its negotiability. The nature of acceptance is important only on the determination of the kind of liabilities of the parties involved. (PBCOM vs. Aruego, 1993) Omissions and Additional Provisions Provisions That Do Not That Do Not Affect Affect Negotiability Negotiability (1) Non-dating of the instrument (2) Non-specification of value given, or that any value had been given (3) Non-specification of place where it is drawn or place where it is payable (4) Bears a seal (5) Designation of particular kind of currency in which payment is to be made. (Sec. 6)



MERCANTILE LAW

attorney to sign judgment and issue execution for the value of the instrument, costs, and attorney's fees. This is also called a judgment cognivit actionem. If accompanied by withdrawal of plea, it is called judgment relicta verificatione. A confession of judgment is not recognized in our country, as it is against public policy. It denies due process, and deprives the right of appeal. (PNB v. Manila Oil Refining)

III. Kinds of Negotiable Instruments A. PROMISSORY NOTE Section 184, NIL. Promissory note, defined. - A negotiable promissory note within the meaning of this Act is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or to bearer. Where a note is drawn to the maker's own order, it is not complete until indorsed by him.

(1) Authorizes the sale of collateral securities on default; (2) Authorizes confession of judgment on default; (3) Waives the benefit of law intended to protect the debtor; or (4) Allows the creditor the option to require something in lieu of money. (Sec. 5)

A.1. KINDS OF PROMISSORY NOTES (1) Certificate of deposit – a form of promissory note which is a written acknowledgment of a bank of its receipt of a certain sum with a promise to repay the same. (2) Bonds – a certificate or evidence of a debt on which the issuing company or governmental body promises to pay the bondholders a specified amount of interest for a specified length of time, and to repay the loan on the expiration date. (3) Debenture – a promissory note or bond backed by the general credit of a corporation and usually not secured by a mortgage or lien on any specific property. (Sundiang and Aquino)

Note: Negotiability is affected when instrument contains a promise or order to do any act in addition to the payment of money. Notes:  A confession of judgment is provision given by the maker authorizing the plaintiff's 17

UP LAW BOC


MERCANTILE LAW

B. BILL OF EXCHANGE Section 17, NIL. Construction where instrument is ambiguous. - Where the language of the instrument is ambiguous or there are omissions therein, the following rules of construction apply:

Section 126, NIL. Bill of exchange, defined. - A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. (Sec. 126)

x---x (e) Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election;

B.1. KINDS OF BILLS OF EXCHANGE (1) Draft – used synonymously with bill of exchange although it normally refers to a bill of exchange used in documentary exchange like letters of credit transactions. (2) Inland and foreign bill – an Inland bill is a bill which is, or on its face purports to be, both drawn and payable within the Philippines. Any other bill is a foreign bill. (3) Time draft – draft that is payable at a fixed date. (4) Sight or demand draft – payable when the holder presents it for payment. (5) Trade acceptance – used in contracts of sale where the seller as drawer orders the buyer (as drawee) to pay a sum certain to the same seller (payee). (6) Banker’s acceptance – a time draft across the face which the drawee has written the word accepted. (Sundiang and Aquino) (7) Check - A bill of exchange drawn on a bank payable on demand (Sec. 185). It is the most common form of bill of exchange.

x---x (1) The drawer and the drawee are the same person; (2) Drawee is a fictitious person; (3) Drawee does NOT have the capacity to contract (Sec. 130, NIL) (4) Where the bill is drawn on a person who is legally absent; (5) Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election (Sec. 17[e], NIL) Promissory Note

Bill of Exchange

Unconditional promise Unconditional order Involves 2 parties Maker liable

is

Involves 3 parties

primarily Drawer is only secondarily liable

Only one presentment: Two presentments: for for payment acceptance and for payment

B.2. INSTANCES WHEN A BILL OF EXCHANGE MAY BE TREATED AS A PROMISSORY NOTE: Section 130, NIL. When bill may be treated as promissory note. - Where in a bill the drawer and drawee are the same person or where the drawee is a fictitious person or a person not having capacity to contract, the holder may treat the instrument at his option either as a bill of exchange or as a promissory note. 18

UP LAW BOC


Bill of Exchange

Check

Not necessarily drawn on a deposit. The drawee need not be a bank

It is necessary that a check be drawn on a bank deposit. Otherwise, there would be fraud.

Death of a drawer of a BOE, with the knowledge of the bank, does not revoke the authority of the drawee to pay.

Death of the drawer of a check, with the knowledge of the bank, revokes the authority of the banker to pay.

May be presented for payment within reasonable time after its last negotiation.

Must be presented for payment within a reasonable time after its issue.

May be payable on Always payable demand or at a fixed demand or determinable future time

MERCANTILE LAW

considered as complete though it in fact may have blanks as to non-essentials... (Campos)

B. INSERTION OF DATE Section 13, NIL. When date may be inserted. Where an instrument expressed to be payable at a fixed period after date is issued undated, or where the acceptance of an instrument payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the instrument shall be payable accordingly. The insertion of a wrong date does not avoid the instrument in the hands of a subsequent holder in due course; but as to him, the date so inserted is to be regarded as the true date. Any holder may insert the true date of issue or acceptance of an instrument where: (1) The instrument is expressed to be payable at a fixed period after date is issued undated; or (2) The acceptance of an instrument payable at a fixed period after sight is undated.

on

IV. Completion and Delivery

C. EFFECT OF ANTE-DATING AND POST-DATING Section 12, NIL. Ante-dated and post-dated.The instrument is not invalid for the reason only that it is ante-dated or post-dated, provided this is not done for an illegal or fraudulent purpose. The person to whom an instrument so dated is delivered acquires the title thereto as of the date of delivery.

A. TWO STEPS INVOLVED IN THE EXECUTION OF NEGOTIABLE INSTRUMENTS (1) Writing of the instrument completely in accordance with the requisites of negotiability under Sec. 1. (2) Delivery of the instrument by the maker or the drawer to the payee in order to give legal effect thereto. (Abad)

D. COMPLETION OF BLANKS Section 14, NIL. Blanks; when may be filled. Where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the

Note: It may sometimes be difficult to locate the boundary line between a complete and an incomplete instrument... It would seem that if an instrument contains all the requisites for making it a negotiable one, it should be 19

UP LAW BOC


MERCANTILE LAW

F. COMPLETE AND UNDELIVERED INSTRUMENTS

paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time

Section 16, NIL. Delivery; when effectual; when presumed. - Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting, or indorsing, as the case may be; and, in such case, the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.

.

E. INCOMPLETE AND UNDELIVERED INSTRUMENTS Section 15, NIL. Incomplete instrument not delivered. - Where an incomplete instrument has not been delivered, it will not, if completed and negotiated without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery.

 Non-delivery of a complete instrument is a personal defense (Campos)  The maker or drawer of the instrument may withhold release.  Delivery of an instrument is a prerequisite for liability. If the instrument is complete in all its particulars, but is not delivered, there is no contract. However if the instrument is no longer in the possession of a party who has signed it, a delivery is presumed until the contrary is proved (Campos).  If the holder of the instrument is a holder in due course, the instrument is not merely prima facie deemed delivered, but this fact is conclusively presumed (Campos).  Until the same is delivered, the instrument remains revocable.

In this case a real defense exists and not even a holder in due course can recover on the instrument, for the law is specific that it is not a valid contract in the hands of any holder (Campos). There is no chance for it to become a negotiable instrument. Note: A drawee bank whose negligent custody of the checks, after partial execution, contributed to its escape, is stopped from raising the real defense under Sec. 15 of the NIL (Campos).

20

UP LAW BOC


(5) A person negotiating by delivery (as in the case of a bearer instrument) is liable only to his immediate indorsee.

G. INCOMPLETE AND DELIVERED INSTRUMENTS (Sec. 14, NIL) (1) Holder has prima facie authority to fill up the instrument, but he must first prove that he has the authority to fill up. For such presumption to apply, issuance is necessary. (2) The instrument must be filled up strictly in accordance with the authority given and within reasonable time (3) HDC may enforce the instrument as if filled up according to (2) above.

A. SIGNING IN TRADE NAME One who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name (Sec. 18, NIL)

B. SIGNATURE OF AGENT Sec. 19. Signature by agent; authority; how shown. - The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.

This provision merely raises a personal defense (Campos)

H. COMPLETE INSTRUMENTS

AND

MERCANTILE LAW

DELIVERED

Sec. 20. Liability of person signing as agent, and so forth. - Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.

In a complete and delivered instrument, rights and liabilities under the negotiable instruments law attach.

V. Signature Sec. 18. Liability of person signing in trade or assumed name. - No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.

Signature of any party may be made by duly authorized agent, established as in ordinary agency.

General rule: One whose signature does not appear on the instrument shall not be liable thereon.

C. SIGNATURE PER PROCURATION  A signature per procuration operates as notice to the holder that the agent has a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority (Sec. 21, NIL)  According to the majority rule, the words “per proc” or “procuration” must appear on the note for this rule in Section 21 to be applicable (Campos)

Exceptions: (1) The principal who signs through an agent (2) The forger (3) One who indorses in a separate instrument (allonge) OR where an acceptance is written on a separate paper (4) One who signs his assumed or trade name

21

UP LAW BOC


MERCANTILE LAW

latter can rightfully recover from the maker, free from the defense of minority (Campos).  REAL defense but available only to the incapacitated party (i.e. the minor or the corporation).

D. LIABILITY OF AN AGENT General rule: Where a person adds to his signature words indicating that he signs on behalf of a principal, then he is not liable if he was duly authorized.

F. FORGERY

Exceptions: (1) Mere addition of words describing him as an agent WITHOUT disclosing his principal (Sec. 20, NIL) (2) Where a broker or agent negotiates an instrument without indorsement, he incurs all liabilities in Sec. 65 of the NIL, unless he discloses name of principal and the fact that he is only acting as an agent. (Sec. 69, NIL)

Sec. 23. Forged signature; effect of. - When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.

Requisites to negative personal liablity of agent: (1) He must be duly authorized; (2) He must act within the scope of his authority (3) He must indicate in the instrument that he is signing merely as agent; and (4) He must disclose his principal.

Counterfeit making or fraudulent alteration of any writing, which may consist of: (1) Signing of another’s name with intent to defraud; or (2) Alteration of an instrument in the name, amount, name of payee, etc. with intent to defraud.

E. INDORSEMENT BY MINOR OR CORPORATION

General rule: When a signature is forged or made without the authority of the person, only the forged signature (not the instrument itself and the other genuine signatures) is wholly inoperative

 The indorsement or assignment of the instrument by a corporation or by an infant (minor) passes the property therein, notwithstanding that from want of capacity, the corporation or infant may incur no liability thereon (Sec. 22, NIL).  The above provision does not change the rule in civil law on minor's contracts, which provides that a contract enetered into by a minor is voidable, and the minor cannot be held liable thereon unless he ratifies it upon reaching majority.  However, under Section 22 of the NIL, should the minor indorse a negotiable instrument, although he cannot be held liable on his contract of indorsement, title to the instrument passes to his indorsee and the

Effects: (1) No right to retain the instrument (2) No right to give a discharge therefor (3) No right to enforce payment thereof against any party thereto can be acquired through or under such signature Exception: The party against whom it is sought to be enforced is precluded from setting up the forgery or want of authority as a defense (Sec. 23, NIL).

22

UP LAW BOC


F.1 PERSONS PRECLUDED FROM SETTING UP DEFENSE OF FORGERY (CAMPOS)

MERCANTILE LAW

Neal). Drawee cannot recover from the collecting bank because there is no privity between the collecting bank and the drawer. The collecting bank does not give any warranty re: the drawer’s signature. (Associated Bank vs. CA) (3) Indorsers subsequent to forgery are liable (such as collecting bank or last endorser) (4) Party who made the forgery is liable

(1) Those who warrant or admit the genuineness of the signature in question. This includes indorsers, persons negotiating by delivery and acceptors. (2) Those who, by their acts, silence, or negligence, are estopped from setting up the defense of forgery.

Payee’s signature forged (1) Payee is not liable (2) Drawer is still secondarily liable (3) Drawee is liable if it paid or accepted the instrument (Sec. 62, NIL; Price v. Neal), but it may pass liability back through the collection chain (4) Indorsers subsequent to forgery are liable (such as collecting bank) (5) Party who made the forgery is liable

F.2 RULES ON FORGERY F.2.A. PROMISSORY NOTE Maker’s signature forged (1) Maker is not liable because he never became a party to the instrument. (2) Indorsers subsequent to forgery are liable because of their warranties. (3) Party who made the forgery is liable.

Indorser’s signature forged (1) Drawer, payee, indorser whose signature/s was/were forged and all indorsers preceding the forgery are not liable. (2) Drawee is liable if it paid or accepted the instrument (Sec. 62, NIL; Price v. Neal). (3) Indorsers subsequent to forgery are liable. (such as collecting bank) (4) Party who made the forgery is liable.

Payee’s signature forged (1) Payee is not liable. (2) Maker is still liable. (REASON: Indorsement is not necessary to title and the maker engages to pay holder) (3) Indorsers subsequent to forgery are liable. (4) Party who made the forgery is liable. Indorser’s signature forged (1) Maker, payee, indorser whose signature/s was/were forged, and all indorsers preceding the forgery are not liable. (2) Indorsers subsequent to forgery are liable. (3) Party who made the forgery is liable.

G. ACCEPTANCE UNDER MISTAKE

AND

PAYMENT

Sec. 62. Liability of acceptor. - The acceptor, by accepting the instrument, engages that he will pay it according to the tenor of his acceptance and admits: (a) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument; and (b) The existence of the payee and his then capacity to indorse.

F.2.B. BILL OF EXCHANGE Drawer’s signature forged (1) Drawer is not liable because he was never a party to the instrument. (2) Drawee is liable if it paid or accepted the instrument (no recourse to drawer) because he admitted the genuineness of the drawer’s signature (Sec. 62, NIL; Price v. 23

UP LAW BOC


(1) When the drawee accepts or pays a forged instrument  Price v. Neal doctrine: As between equally innocent persons, the drawee who pays money on, or accepts, a check or draft the signature on which was forged CANNOT recover the money from the one who received it. The drawee is bound to know the signature of its depositor.  A bank is bound to know the signatures of its depositors. If a bank pays a forged check it must be considered as making the payment out of its own funds and cannot charge the account of the depositor whose signature was forged. (PNB vs. Quimpo, 1988)  A bank is liable, irrespective of its good faith, in paying a forged check. (Samsung vs. Far East Bank, 2004)

MERCANTILE LAW

 The negligence of the depositor/drawer would consist of the failure to to carefully examine bank statements, cancelled checks, his check stubs, and other pertinent records within a reasonable time and to report any errors without unreasonable delay to the drawee bank.  If a drawer/depositor’s negligence and delay should cause a bank to honor a forged check, the drawer cannot later complain should bank refuse to recredit his account (Campos). (4)

Effect of Payment under Forged Indorsements In the case of a drawee's acceptance or payment of a bill on which only an INDORSEMENT has been forged, the drawee can recover the amount paid out by him. RATIONALE: The drawee makes no warranty as to the genuineness of any indorsement (Campos).

(2) Extensions of Price v. Neal doctrine  Notes: The bar to recovery on the part of a drawee who pays money on, or accepts, a check or draft, is extended to overdrafts and stop payment orders.

(5) Effect of negligence of drawee in informing recipient of forgery  The rule is that a drawee's acceptance or payment of a bill on which only an INDORSEMENT has been forged is not a bar to his right to recover the amount paid out by him; however, there is an exception to this rule.  If it is shown that the drawee on learning of the forgery did not give prompt notice of it to the holder and that damage resulted to said holder, recovery by the drawee is barred (Clearfield Trust Co. v. US, 1943)

(a) Overdraft occurs when a check is issued for an amount more than what the drawer has in deposit with the drawee bank. Rule: The drawee who pays the holder of the bill cannot recover from the holder what he paid under mistake (Campos) (b) Stop Payment Order is one issued by the drawer of a check countermanding his first order to the drawee bank to pay the check. Rule: The drawee bank is bound to follow the order, provided it is received prior to its certification or payment of the check (Campos).

(6) Effect of negligence of drawer in case of forged indorsement on checks The drawer, as soon as he comes to know of a forged indorsement should promptly notify the drawee bank. Otherwise, should his negligent delay be the proximate cause of any

(3) Effects of Negligence of Depositor  If such negligence of the depositor was the proximate cause of the loss, the drawee-bank would NOT be liable 24

UP LAW BOC


subsequent loss to the bank, the latter may properly charge it to the drawer's account. (7) Comparing the liability of a collecting bank and a drawee bank A collecting bank is only liable for forged indorsements and not forgeries of the drawer or maker’s signature (PNB v CA, 1968).

MERCANTILE LAW

the degree of negligence of each will be weighed in considering the amount of loss which each should bear (BPI v CA, 1992)

VI. Consideration Section 25, NIL. Value, what constitutes. — Value is any consideration sufficient to support a simple contract. An antecedent or preexisting debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time.

Rationale: In presenting the checks for clearing, the collecting agent made an express guarantee on the validity of “all the prior endorsements.”  The collecting bank or last indorser generally suffers the loss because it has the duty to ascertain the genuineness of all prior indorsements considering that the act of presenting the check for payment to the drawee is an assertion that the party making the presentment had done its duty to ascertain the genuineness of the indorsements (BPI v CA, 1992).  A drawee bank is not liable for forged indorsements.

Section 191, NIL. Definition and meaning of terms. - In this Act, unless the contract otherwise requires: x---x "Value" means valuable consideration; x---x  “Value” and “consideration” are generally convertible terms. However, they may have different implications. When the payee of a noet sues the maker, or the payee of a bill sues the drawer, or an indorsee sues his immediate indorser, the word “consideration” is the more proper term to use. But where a holder sues any party to the instrument with whom he himself has not dealt, the term “value” is more appropriate.  An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time. (Sec. 25, NIL)  Value need not be full and a holder will be one for value even if he gave less than the face value of the instrument, provided the intention of the transferor is to transfer the full amount represented by the instrument.

Rationale: The drawee bank is not similarly situated as the collecting bank because the former makes no warranty as to the genuineness of any indorsement. The drawee bank’s duty is but to verify the genuineness of the drawer’s signature and not of the indorsement because only the drawer is its client. Note:  However, it should be noted that as an exception to the rule that a drawee bank is not liable for a forged indorsement, when the negligence of the drawee bank is the proximate cause of the collecting bank’s payment of a check with a forged indorsement, the drawee bank may be held liable to the collecting bank.  Furthermore, when both the collecting bank and the drawee bank are guilty of negligence, 25

UP LAW BOC


VII. Party

A. WHO IS A HOLDER FOR VALUE (HFV)? (1) A holder of an instrument for which value, which need not be in full, has been given at any given time but only with respect to all parties who have become parties to the instrument prior to the time at which value has been given. (Sec 26, NIL) (2) A holder who has a lien on the instrument but only to the extent of his lien. (Sec 27, NIL)

Section 24, NIL. Presumption of consideration. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.

WANT

Accommodation

Section 29, NIL. Liability of accommodation party. - An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder, at the time of taking the instrument, knew him to be only an accommodation party.

B. BURDEN OF PROOF PRESUMPTION OF CONSIDERATION

C. EFFECT OF CONSIDERATION

MERCANTILE LAW

An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person.

A. LIABILITY OF ACCOMMODATION PARTY

OF

AN

 Section 28 of the NIL states that the holder for value to whom the instrument thus executed is subsequently negotiated has a right of recourse against the accommodation party in spite of the former’s knowledge that no consideration passed between the accommodation and accommodated parties.  Does this mean that the accommodation party is liable to a holder even if he is not a holder in due course, provided he is a holder for value? The Supreme Court has ruled that an accommodation party is liable ONLY to a HOLDER IN DUE COURSE. However, the mere fact that the holder knew of the accommodation does not prevent him from being a holder in due course in order to recover from the accommodation party. (Stelco Marketing Corp. v. CA, 1992)

Section 28, NIL. Effect of want of consideration. - Absence or failure of consideration is a matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.  Absence or failure of consideration is a matter of defense as against any person not a holder in due course, hence, it is a personal defense  Partial failure of consideration is a defense pro tanto, meaning a defense to the extent of the failure (Abad).

26

UP LAW BOC


B. ACCOMMODATION PARTY SURETY

Transfer is a broader term than negotiation. If an instrument is transferred without negotiation, the transfer is a mere assignment which constitutes the transferee as a mere assignee, not a holder, subject to all defenses existing among prior parties. Transfer thus includes both an ordinary assignment and a negotiation (Campos).

AS

 An accommodation Party is generally regarded as a surety for the party accommodated  When the accomodation party makes payment to holder of the note, he has the right to sue the accommodated party for reimbursement. (Agro Conglomerates, Inc. v. CA, YEAR)  Note: A corporation cannot act as an accommodation party. The issue or endorsement of negotiable instruments by a corporation without consideration and for the accommodation of another is ultra vires (Crisologo v. CA, YEAR)

B. MODES OF NEGOTIATION B.1. BY DELIVERY – IF PAYABLE TO BEARER (SEC. 30) Section 191, NIL. Definition and meaning of terms. - In this Act, unless the contract otherwise requires: x---x "Delivery" means transfer of possession, actual or constructive, from one person to another; x---x "Issue" means the first delivery of the instrument, complete in form, to a person who takes it as a holder; x---x

VIII. Negotiation Section 30, NIL. What constitutes negotiation. An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer, it is negotiated by delivery; if payable to order, it is negotiated by the indorsement of the holder and completed by delivery.

 Delivery means transfer of possession of instrument by the maker or drawer, with intent to transfer title to the payee and recognize him as holder thereof  Issuance is the FIRST delivery of the instrument complete in form to a person who takes it as a holder.

A. NEGOTIATION DISTINGUISHED FROM ASSIGNMENT Negotiation

Assignment

The transfer of the instrument from one person to another so as to constitute the transferee the holder thereof (Sec.30, NIL).

The transferee does not become a holder, nor can he become a holder in due course; and he merely steps into the shoes of the transferor. As such, any defense available against the transferor is available against the transferee.

MERCANTILE LAW

Requisites (1) Mechanical act of writing the instrument completely and in accordance with the requirements of Section 1 of the NIL; and (2) The delivery of the complete instrument by the maker or drawer, with the intention of giving effect to it, to the payee or holder.. Presumption of delivery (1) Where the instrument is no longer in the possession of a party whose signature 27

UP LAW BOC


appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved (Sec. 16, NIL) (2) If it is in the hands of a holder in due course, the presumption of a valid delivery is conclusive (Sec. 16, NIL)

MERCANTILE LAW

(3) Must be of the ENTIRE instrument Section 32, NIL. Indorsement must be of entire instrument. - The indorsement must be an indorsement of the entire instrument. An indorsement which purports to transfer to the indorsee a part only of the amount payable, or which purports to transfer the instrument to two or more indorsees severally, does not operate as a negotiation of the instrument. But where the instrument has been paid in part, it may be indorsed as to the residue.

Presumption as to date (1) Date is not an essential element of negotiability; it is not included in the requirements for an instrument to be negotiable under Sec. 1 of the NIL. (2) An undated instrument is considered to be dated as of the time it was issued (Sec. 17 (c), NIL)

(a) CANNOT indorse a part only of the amount payable; BUT if the instrument has been paid in part, then the instrument may be indorsed as to the residue (Sec. 32,) NIL (b) CANNOT transfer the instrument to two or more indorsees severally (Sec. 32, NIL) (c) If not an indorsement of the entire instrument, the transfer remains valid, but as a mere assignment which subjects the holder to all defenses on the instrument (Campos)

B.2. BY INDORSEMENT COMPLETED BY DELIVERY – IF PAYABLE TO ORDER (SEC. 30) Section 191, NIL. Definition and meaning of terms. - In this Act, unless the contract otherwise requires: x---x "Indorsement" means an indorsement completed by delivery; x---x

(4) If name misspelled in indorsement, indorsement will be prima facie deemed not valid.

B.2.A. INDORSEMENT; HOW DONE Section 31, NIL. Indorsement; how made. - The indorsement must be written on the instrument itself or upon a paper attached thereto. The signature of the indorser, without additional words, is a sufficient indorsement.

Section 43, NIL. Indorsement where name is misspelled, and so forth. - Where the name of a payee or indorsee is wrongly designated or misspelled, he may indorse the instrument as therein described adding, if he thinks fit, his proper signature.

(1) Where placed – The indorsement must be written (Sec. 31, NIL): (a) On the instrument itself (Sec. 31, NIL) , or (b) On a separate piece of paper attached to the instrument called “allonge”(Sec. 31, NIL)

(a) The indorsement should be made by the holder in the manner he was designated, otherwise the signature will prima facie not be a valid indorsement of the instrument (Sec 43, NIL)

(2) Signature of the indorser, without additional words, is a sufficient indorsement (Sec. 31, NIL)

28

UP LAW BOC


(5) Indorsement where there are joint payees (a)Where the instrument is payable or indorsed to “A and B,” they are joint payees and an indorsement by either A or B only will not constitute a valid negotiation, UNLESS the one indorsing is authorized by the other (Campos). (b) But where the instrument is payable to “A or B”, they payees are merely in the alternative, and either one may valdily negotiate the same (Campos).

MERCANTILE LAW

Section 40, NIL. Indorsement of instrument payable to bearer. - Where an instrument, payable to bearer, is indorsed specially, it may nevertheless be further negotiated by delivery; but the person indorsing specially is liable as indorser to only such holders as make title through his indorsement. Section 35, NIL. Blank indorsement; how changed to special indorsement. - The holder may convert a blank indorsement into a special indorsement by writing over the signature of the indorser in blank any contract consistent with the character of the indorsement.

B.2.B. KINDS OF INDORSEMENT Section 33, NIL. Kinds of indorsement. - An indorsement may be either special or in blank; and it may also be either restrictive or qualified or conditional. There are four bases of classification of indorsements under the NIL: (1) Special or in blank (2) Restrictive or Non-Restrictive (3) Qualified or unqualified (4) Conditional or unconditional

(1) Special (a) Specifies the person to whom/to whose order the instrument is to be payable; indorsement of such indorsee is necessary to further negotiation. (b) A special indorser is liable to all subsequent holders, unless the instrument is an originally bearer instrument, in which case he is liable only to those who take title through his indorsement (Sec. 40, NIL). (c) An instrument, payable to bearer, and indorsed specially, may nevertheless be further negotiated by delivery. (Sec 40, NIL)  Originally bearer instrument always remains a bearer instrument (Sundiang and Aquino)

All of the four bases of classification coexist with each other; thus, an indorsement may be special and qualified at the same time. It may also be special and unqualified, special and restrictive, special, unrestrictive and unqualified and so on (Campos).

C. AS TO MANNER OF FUTURE METHOD OF NEGOTIATION Section 34, NIL. Special indorsement; indorsement in blank. - A special indorsement specifies the person to whom, or to whose order, the instrument is to be payable, and the indorsement of such indorsee is necessary to the further negotiation of the instrument. An indorsement in blank specifies no indorsee, and an instrument so indorsed is payable to bearer, and may be negotiated by delivery.

(2) Blank (a) Specifies no indorsee, instrument so indorsed is payable to bearer, and may be negotiated by delivery (b) The holder may convert a blank indorsement into a special indorsement by writing over the signature of the indorser in blank any contract consistent with the character of the indorsement. (Sec 35, NIL)

29

UP LAW BOC


(c) An order instrument may be converted into a bearer instrument by means of a blank indorsement, and may be later reconverted into an order instrument by a subsequent special indorsement

MERCANTILE LAW

(c) Transfer his rights as such indorsee, but all subsequent indorsees acquire only the title of first indorsee under restrictive indorsement. (Sec 37, NIL) (2) Non-restrictive

D. AS TO TITLE TRANSFERRED

F. AS TO KIND OF ASSUMED BY INDORSER

Section 36, NIL. When indorsement restrictive. An indorsement is restrictive which either: (a) Prohibits the further negotiation of the instrument; or (b) Constitutes the indorsee the agent of the indorser; or (c) Vests the title in the indorsee in trust for or to the use of some other persons. But the mere absence of words implying power to negotiate does not make an indorsement restrictive.

Section 38, NIL. Qualified indorsement. - A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser's signature the words "without recourse" or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument. (1) Qualified (a) Constitutes indorser as mere assignor of title (b) Made by adding the words “without recourse” (Sec. 38, NIL). (c) But this does not mean that the transferee only has the rights of an assignee; transfer remains a negotiation and transferee can still be a holder capable of acquiring a title free from defenses of prior parties. (d) Effects: (i) Relieves the qualified indorser of his liability to pay the instrument should the maker be unable to pay (ii) The qualified indorser does not guarantee the solvency of the maker, but merely his legal title to the instrument (iii) The instrument may still be further negotiated; no effect on its negotiability (2) Non-qualified

Section 37, NIL. Effect of restrictive indorsement; rights of indorsee. - A restrictive indorsement confers upon the indorsee the right: (a) to receive payment of the instrument; (b) to bring any action thereon that the indorser could bring; (c) to transfer his rights as such indorsee, where the form of the indorsement authorizes him to do so. But all subsequent indorsees acquire only the title of the first indorsee under the restrictive indorsement. (1) Restrictive – Such indorsement either: (a) Prohibits further negotiation of instrument (b) Constitutes indorsee as agent of indorser (c) Vests title in indorsee in trust for another (Sec 36, NIL)

E. RIGHTS INDORSEE

OF

LIABILITY

RESTRICTIVE

(a) Receive payment (b) Bring any action thereon that the indorser could bring. 30

UP LAW BOC


MERCANTILE LAW

G. AS TO PRESENCE/ABSENCE OF EXPRESS LIMITATIONS

IX. Rights of the Holder

Section 39, NIL. Conditional indorsement. Where an indorsement is conditional, the party required to pay the instrument may disregard the condition and make payment to the indorsee or his transferee whether the condition has been fulfilled or not. But any person to whom an instrument so indorsed is negotiated will hold the same, or the proceeds thereof, subject to the rights of the person indorsing conditionally.

A. DEFINITION OF A HOLDER Section 191, NIL. Definition and meaning of terms. - In this Act, unless the contract otherwise requires: x---x "Holder" means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof; A holder is a payee or indorsee of a bill or note who is in possession of it, or the bearer thereof (Sec. 191, NIL). He has the following rights (Sec. 51, NIL):

(1) Conditional (a) Additional condition annexed to indorser’s liability; such condition must be expressed (b) Where an indorsement is conditional, a party required to pay the instrument may disregard the condition, and make payment to the indorsee or his transferee, whether condition has been fulfilled or not. (c) But any person to whom an instrument so indorsed is negotiated, will hold the same, or the proceeds thereof, subject to the rights of the person indorsing conditionally. (Sec. 39, NIL) (2) Unconditional

(1) To sue on the instrument in his own name  Unindorsed intruments: Section. 49, NIL. Transfer without indorsement; effect of. Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires in addition, the right to have the indorsement of the transferor. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made.  Note: This section applies only to an instrument payable to the order of the transferor. This cannot apply to bearer instruments.  Cancellation of indorsement: Section 48, NIL. Striking out indorsement. The holder may at any time strike out any indorsement which is not necessary to his title. The indorser whose indorsement is struck out, and all indorsers subsequent to him, are thereby relieved from liability on the instrument.  Indorsement by agent: Section 20, NIL. Liability of person signing as agent, and so forth. Where the instrument contains or a

H. OTHER KINDS OF INDORSEMENT (1) Absolute – One by which the indorser binds himself to pay, upon no other condition than the failure of prior parties to do so, and of due notice to him of such failure (2) Joint – Where instrument payable to the order of two or more payees or indorsees not partners, all must indorse, unless the one indorsing has authority to endorse for the others (Sec. 41, NIL) (3) Irregular – Where a person, not otherwise a party to the instrument, places thereon his signature in blank before delivery, he is liable as indorser 31

UP LAW BOC


person adds to his signature words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability. (2) Payment in due course to the holder discharges instrument

MERCANTILE LAW

the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course. But the last-mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.

B.1. WHO ARE HDCS: (1) Holder in due course (HDC) under Sec. 52, NIL (2) HDC under Sec. 58, NIL: A holder who DERIVES title to the instrument through a HDC has all the rights of the latter even though he himself satisfies none of the requirements of due course holding HDC under Sec. 59, NIL (presumption): Every holder is deemed prima facie to be a holder in due course

B. HOLDER IN DUE COURSE (HDC) Section 52, NIL. What constitutes a holder in due course. - A holder in due course is a holder who has taken the instrument under the following conditions: (a) That it is complete and regular upon its face; (b) That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact; (c) That he took it in good faith and for value; (d) That at the time it was negotiated to him, he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

Sec. 191 of the NIL defines holder as the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof. The word “holder” in the first clause of Sec. 52 and in the second subsection thereof may be replaced by the definition in Sec. 191 so as to read a holder in due course as a payee or an indorsee in possession, etc. (De Ocampo v. Gatchalian, 1961)

Section 58, NIL. When subject to original defense. - In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter.

B.2. THE SIGNIFICANCE OF DUE COURSE HOLDING  A holder in due course can acquire a better title than his predecessors because he takes the instrument free from any defect of title of prior parties. He is furthermore free from defenses available to prior parties among themselves (Campos).  A holder not in due course, on the other hand, takes the instrument subject to all defenses because he is treated as a transferee of a non-negotiable paper. Real defenses, however, which attach to the instrument itself would be available even against a holder in due course (Campos).

Section 59, NIL. Who is deemed holder in due course. - Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated 32

UP LAW BOC


MERCANTILE LAW

B.4. REQUISITES OF A HOLDER IN DUE COURSE (SEC. 52, NIL)

 When is the question of whether a holder is a holder in due course relevant. It should be kept in mind that the question of whether a holder is a holder in due course or not is signifant only when there is an existing defense between prior parties (Campos).

Sec. 52, NIL. What constitutes a holder in due course. A holder in due course is a holder who has taken the instrument under the following conditions: (a) That it is complete and regular upon its face; (b) That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact; (c) That he took it in good faith and for value; (d) That at the time it was negotiated to him, he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

B.3. RIGHTS OF A HOLDER IN DUE COURSE Section 51, NIL. Right of holder to sue; payment. - The holder of a negotiable instrument may to sue thereon in his own name; and payment to him in due course discharges the instrument. Section 57, NIL. Rights of holder in due course. A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.

That the instrument is complete and regular upon its face (1) It is incomplete when it is wanting in any material particular or particular proper to be inserted in a negotiable instrument without which the same will not be complete.

Section 58, NIL. When subject to original defense. - In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter.

B.4.A. MATERIAL PARTICULARS Section 125, NIL. What constitutes a material alteration. - Any alteration which changes: (a) Date (b) Sum payable, either for principal or interest (c) Time or place of payment (d) Number or relations of the parties (e) Medium or currency in which payment is to be made (f) Or which adds a place of payment where no place of payment is specified (g) Or any other change or addition which alters the effect of the instrument in any respect

(1) To sue on the instrument in his own name (Sec. 51, NIL) (2) To receive payment on the instrument (Sec. 51, NIL) (3) Holds instrument free of any defect of title of prior parties (Sec. 57, NIL) (4) Free from defenses available to prior parties among themselves (Sec. 57, NIL) (5) May enforce payment of instrument for full amount, against all parties liable (Sec. 57, NIL)

The items enumerated under Sec. 125 of the NIL are material particulars.

33

UP LAW BOC


(2) That he became the holder of it before it was overdue and without notice that it had been previously dishonored, if such was the fact

MERCANTILE LAW

“Value” (1) Any consideration sufficient to support a simple contract (Sec. 25, NIL). (2) An antecedent or pre-existing debt constitutes value, whether the instrument is payable on demand or at a future time (Sec. 25, NIL)

Section 53, NIL. When person not deemed holder in due course. - Where an instrument payable on demand is negotiated on an unreasonable length of time after its issue, the holder is not deemed a holder in due course.

“Holder for value” (1) Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who become such prior to that time (Sec. 26, NIL); and (2) Where the holder has a lien on the instrument, he is deemed a HFV to the extent of his lien (Sec .27, NIL). (3) The holder is a holder for value only to the extent that the consideration agreed upon has been paid, delivered, or performed. (Sundiang and Aquino)

“OVERDUE” – THE FOLLOWING CANNOT BE HDCS: (a) A holder who became such after the date of maturity of the instrument (instrument is overdue; Sec. 53, NIL); (b) In case of demand instruments: a holder who negotiates it after an unreasonable length of time after its issue (Sec. 53, NIL) (c) Instruments with fixed maturity but subject to acceleration: ultimate date of maturity is the date of maturity for the purpose of determining whether a purchaser is a HDC (d) Undated instruments: Prima facie presumption that it was negotiated before it was overdue (Sec. 45, NIL)

Presumption: Every negotiable instrument is deemed prima facie issued for valuable consideration; and every person whose signature appears thereon is deemed to have become a party thereto for value (Sec. 24, NIL).

Notes: (1) An overdue instrument is still negotiable, but it is subject to the defenses (real and personal) existing at the time of the transfer. (2) As to what constitutes a reasonable time, regard is to be had to the nature of the instrument, the usage of trade or business with respect to such instrument, and the facts of the particular case. (Sec. 193, NIL) (3) An instrument is not invalid for the reason only that it is ANTE-DATED OR POSTDATED provided it is not done for an illegal or fraudulent purpose. The person to whom an instrument so dated is delivered acquires the title thereto as of the date of delivery (Sec. 12, NIL).

Such presumption cannot be overcome by the petitioner’s bare denial of receipt of the consideration. (Bayani vs. People, 2004)

“Good faith” Holder must have taken the instrument in good faith and that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. “Actual knowledge” What constitutes notice of defect. To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated

B.4.B. THAT HE TOOK IT IN GOOD FAITH AND FOR VALUE 34

UP LAW BOC


must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. (Sec. 56, NIL)

MERCANTILE LAW

accordance with the particular circumstances of each case (Campos).

“Suspicious circumstances” General rule: A purchaser of an instrument is not required to investigate every suspicious circumstance; failure to investigate such circumstances does not constitute him as being in bad faith or having a notice of defect (Campos).

That at the time it was negotiated to him he had no NOTICE of any infirmity in the instrument or defect in the title of the person negotiating it Section 55, NIL. When title defective. - The title of a person who negotiates an instrument is defective within the meaning of this Act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.

Rationale: The general principle that a purchaser who has knowledge of certain facts is put on inquiry does not operate to its full extent in the law of negotiable instruments. Negotiable instruments are usually issued in pursuance of commercial transactions where time is of the essence. To require investigation of every suspicious circumstance would hamper their function of facilitating exchange; thus negligence in tracking down a suspicious circumstance which would put a prudent man on inquiry is not of itself sufficient to prevent recovery (Campos).

Section 56, NIL. What constitutes notice of defect. - To constitutes notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.

Exceptions: (a) Suspicious circumstances TOGETHER WITH other circumstances, may be admitted as evidence of bad faith. (b) Where the suspicious circumstances are so cogent and obvious

B.4.C. WHAT CONSTITUTES NOTICE OF DEFECT OR BAD FAITH Under Section 56, in order to constitute notice, the holder must: (a) have ACTUAL and not merely constructive knowledge of the defect; OR (b) have acted in bad faith (Campos)

A check with 2 parallel lines in the upper left hand corner means that it could only be deposited and may not be converted to cash. Consequently, such circumstance should put the payee on inquiry and upon him devolves the duty to ascertain the holders’ title to the check or the nature of his possession. Failing in this respect, the payee is declared guilty of gross negligence amounting to legal absence of good faith and as such the consensus of authority is to the effect that the holder of the check is not

Gross negligence IN ITSELF would not constitute notice since it is not the equivalent of actual knowledge nor of bad faith (Campos). The question of good faith or bad faith is a question of fact which must be determined in

35

UP LAW BOC


a holder in good faith. (State Investment House vs. IAC, 1989)

MERCANTILE LAW

(2) But the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title. (Sec. 59, NIL)

“Defective title” Title is NOT defective when at the time it was negotiated to him, he had NO notice of: (1) any infirmity in instrument (2) any defect in title of person negotiating

C.2. HOLDER NOT IN DUE COURSE (1) One who became a holder of an instrument without any, some or all of the requisites under Sec. 52 of the NIL (2) With respect to demand instruments, if it is negotiated an unreasonable length of time after its issue, the holder is deemed not a holder in due course. (Sec. 53, NIL) (3) Rights of a holder not in due course (Sec. 51, NIL): (a) To sue on the instrument under in his own name (b) To enforce the instrument

Title is DEFECTIVE when (Sec. 55, NIL) (1) instrument/signature obtained by fraud, duress, force or fear or other unlawful means OR for an illegal consideration; or (2) instrument is negotiated in breach of faith, or fraudulent circumstances NOTICE of infirmity or defect – actual knowledge of the infirmity or defect OR knowledge of such facts that his action in taking the instrument amounted to bad faith (Sec.56, NIL)

The only disadvantage of a holder who is not a holder in due course is that the negotiable instrument is subject to defenses as if it were non-negotiable. [Chan Wan vs. Tan Kim (1960)]

RIGHT of a transferee who receives NOTICE of any infirmity or defect BEFORE he has PAID THE FULL amount for the instrument. He will be deemed a HDC only to the extent of the amount therefore paid by him (Sec.54, NIL)

X. Liabilities of Parties Primary liability: The unconditional promise attaches the moment the maker makes the instrument while the acceptor’s assent to the unconditional order attaches the moment he accepts the instrument. No further act is necessary in order for the liability to accrue. Presentment for payment is all that is necessary.

C. DEFENSES AGAINST THE HOLDER C.1. PRESUMPTION IN FAVOR OF DUE COURSE HOLDING Every holder is deemed prima facie to be a holder in due course (Sec. 59, NIL). (1) BURDEN SHIFTS when it is shown that the title of any person who has negotiated the instrument was defective. Holder MUST then PROVE that he or some person under whom he claims acquired the title as a holder in due course.

A. PARTIES PRIMARILY LIABLE (Sec. 60 and 62) Persons who by the terms of the instrument are absolutely required to pay the same

36

UP LAW BOC


A.1. MAKER (SEC. 60)

MERCANTILE LAW

negativing/limiting his own liability to the holder.

Promises to pay according to the tenor of the instrument (promissory note)

B.2. INDORSERS A.2. ACCEPTOR (SEC. 62)

The following indorsers assume the liability to pay the instrument: (1) General or Unqualified Indorser; and (2) Irregular Indorser

Upon acceptance of the bill of exchange, engages to pay the bill according to the tenor of the acceptance. Unconditionally liable; he is duty-bound to pay the holder at date of maturity, WON holder demands payment from him, and he is not relieved from liability even if the instrument should become overdue due to failure of holder to make such demand.

B.2.A. GENERAL OR INDORSER (SEC. 66)

UNQUALIFIED

Engages that he will pay the amount of the instrument to the holder or to any subsequent indorser who may be compelled to pay the same if the instrument be dishonored upon due presentment and proceedings on dishonor be taken.

Note: Until he accepts the bill of exchange, the drawee assumes no liability to pay the instrument.

Who is a General or Unqualified Indorser? Every person who indorses WITHOUT qualification (Sec. 66)

B. PARTIES SECONDARILY LIABLE Secondary liability: A party secondarily liable is not bound to pay unless the following have been fulfilled: (1) Due presentment or demand to the primary party (2) Dishonor by such party (3) Notice of dishonor to secondary party, and, in cases of foreign bills of exchange, protest of the bill

A person placing his signature upon an instrument other than as a maker, drawer, or acceptor unless he indicates by appropriate words his intention to be bound in some other capacity (Sec. 63). A person, who places his signature on an instrument negotiable by delivery, incurs all the liabilities of an indorser (Sec. 67).

B.1. drawer (sec. 61) (1) Engages that the instrument will be accepted or paid, or both, according to its tenor on due presentment; (2) Engages that he will pay the amount of the instrument to the holder or to any subsequent indorser who may be compelled to pay the same if the instrument be dishonored upon due presentment and proceedings on dishonor be taken,

Note: A qualified indorser does not assume the liability to pay the instrument since he is merely an assignor of the title to the instrument. However, he becomes liable once he breaches a warranty. Who is a qualified indorser? One who is constituted as a mere assignor of the title to the instrument by adding to his signature the words "without recourse" or any words of similar import.

Limiting liability: Drawer may insert in the instrument an express stipulation 37

UP LAW BOC


B.2.B. IRREGULAR INDORSER

MERCANTILE LAW

(2) His then capacity to indorse (Sec. 60)

When a person not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as an indorser, in accordance with these rules: (1) Instrument payable to order of 3rd person: liable to payee and to all subsequent parties (2) Instrument payable to the order of maker/drawer, or payable to bearer: liable to all parties subsequent to maker/drawer (3) Signs for accommodation of payee: liable to all parties subsequent to payee (Sec. 64)

DRAWER’S WARRANTIES (1) The drawer admits the existence of the payee AND (2) His then capacity to endorse

ACCEPTOR’S WARRANTIES (1) As to the drawer, the acceptor admits: (a) His existence (b) Genuineness of his signature (c) Capacity and authority to draw the instrument (2) As to the payee, the acceptor admits: (a) His existence (b) His then capacity to indorse (Sec. 62)

B.2.C. ORDER OF LIABILITY AMONG INDORSERS (SEC. 68) (1) Among themselves: liable prima facie in the order they indorse, but proof of another agreement admissible (2) As to the Holder: Holder may sue any of the indorsers, regardless of order of indorsement (3) Joint payees/indorsees deemed to indorse solidarily

The acceptor is precluded from setting up certain defenses by reason of his warranties like the defense that the drawer is a minor or the signature of the drawer is forged. (Aquino) GENERAL INDORSER’S WARRANTIES (1) That the instrument is genuine in and in all respects what it purports to be (2) That he has a good title to it (3) That all prior parties had capacity to contract (4) That the instrument is, at the time of his indorsement, valid and subsisting (Sec. 66)

XI. Warranties The primary or secondary liability of the parties should be distinguished from their warranties. (1) Primary or secondary liability of the parties makes them liable to pay the sum certain in money stated in the instrument. (2) Warranties are affirmations of the fact on the part of the parties that impose no direct obligation to pay in the absence of breach thereof. (Aquino)

These warranties are in favor of all subsequent holders in due course. (Ang Tiong v. Ting, 1968) QUALIFIED INDORSER’S WARRANTIES (1) That the instrument is genuine in and in all respects what it purports to be (2) That he has a good title to it (3) That all prior parties had capacity to contract (4) That he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. (Sec. 68)

In case of breach of warranties, the person who breached the same may either be liable or he may be barred from asserting a particular defense. MAKER’S WARRANTIES (1) The maker admits the existence of the payee AND 38

UP LAW BOC


XII. Presentment for Payment

When NOT necessary: (1) To charge the person primarily liable on the instrument (Sec. 70) (2) To charge the drawer where he has no right to expect or require that the drawee or acceptor will pay the instrument. (Sec. 79) (3) To charge an indorser where the instrument was made or accepted for his accommodation and he has no reason to expect that the instrument will be paid if presented. (Sec. 80) (4) When the bill of exchange has previously been dishonored by non-acceptance and has not been subsequently accepted

A. PRESENTMENT MEANS (1) The production of a Bill of Exchange to the drawer or acceptor for payment; or (2) The production of a Promissory Note to the party liable for payment.

B. DATE AND PRESENTMENT

TIME

MERCANTILE LAW

OF

(1) Bearing fixed maturity/not payable on demand – on the day it falls due if day of maturity falls on Sunday or a holiday, the instruments falling due or becoming payable on Saturday are to be presented for payment on the next succeeding business day (Sec. 85) (2) Payable on demand – within a reasonable time after its issue, iv at the option of the holder, may be presented for payment before twelve o'clock noon on Saturday when that entire day is not a holiday (Sec. 85) (3) Demand bill of exchange – within a reasonable time after the last negotiation. (Sec. 71)

D. PARTIES TO WHOM PRESENTMENT FOR PAYMENT SHOULD BE MADE General rule: Presentment for payment must be made to the person primarily liable on the instrument or if he is absent or inaccessible, to any person found at the place where the presentment is made. Exceptions: Where the person primarily liable is/are: (1) Dead – presentment for payment must be made to his personal representative (2) Partners – presentment for payment may be made to any one of them, even though there has been a dissolution of the firm (3) Several persons, not partners (joint debtors) – presentment for payment must be made to them all

Note: Although presentment was made within a reasonable time from last negotiation, it may have been made within an unreasonable time from issuance. Thus holder may still not be a holder in due course under Sec. 71.

C. NECESSITY OF PRESENTMENT FOR PAYMENT

E. DISPENSATION WITH PRESENTMENT FOR PAYMENT

When necessary: In order to charge the drawer and indorsers (Sec. 70)

When Excused: (1) Where, after the exercise of reasonable diligence, presentment cannot be made; (2) Where the drawee is a fictitious person; (3) By waiver of presentment, express or implied. (Sec. 82) 39

UP LAW BOC


MERCANTILE LAW

discharged. Notice may be given to the party himself or to his agent.

F. DISHONOR BY NON-PAYMENT The instrument is dishonored by non-payment when: (1) It is duly presented for payment and payment is refused or cannot be obtained; or (2) Presentment is excused and the instrument is overdue and unpaid (Sec. 83).

B. WHEN GIVEN Notice may be given as soon as the instrument is dishonored (Sec. 102)

C. WHEN NOT NECESSARY TO GIVE TO DRAWER

In case of waiver of protest, whether in the case of a foreign bill of exchange or other NI – deemed to be a waiver not only of a formal protest but also of presentment and notice of dishonor (Sec. 111)

Notice of dishonor is not required to be given to the drawer in any of the following cases: (1) Drawer and drawee are the same; (2) Drawee is a fictitious person or not having the capacity to contract; (3) Drawer is the person to whom the instrument is presented for payment; (4) The drawer has no right to expect or require that the drawee or acceptor swill honor the instrument; (5) Where the drawer has countermanded payment (Sec. 114)

XIII. Notice of Dishonor Notice given by holder or his agent to party or parties secondarily liable that the instrument was dishonored by: (1) Non-acceptance by the drawee of a bill; or (2) Non-payment by the acceptor of a bill; or (3) Non-payment by the maker of a note (Sec. 89)

D. WHEN NOT NECESSARY TO GIVE TO INDORSER

Requisites: (1) Given by holder or his agent, or by any party who may be compelled by the holder to pay (Sec. 90) (2) Given to secondary party or his agent (Sec. 97) (3) Given within the periods provided by law (Sec. 102) (4) Given at the proper place (Secs. 103 and 104)

Notice of dishonor is not required to be given to an indorser in the following cases: (1) Drawee is a fictitious person or does not have the capacity to contract, and indorser was aware of that fact at the time he indorsed the instrument; (2) Indorser is the person to whom the instrument is presented for payment; (3) Instrument was made or accepted for his accommodation. (Sec. 115)

A. PARTIES TO BE NOTIFIED

E. WHO WILL BENEFIT

(1) Non-acceptance (bill) – to persons secondarily liable, namely, the drawer and indorsers as the case may be (2) Non-payment (both bill and note) – to indorsers

If given by or on behalf of the holder (Sec. 92): (1) All subsequent holders (2) All prior parties (as to holder) who have a right of recourse against the party to whom it is given.

Note: Notice must be given to persons secondarily liable. Otherwise, such parties are 40

UP LAW BOC


If given by the indorser (Sec. 93): (1) Holder (2) All parties subsequent to the party to whom notice is given.

MERCANTILE LAW

I. WAIVER  Notice of dishonor may be waived either before the time of giving notice has arrived or after the omission to give due notice, and the waiver may be expressed or implied. (Sec. 109)  Where the waiver is embodied in the instrument itself, it is binding upon all parties; but, where it is written above the signature of an indorser, it binds him only. (Sec. 110)

F. PARTIES WHO MAY GIVE NOTICE OF DISHONOR The notice may be given by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who, upon taking it up, would have a right to reimbursement from the party to whom the notice is given. (Sec. 90)

J. DISPENSATION WITH NOTICE (1) When party to be notified knows about the dishonor, actually or constructively (Secs. 114-117) (2) If waived (Sec. 109) (3) When after due diligence, it cannot be given (Sec. 112).

F.1. WHO SHOULD GIVE (SEC. 90) (1) Holder (2) Agent or representative of holder. (3) Any party who may be compelled to pay like indorsers. (4) Agent of any party who may be compelled.

K. EFFECT OF FAILURE TO GIVE NOTICE

G. EFFECT OF NOTICE

 Failure to give notice to parties secondarily liable discharges such parties  An omission to give notice of dishonor by non-acceptance does not prejudice the rights of a holder in due course subsequent to the omission (Sec. 117)

 Notice of dishonor is required to charge parties secondarily liable.  Upon valid notice of dishonor, immediate right of recourse against the indorser arises. It is as if the indorser becomes primarily liable in the sense that the holder need not claim payment from the person primarily liable (Sundiang and Aquino).

XIV. Discharge of Negotiable Instrument

H. FORM OF NOTICE (SEC. 96) The notice may be: (1) In writing; or (2) Merely oral

Discharge: The release of all parties, whether primary or secondary, from the obligation on the instrument. It renders the instrument without force and effect and, consequently, non-negotiable (De Leon)

The notice may be given in any terms which: (1) Sufficiently identify the instrument; and (2) Indicate that it has been dishonored by non-acceptance or non-payment

A. DISCHARGE INSTRUMENT

OF

NEGOTIABLE

A negotiable instrument is discharged: (1) By payment in due course by or on behalf of the principal debtor;

It may in all cases be given by delivering it personally or through the mails

41

UP LAW BOC


MERCANTILE LAW

(2) By payment in due course by the party accommodated, where the instrument is made or accepted for his accommodation; (3) By the intentional cancellation thereof by the holder; (4) By any other act which will discharge a simple contract for the payment of money; (5) When the principal debtor becomes the holder of the instrument at or after maturity in his own right. (Sec. 119)

D. BY INTENTIONAL CANCELLATION

B. BY PAYMENT IN DUE COURSE (ASKED IN 2000)

E. BY OTHER ACTS THAT DISCHARGE A SIMPLE CONTRACT

 A cancellation made unintentionally or under a mistake or without the authority of the holder, is inoperative.  But where an instrument or any signature thereon appears to have been cancelled, the burden of proof lies on the party who alleges that the cancellation was made unintentionally or under a mistake or without authority. (Sec. 123)

Payment is made in due course when it is made at or after the maturity of the payment to the holder thereof in good faith and without notice that his title is defective. (Sec. 88)

FOR PAYMENT OF MONEY Any other act which discharges a simple contract for payment of money (Art. 1231 of the Civil Code), ex. issuance of a renewal note (novation).

Requisites: (1) Payment must be made at or after maturity. (2) Payment must be made to the holder. (3) Payment must be made in good faith and without notice that holder’s title is defective.

F. BY REACQUISITION OF PRINCIPAL DEBTOR IN HIS OWN RIGHT Principal debtor becomes holder of instrument at or after maturity in his own right

 If payment is made before maturity and the note is negotiated to a HDC, the latter may recover on the instrument.  Payment to one of several payees or indorsees in the alternative discharges the instrument, but payment to one of several joint payees or joint indorsers is not a discharge. The party receiving payment must have been authorized by others to receive payment.

G. BY MATERIAL ALTERATION Material alteration without assent of all parties liable avoids instrument except as against party to alteration and subsequent indorsers (Sec. 124)

H. DISCHARGE OF SECONDARILY LIABLE

PARTIES

GROUNDS UNDER SEC. 120 A person secondarily liable on the instrument is discharged: (1) By any act which discharges the instrument; (2) By the intentional cancellation of his signature by the holder; (3) By the discharge of a prior party; (4) By a valid tender or payment made by a prior party; (5) By a release of the principal debtor unless the holder's right of recourse against the party secondarily liable is expressly

C. BY WHOM MADE: (1) payment in due course by or on behalf of principal debtor (2) payment in due course by party accommodated where party is made/ accepted for accommodation

42

UP LAW BOC


reserved; (6) By any agreement binding upon the holder to extend the time of payment or to postpone the holder's right to enforce the instrument unless made with the assent of the party secondarily liable or unless the right of recourse against such party is expressly reserved. (Sec. 120)

(1) Where it is payable to the order of a third person, and has been paid by the drawer; (2) Where it was made or accepted for accommodation, and has been paid by the party accommodated. (Sec. 121)

J. RENUNCIATION BY HOLDER (SEC. 122)  The holder may expressly renounce his rights against any party to the instrument before, at, or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument.  Renunciation must be in writing unless the instrument is delivered up to the person primarily liable thereon  Renunciation does not affect the rights of an HDC without notice

OTHER GROUNDS (1) Failure to make due presentment (Secs. 70, 144) (2) Failure to give notice of dishonor (3) Certification of check at instance of holder (4) Reacquisition by prior party (5) Where instrument negotiated back to a prior party, such party may reissue and further negotiate, but not entitled to enforce payment against any intervening party to whom he was personally liable (6) Where instrument is paid by party secondarily liable, it is not discharged, but (a) the party so paying it is remitted to his former rights as regard to all prior parties (b) and he may strike out his own and all subsequent indorsements, and again negotiate instrument, except: where it is payable to order of 3rd party and has been paid by drawer or where it’s made/accepted for accommodation and has been paid by party accommodated (7) By taking a qualified acceptance

I. RIGHT OF PARTY DISCHARGED INSTRUMENT

MERCANTILE LAW

XV. Material Alteration A. CONCEPT  Any change in the instrument which affects or changes the liability of the parties in any way.  Any alteration which changes the date, sum payable, time or place of payment, number of relation of the parties, or medium of currency of payment where none is specified or which alters the effect of the instrument in any respect (PNB v. CA, GR No. L-26001, Oct. 21, 1968)  An alteration is said to be material if it alters the effect of the instrument. In other words, a material alteration is one which changes the items which are required to be stated under Sec. 1 of the NIL (ibid.)

WHO

Where the instrument is paid by a party secondarily liable thereon, it is not discharged; but the party so paying it is remitted to his former rights as regards to all prior parties, and he may strike out his own and all subsequent indorsements, and again negotiate the instrument, except: 43

UP LAW BOC


B. CHANGES IN THE FOLLOWING CONSTITUTE MATERIAL ALTERATIONS (SEC. 125):

C. KINDS OF ACCEPTANCE: (1) General – assents without qualification to the order of the drawer (2) Qualified – which in express terms varies the effect of the bill as drawn: (a) Conditional – makes payment by the acceptor dependent on the fulfillment of a condition therein stated (b) Partial – an acceptance to pay part only of the amount for which the bill is drawn. (c) Local – an acceptance to pay only at a particular place. (d) Qualified as to time (e) The acceptance of some one or more of the drawees but not of all. (Sec. 141)

(1) Date (2) Sum payable, either for principal or interest (3) Time or place of payment (4) Number or relations of the parties (5) Medium or currency in which payment is to be made (6) That which adds a place of payment where no place of payment is specified (7) Any other change or addition which alters the effect of the instrument in any respect.

C. EFFECT ALTERATION

OF

MERCANTILE LAW

MATERIAL

D. PROOF OF ACCEPTANCE (SUNDIANG AND AQUINO):

(1) Alteration by a party – Avoids the instrument except as against the party who made, authorized, or assented to the alteration and subsequent indorsers. However, if an altered instrument is negotiated to a HDC, he may enforce payment thereof according to its original tenor regardless of whether the alteration was innocent or fraudulent. (2) the effect is the same as where the alteration was made by a party wherein a HDC can recover on the original tenor of the instrument (Sec. 124).

The written acceptance may be in the instrument itself or in a separate instrument. However, under Sec. 133, “the holder of a bill presenting the same for acceptance may require the acceptance be written on the bill, and, if such request is refused, may treat the bill as dishonored” Effects: When an acceptance is written on a paper than the bill itself, it does not bind the acceptor except in favor of a person to whom it is shown and who, on the faith thereof, receives the bill for value.

XVI. Acceptance

E. MANNER

A. DEFINITION

E.1. EXPRESS ACCEPTANCE

The signification by the drawee of his assent to the order of the drawer (Sec. 132)

Must be in writing and signed by the drawee and must not express that the drawee will perform his promise by any other means than the payment of money. (Sec. 132) If request for a written acceptance is refused, the holder may treat the bill as dishonored (Sec. 133)

B. REQUISITES (SEC. 132): (1) Must be in writing (2) Signed by the drawee (3) Must not express that the drawee will perform his promise by and other means than the payment of money

44

UP LAW BOC


E.2. IMPLIED ACCEPTANCE

MERCANTILE LAW

acceptance, he may treat the bill as dishonored by non-acceptance.

(1) If the drawee refuses to return the instrument within 24 hours after it was delivered for acceptance. (2) If the drawee destroys the same. (3) If the drawee makes an unconditional promise in writing before the instrument is drawn, with respect to every person who, upon the faith thereof, receives the bill for value.

Where a qualified acceptance is taken, the drawers and indorsers are discharged from liability on the bill unless they have expressly or impliedly authorized the holder to take a qualified acceptance, or subsequently assent thereto. When the drawer or indorser receives notice of a qualified acceptance, he must, within a reasonable time, express his dissent to the holder or he will be deemed to have assented thereto.

F. TIME FOR ACCEPTANCE (SEC. 136)  The drawee is allowed twenty-four hours after presentment in which to decide whether or not he will accept the bill.  The acceptance, if given, dates as of the day of presentation.

However, acceptance is presumed to be unqualified or absolute. (Sundiang and Aquino)

G. RULES GOVERNING ACCEPTANCE

XVII. Presentment for Acceptance

Q: What is the implication of payment without acceptance by a drawee? A: Act No. 2031, or the Negotiable Instruments Law (NIL), explicitly provides that the acceptor, by accepting the instrument, engages that he will pay it according to the tenor of his acceptance. This provision applies with equal force in case the drawee pays a bill without having previously accepted it. His actual payment of the amount in the check implies not only his assent to the order of the drawer and a recognition of his corresponding obligation to pay the aforementioned sum, but also, his clear compliance with that obligation. Actual payment by the drawee is greater than his acceptance, which is merely a promise in writing to pay. The payment of a check includes its acceptance. (FEBTC vs. Gold Palace Jewellery Co,, Nachura, 2008)

A. REQUISITES: (1) By the holder, or by some person authorized to receive payment on his behalf; (2) At a reasonable hour on a business day; (3) At a proper place as herein defined; (4) To the person primarily liable on the instrument, or if he is absent or inaccessible, to any person found at the place where the presentment is made. General rule: Presentment for acceptance is not necessary in order to render any party to the bill liable. (Sec. 143, last par.)

B. WHEN PRESENTMENT ACCEPTANCE NECESSARY:

FOR

Presentment for acceptance must be made: (1) Where the bill is payable after sight, or in any other case, where presentment for

Right to unqualified acceptance: The holder may refuse to take a qualified acceptance and if he does not obtain an unqualified 45

UP LAW BOC


acceptance is necessary in order to fix the maturity of the instrument; or (2) Where the bill expressly stipulates that it shall be presented for acceptance; or (3) Where the bill is drawn payable elsewhere than at the residence or place of business of the drawee.(Sec. 143)

(1) By the holder, or by some person authorized to receive payment on his behalf; (2) At a reasonable hour on a business day; (3) At the proper place as herein defined (see Sec. 73); (4) To the person primarily liable on the instrument or if he is absent or inaccessible, to any person found at the place where the presentment is made. (Sec. 72)

Note: It is not necessary to present a check for acceptance because it is not one of those required under Sec. 143.

C. WHEN PRESENTMENT ACCEPTANCE EXCUSED:

Time of maturity: Every negotiable instrument is payable at the time fixed therein without grace. When they day of maturity falls upon Sunday, or a holiday, the instrument is payable on the next succeeding business day. Instruments falling due or becoming payable on Saturday are to be presented for payment on the next succeeding business day, except that instrument payable on demand may, at the option of the holder be presented for payment before twelve o’clock noon on Saturday when that entire day is not a holiday. (Sec. 85)

FOR

Presentment for acceptance is excused and a bill may be treated as dishonored by nonacceptance in either of the following cases: (1) Where the drawee is dead, or has absconded, or is a fictitious person or a person not having capacity to contract by bill. (2) Where, after the exercise of reasonable diligence, presentment cannot be made. (3) Where, although presentment has been irregular, acceptance has been refused on some other ground. (Sec. 148)

D. TIME/PLACE/MANNER PRESENTMENT

MERCANTILE LAW

F. HOW MADE (SEC. 145) In general: (1) By or on behalf of the holder (2) At a reasonable hour (3) On a business day (4) Before the bill is overdue (5) To the drawee or his agent

OF

D.1. WHEN MADE

Where a bill is addressed to 2 or more drawees who are not partners – presentment must be made to them all XPT. One has authority to accept/refuse for all

A bill may be presented for acceptance on any day on which negotiable instruments may be presented for payment under the provisions of Sections 72 and 85 of this Act. When Saturday is not otherwise a holiday, presentment for acceptance may be made before twelve o'clock noon on that day. (Sec. 146)

Where the drawee is dead – presentment may be made to his personal representative Where the drawee has been adjudged a bankrupt or insolvent or has made an assignment for the benefit of creditors – presentment may be made to him or to his trustee or assignee.

E. WHAT CONSTITUTES SUFFICIENT PRESENTMENT? Presentment for payment, to be sufficient, must be made: 46

UP LAW BOC


MERCANTILE LAW

There are originally 2 parties in a promissory note: (1) Maker – party who executes the written promise to pay. (2) Payee – party in whose favor the promissory note is made payable.

G. EFFECT OF FAILURE TO MAKE PRESENTMENT (SEC. 144) Failure to make presentment discharges the drawer and all indorsers (Sec. 144).

H. DISHONOR BY NON-ACCEPTANCE

XIX. Checks

When dishonored by non-acceptance: A bill is dishonored by non-acceptance: (1) When it is duly presented for acceptance and such an acceptance as is prescribed by this Act is refused or cannot be obtained; or (2) When presentment for acceptance is excused and the bill is not accepted. (Sec. 149)

A. DEFINITION A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this Act applicable to a bill of exchange payable on demand apply to a check. (Sec. 185)

B. KINDS

Duty of holder: Where a bill is duly presented for acceptance and is not accepted within the prescribed time, the person presenting it must treat the bill as dishonored by non-acceptance or he loses the right of recourse against the drawer and indorsers. (Sec. 150)

(1) Cashier’s Check – One drawn by the cashier of a bank, in the name of the bank against the bank itself payable to a third person. It is a primary obligation of the issuing bank and accepted in advance upon issuance (Tan vs. CA 1994). (2) Manager’s Check – A check drawn by the manager of a bank in the name of the bank itself payable to a third person. It is similar to the cashier’s check as to the effect and use. In issuing a manager’s check, the bank assumed the liabilities of the acceptor under Sec. 62, NIL (Equitable PCI Bank v. Ong (2006) (3) Memorandum Check – A check given by a borrower to a lender for the amount of a short loan, with the understanding that it is not to be presented at the bank, but will be redeemed by the maker himself when the loan falls due and which understanding is evidenced by writing the word “memorandum”, “memo” or “mem” on the check. (4) Certified Check – An agreement whereby the bank against whom a check is drawn

Effect: When a bill is dishonored by nonacceptance, an immediate right of recourse against the drawer and indorsers accrues to the holder and no presentment for payment is necessary. (Sec. 151)

XVIII. Promissory Notes A promissory note is: (1) An unconditional promise in writing (2) Made by one person to another (3) Signed by the maker (4) Engaging to pay on demand, or at a fixed or determinable future time (5) A sum certain in money to order or to bearer (6) Where a note is drawn to the maker's own order, it is not complete until indorsed by him. (Sec. 184)

47

UP LAW BOC


undertakes to pay it at any future time when presented for payment (Sec. 187) (a) Certification is equivalent to acceptance. (Sec. 187) (b) Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability. (Sec. 188) (c) A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check. (Sec. 189) (5) Crossed Check – The NIL is silent with respect to crossed checks, although the Code of Commerce makes reference to such instruments.

MERCANTILE LAW

C. EFFECTS (1) The check may not be encashed; it may only be deposited with the bank; (2) The check may be negotiated only once to a person who has an account with the bank; and (3) It serves as a warning to a holder that the check has been issued for a definite purpose. (Bataan Cigar vs. CA, 1994)

D. PRESENTMENT FOR PAYMENT A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank. The bank is not liable to the holder, unless and until it accepts or certifies the check. (Sec. 189)

D.1. TIME When to present? A check must be presented for payment within reasonable time after its issue.

Article 541 of the Code of Commerce states: “The maker or any legal holder of a check shall be entitled to indicate therein that it be paid to a certain banker or institution, which he shall do by writing across the face the name of said banker or institution, or only the words ‛and company.”

F. EFFECT OF DELAY The drawer will be discharged from liability thereon to the extent of the loss caused by the delay. (Sec. 186) Certification of checks: An agreement whereby the bank against whom a check is drawn, undertakes to pay it at any future time when presented for payment

Under usual practice, crossing a check is done by placing two parallel lines diagonally on the left top portion of the check (State Investment House vs. IAC, 1989).

Effects: (1) Equivalent to acceptance (Sec. 187) and is the operative act that makes banks liable (2) Assignment of the funds of the drawer in the hands of the drawee (Sec. 189) (3) If obtained by the holder, discharges the persons secondarily liable thereon (Sec. 188)

TYPES: SPECIAL AND GENERAL The crossing may be special wherein between the two parallel lines is written the name of a bank or a business institution, in which case the drawee should pay only with the intervention of that bank or company, or crossing may be general wherein between two parallel diagonal lines are written the words "and Co." or none at all as in the case at bar, in which case the drawee should not encash the same but merely accept the same for deposit (supra).

Refusal of drawee bank to certify: The holder has no action against the bank but he has a right of action against the drawer. The drawer in turn has right of action against the bank based on the original contact of deposit between them. 48

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

MERCANTILE LAW

INSURANCE CODE

49

UP LAW BOC

INSURANCE CODE

I. CONCEPT OF INSURANCE

MERCANTILE LAW

A contingent event is one that is not certain to take place. An unknown event is one which is certain to happen, but the time of its happening is not known. A past event may be a designated event only in cases where it has happened already but the parties do not know about it, e.g., prior loss of a ship at sea (applicable only to marine insurance).

On August 15, 2013, RA 10607 was signed into law. It is a restatement of the Insurance Code (PD 612), with amendments. While RA 10607 restated the whole law, most of the amendments touch only the administrative portion of the Code, and very little on the substantive portion.

A.2. FORM A policy of insurance is different from the contract of insurance. The policy is the formal written instrument evidencing the contract of insurance entered into between the insured and the insurer. On the other hand, there is no particular form required for a contract of insurance.

The section numbers pertain to RA 10607.

A. CONTRACT OF INSURANCE Sec. 2(a). A contract of insurance is an agreement whereby one undertakes for a consideration to indemnify another against loss, damage or liability arising from an unknown or contingent event.

Sec. 232. No policy, certificate or contract of insurance shall be issued or delivered within the Philippines unless in the form previously approved by the Commissioner. No application form shall be used with, and no rider, clause, warranty or endorsement shall be attached to, printed or stamped upon such policy, certificate or contract unless the form of such application, rider, clause, warranty or endorsement has been approved by the Commissioner.

A contract of suretyship shall be deemed to be an insurance contract only if made by a surety who or which, as such, is doing an insurance business. A contract of insurance involves public interest. Thus, the business is regulated by the state through the requirement of license or certificate of authority (White Gold Marine Services v. Pioneer (2005)).

A.3. INSURANCE DISTINGUISHED

AND

GAMBLING

A contract of insurance is a contract of indemnity and is not a wagering or gambling contract. It is based on contingency, but it is not a contract of chance for profit.

A.1. DEFINITION Thus, a contract of insurance is: (1) A contract of indemnity; (2) Wherein one undertakes for a consideration; (3) To indemnify another against loss, damage, or liability; (4) Arising from an unknown or contingent event.

In a wagering contract, the parties contemplate gain through mere chance; in a contract of insurance, the parties seek to distribute possible loss by reason of mischance [Carale, The Philippine Insurance Law (2014)]

50

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

the law firm promises to represent such clients in all suits for or against them are not insurance contracts; (2) A contract by which a corporation, in consideration of a stipulated amount, agrees at its own expense to defend a physician against all suits for damages for malpractice is one of insurance, and the corporation will be deemed as engaged in the business of insurance.

B. DOING OR TRANSACTING INSURANCE BUSINESS Sec. 2(b). The term “doing an insurance business or transacting an insurance business” includes: (1) Making or proposing to make, as insurer, any insurance contract; (2) Making or proposing to make, as surety, any contract of suretyship as a vocation and not as merely incidental to any other legitimate business or activity of the surety; (3) Doing any kind of business, including a reinsurance business, specifically recognized as constituting the doing of an insurance business within the meaning of the Insurance Code; (4) Doing or proposing to do any business in substance equivalent to any of the foregoing in a manner designed to evade the provisions of the Insurance Code. In the application of the provisions of this Code, the fact that no profit is derived from the making of insurance contracts, agreements or transactions or that no separate or direct consideration is received therefor, shall not be deemed conclusive to show that the making thereof does not constitute the doing or transacting of an insurance business

C. GOVERNING LAW The Insurance Code primarily governs insurance contracts, unless there is a special law which specifically govern (e.g., insurance contract under the RA 1161 or Social Security Act), in which case, the Insurance Code governs subsidiarily. Matters not expressly provided for in the Insurance Code and special laws are regulated by the Civil Code.

D. BANCASSURANCE RA 10607 introduced provisions governing bancassurance. Sec. 375. The term bancassurance shall mean the presentation and sale to bank customers by an insurance company of its insurance products within the premises of the head office of such bank duly licensed by the Bangko Sentral ng Pilipinas or any of its branches under such rules and regulations which the Commissioner and the Bangko Sentral ng Pilipinas may promulgate.

General rule: An insurance business consists in undertaking, for a consideration, to indemnify another against loss, damage or liability arising from an unknown or contingent event. Exception: Those not formally designated as insurance businesses but are deemed “doing or transacting an insurance business” as listed in Sec. 2(b).

To engage in bancassurance arrangement, a bank is not required to have equity ownership of the insurance company. No insurance company shall enter into a bancassurance arrangement unless it possesses all the requirements as may be prescribed by the Commissioner and the Bangko Sentral ng Pilipinas.

Philippine Health Care Providers Inc. v. CIR (2009) has stated that: (1) Contracts of law firm with clients whereby in consideration of periodical payments, 51

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

II. ELEMENTS OF AN INSURANCE CONTRACT

No insurance product, whether life or non-life, shall be issued or delivered pursuant to a Bancassurance arrangement, unless in the form previously approved by the Commissioner. Sec. 376. Personnel tasked to present and sell insurance products within the bank premises shall be duly licensed by the Commissioner and shall be subject to the rules and regulations of this Act.

A. IN GENERAL (1) Subject matter – what the insured has an insurable interest in; (2) Cause – event or peril insured against; (3) Risk of loss or damage being assured by the Insurer (4) Consideration – premium payments paid by the insured (5) Risk-Distributing Scheme – distribute and transfer by the insurer of risk of loss, damage or liability among persons having similar risks; (6) A Meeting of Minds of the parties upon all the foregoing essentials.

E. PRE-NEED PLANS RA 9829 (Pre- Need Code), Sec. 4(B). Pre-need plans are contracts, agreements, deeds or plans for the benefit of the planholders which provide for the performance of future services, payment of monetary considerations or delivery of other benefits at the time of actual need or agreed maturity date, as specified therein, in exchange for cash or installment amounts with or without interest or insurance coverage and includes life, pension, education, interment and other plans, instruments, contracts or deeds.

B. SUBJECT MATTER The insured must have an insurable interest in the subject matter of the insurance contract or else, it shall be void [Sec. 25] Insurable interest is the interest which the law requires the owner of an insurance policy to have in the person or thing insured.

Pre-need plans are governed by the Pre-Need Code. They are not considered as insurance contracts because 1) Pre-need plans can have insurance coverage, implying that they are separate contracts 2) Pre-need plans do not involve unknown or contingent events but events certain to happen at a certain time.

C. CAUSE AND RISK OF LOSS OR DAMAGE Cause refers to an event or peril insured against. Peril is the contingent or unknown event which may cause a loss. Its existence creates a risk and its occurrence results in loss. The event or peril insured against must be such that its happening will: (1) Damnify or cause loss to a person having insurable interest; or (2) Create liability against him.

However, all Pre-need plans are under the primary and exclusive power supervision and regulation of the Insurance Commission [Sec. 5, RA 982]. In addition, the Insurance Commissioner shall have the primary and exclusive power to adjudicate any and all claims involving pre-need plans. If the amount of benefits does not exceed P100,000, which decision shall be final and executory (Sec. 58(a), Pre-Need Code). 52

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

The insured or the person in whose favor the contract is operative and whose loss is the occasion for the payment of the insurance proceeds by the insurer

D. CONSIDERATION An insurance premium is the agreed price for assuming and carrying the risk. It is the consideration paid to the insurer for undertaking to indemnify the insured against a designated peril. It is based on probability of loss and extent of liability. Premiums are difference from assessments. An assessment, in insurance law, is a sum specifically levied by mutual insurance companies or associations, upon a fixed and definite plan, to pay losses and expenses. While premiums are levied and paid to meet anticipated loss, assessments are collected to meet actual loss.

The insured is not always the person whom the proceeds are paid. Such person is the beneficiary.

III. CHARACTERISTICS OF AN INSURANCE CONTRACT

E. RISK-DISTRIBUTING SCHEME

A. IN GENERAL

Insurance contracts serve to distribute the risk of economic loss, damage or liability among as many as possible of those who are subject to the same kind of risk. The payment of premiums by all will inure to a general fund, out of which payment will be made for any one who has suffered an economic loss. Hence, each member contributes to a small degree toward compensation for losses suffered by any member of the group.

An insurance contract is: (1) Consensual; (2) Voluntary; (3) Aleatory; (4) Executory and unilateral, but synallagmatic; (5) Conditional; (6) Contract of indemnity; (7) Contract of adhesion; (8) Personal contract; (9) Property; (10) Uberrimae fides contract (utmost good faith).

The unknown event may be past or future. Even if the proximate cause of the loss is a fortuitous event, the insurer may still be liable if it is the event or peril insured against [De Leon, The Insurance Code of the Philippines Annotated (2010)]

B. CONSENSUAL It is perfected by the meeting of the minds of the parties. There must be concurrence of offer and acceptance. Unless otherwise stipulated, the policy is not essential to the existence of the contract. It merely evidences the terms and conditions thereof [Campos, Insurance (1983)]

F. MEETING OF THE MINDS The two parties to a contract of insurance whose minds need to meet regarding the essential elements are:

C. VOLUNTARY

The insurer or the party who assumes or accepts the risk of loss and undertakes for consideration to indemnify the insured or to pay a certain lump sum on the happening of the event or peril insured against, and

General rule: It is voluntary in the sense that it is not compulsory and the parties are free to incorporate such terms and conditions they may deem convenient provided they are not 53

UP LAW BOC

INSURANCE CODE

contrary to law, morals, good customs, public order, or public policy.

MERCANTILE LAW

becomes liable to pay the insured. However, many other conditions are usually required (such as payments of premium or performance of other act) as precedent to the right of the insured to claim benefit under the insurance.

Exceptions: Insurance contracts particularly liability insurance, may be required by law in certain instances: For motor vehicles (Compulsory Motor Vehicle Liability Insurance, Sections 386-402); For employees (Compulsory Coverage in State Insurance Fund, Articles 168-184, Labor Code); As a condition to granting a license to conduct business or calling affecting the public safety or welfare (De Leon (2010)). Social Insurance for members of the Government Service Insurance System (GSIS) and for the employees of the private sector covered by the Social Security System (SSS).

G. CONTRACT OF INDEMNITY (FOR NON-LIFE INSURANCE) The insured who has insurable interest over the property is only entitled to recover the amount of actual loss sustained. The burden is upon him to establish the amount of such loss. General rule: This applies only to property insurance. An insurance contingent on the life of a person is not an indemnity contract because the value of a life is immeasurable.

D. ALEATORY

Exception: However, where the basis of the insurable interest of the policy owner on the life of the insured is a commercial relationship (e.g., creditor-debtor, mortgagor/guarantormortgagee, supporter and supportee), then such contract is an indemnity contract.

It is aleatory because it depends upon some contingent event. The obligation of the insurer to pay depends on the happening of an event which is uncertain, or though certain, is to occur at an indeterminate time (Article 2010, Civil Code).

H. CONTRACT OF ADHESION (FINE PRINT RULE)

E. EXECUTORY AND UNILATERAL BUT SYNALLAGMATIC

Insurance contracts are already presented to the insured in its printed form on a “take it or leave it” basis. What is needed only is the adhesion of the insured for the contract to be made. Such contracts of adhesion are valid. However, ambiguity in them shall be interpreted liberally in favor of the insured and strictly against the insurer who prepared the same.

Once the insured pays the premium, the contract already takes effect. After the payment of premiums, the insurance imposes a unilateral obligation on the insurer who promise to indemnify in case of loss. It is also synallagmatic and reciprocal such that even if the contingent event or designated peril does not occur, the insurer has still provided protection against the risk for the period covered by the insurance contract.

I. PERSONAL CONTRACT The contract of insurance is basically between the insurer and the insured. The insured cannot assign, before the happening of the loss, his rights under a property policy to others without the consent of the insurer (Sections 20, 58, and 83).

F. CONDITIONAL It is conditional because it is subject to conditions, primarily the happening of the event insured against, before the insurer 54

UP LAW BOC

INSURANCE CODE

Property insurance is personal in the sense that it is the damage to the personal interest not the property that is being reimbursed.

MERCANTILE LAW

appertaining to or in connection with any and all risks or perils of navigation, transit or transportation, or while being assembled, packed, crated, baled, compressed or similarly prepared for shipment or while awaiting shipment, or during any delays, storage, transhipment, or reshipment incident thereto, including war risks, marine builder’s risks, and all personal property floater risks; (b) Person or property in connection with or appertaining to a marine, inland marine, transit or transportation insurance, including liability for loss of or damage arising out of or in connection with the construction, repair, operation, maintenance or use of the subject matter of such insurance (but not including life insurance or surety bonds nor insurance against loss by reason of bodily injury to any person arising out of ownership, maintenance, or use of automobiles); (c) Precious stones, jewels, jewelry, precious metals, whether in course of transportation or otherwise; and (d) Bridges, tunnels and other instrumentalities of transportation and communication (excluding buildings, their furniture and furnishings, fixed contents and supplies held in storage); piers, wharves, docks and slips, and other aids to navigation and transportation, including dry docks and marine railways, dams and appurtenant facilities for the control of waterways. (2) Marine protection and indemnity insurance, meaning insurance against, or against legal liability of the insured for loss, damage, or expense incident to ownership, operation, chartering, maintenance, use, repair, or construction of any vessel, craft

J. PROPERTY (FOR LIFE INSURANCE) Life insurance policies, unlike property insurance, are generally assignable or transferrable (Section 81) as they are in the nature of property.

K. UBERRIMAE FIDES CONTRACT Each party is required to deal with each other in utmost good faith and disclose conditions affecting the risk, of which he is aware, or any material fact which the applicant knows and those which he ought to know. Violation of this duty gives the aggrieved party the right to rescind the contract. Where the aggrieved party is the insured, the bad faith of the insurer will preclude it from denying liability on the policy based on breach of warranty (Campos (1983)).

IV. CLASSES A. MARINE INSURANCE A.1. DEFINITION Marine insurance is a type of transportation insurance which is concerned with the perils of property in, or incidental to, transit as opposed to property perils at a generally fixed location. Sec. 101. Marine insurance includes: (1) Insurance against loss of or damage to: (a) Vessels, craft, aircraft, vehicles, goods, freights, cargoes, merchandise, effects, disbursements, profits, moneys, securities, choses in action, instruments of debts, valuable papers, bottomry, and respondentia interests and all other kinds of property and interests therein, in respect to, 55

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

transported and the lender is repaid only if the cargo arrives safely at its destination.

or instrumentality in use of ocean or inland waterways, including liability of the insured for personal injury, illness or death or for loss of or damage to the property of another person

A.4. RISKS A.4.A. PERILS OF THE SEA Ocean marine insurance protects ships at sea and the cargo or freight on such ships from standard “perils of the sea” or “perils of navigation” which includes casualties arising from the violent action of the elements and does not cover ordinary wear and tear or other damage usually incident to the voyage. The mere fact that an injury is due to violence of some marine force does not necessarily bring it within the protection of the policy if such violence was not unusual or unexpected.

A.2. DIVISIONS Marine insurance has two major divisions: (1) Ocean marine insurance insures against risk connected with navigation, to which a ship, cargo, freightage, profits or other insurable interest in movable property, may be exposed during a certain voyage or a fixed period of time. Its scope includes: (a) Ships or hulls; (b) Goods or cargoes; (c) Earnings such as freight, passage money, commissions, or profits; and (d) Liability (protection and indemnity insurance). (2) Inland marine insurance covers the land or over the land transportation perils of property shipped by railroads, motor trucks, airplanes, and other means of transportation. It also covers risks of lake, river or other inland waterway transportation and other waterborne perils outside those covered by ocean marine insurance.

Perils of the sea or perils of navigation include only those casualties due to the unusual violence or extraordinary causes connected with navigation. It has been said to include only such losses as are of extraordinary nature or arise from some overwhelming power which cannot be guarded against by the ordinary exertion of human skill or prudence, as distinguished from the ordinary wear and tear of the voyage and from injuries suffered by the vessel in consequence of her not being unseaworthy [Roque v. IAC ((1985)), Sundiang and Aquino, Reviewer on Commercial Law (2013)]

A.3. BOTTOMRY AND RESPONDENTIA DISTINGUISHED Bottomry loan is a loan that is obtained for the value of the vessel on a voyage and the lender is repaid only if the vessel subject of the loan arrives safely at its destination. The insurable interest of a ship owner on its bottomed boat is the difference between the amount of the loan and the value of the boat. Thus, if the amount of the loan does not cover the total value of the boat, the owner can still insured the boat.

The exception to a “perils of the sea” condition for insurer liability is when there is an “all-risk policy” [Malayan Insurance Corp v. CA (1997)] The phrase also extends to barratry which refers to the willful and intentional act on the part of the master or the crew, in pursuance of some unlawful or fraudulent purpose, without the consent of the owner, and to the prejudice of his interest (e.g., burning the ship, unlawfully selling the cargo).

Respondentia loan is a loan that is obtained as security for the value of the cargo to be 56

UP LAW BOC

INSURANCE CODE

No honest error of judgment or mere negligence, unless criminally gross, can be barratry [Roque v. IAC (1985)]

MERCANTILE LAW

heard of. The length of time which is sufficient to raise this presumption depends on the circumstances of the case.

A.4.B. PERILS OF THE SHIP

Sec. 133. A constructive total loss is one which gives to a person insured a right to abandon, under Sec. 141.

Perils of the ship are those which cause a loss which in the ordinary course of events, results: (1) From the ordinary, natural and inevitable action of the sea; (2) From ordinary wear and tear of the ship; and (3) From the negligent failure of the ship’s owner to provide the vessel with the proper equipment to convey the cargo under ordinary conditions.

Sec. 141. A person insured by a contract of marine insurance may abandon the thing insured, or any particular portion thereof separately valued by the policy, or otherwise separately insured, and recover for a total loss thereof, when the cause of the loss is a peril insured against: (1) If more than three-fourths thereof in value is actually lost, or would have to be expended to recover it from the peril; (2) If it is injured to such an extent as to reduce its value more than three-fourths; (3) If the thing insured is a ship, and the contemplated voyage cannot be lawfully performed without incurring either an expense to the insured of more than threefourths the value of the thing abandoned or a risk which a prudent man would not take under the circumstances; or (4) If the thing insured, being cargo or freightage, and the voyage cannot be performed, nor another ship procured by the master, within a reasonable time and with reasonable diligence, to forward the cargo, without incurring either an expense to the insured of more than three-fourths the value of the thin abandoned or a risk which a prudent man would not take under the circumstances. But freightage cannot in any case be abandoned unless the ship is also abandoned.

In the absence of stipulation, the risks insured against are only perils of the sea [Go Tiaco y Hermanos v. Union Ins. Society of Canton (1919)] However, in an all risk policy, all risks are covered unless expressly excepted. The burden rests on the insurer to prove that the loss is caused by a risk that is excluded [Filipino Merchants Ins. Co. v. CA (1989)]

A.5. LOSS Loss may be total or partial. Total loss may be actual or constructive. Sec. 132. An actual total loss is caused by: (a) A total destruction of the thing insured; (b) The irretrievable loss of the thing by sinking, or by being broken up; (c) Any damage to the thing which renders it valueless to the owner for the purpose for which he held it; (d) Any other event which effectively deprives the owner of the possession, at the port of destination of the thing insured.

Actual total loss is the irretrievable loss of the thing or any damage which renders the thing valueless to the owner for the purpose for which he held it.

Sec. 134. An actual loss may be presumed from the continued absence of a ship without being

57

UP LAW BOC

INSURANCE CODE

Constructive total loss or “technical total loss” is one in which the loss, although not actually total, is of such character that the insured is entitled, if he thinks fit, to treat it as total by abandonment.

MERCANTILE LAW

(3) Abandonment is made by giving notice thereof to the insurer, which may be done orally, or in writing: Provided, That if the notice be done orally, a written notice of such abandonment shall be submitted within seven days from such oral notice [Section 145]; (4) Abandonment must be absolute and total.

As to when a constructive total loss exists, three rules exist: (1) English rule, which states that there is constructive total loss when the subject matter of the insurance, while still existent in specie, is so damaged as not to be worth, when repaired, the cost of the repairs; (2) American rule, which states that there is constructive total loss when it is so damaged that the costs of repairs would exceed one-half of the value of the thing as acquired; also known as the “fifty percent rule;” (3) Philippine rule, which states that the insured may not abandon the thing insured unless the loss or damage is more than three-fourths of its value.

No notice of abandonment is required for recovery of loss in cases of actual total loss. Where the information upon which an abandonment has been made proves incorrect, or the thing insured was so far restored when the abandonment was made that there was in fact no total loss, the abandonment becomes ineffectual. A.6.C. CHARACTERISTICS Thus, a valid abandonment has the following characteristics: (1) There must be an actual relinquishment by the person insured of his interest in the thing insured; (2) There must be a constructive total loss; (3) The abandonment be neither partial nor conditional; (4) It must be made within a reasonable time after receipt of reliable information of the loss; (5) It must be factual; (6) It must be made by giving notice thereof to the insurer which may be done orally or in writing; and (7) The notice of abandonment must be explicit and must specify the particular cause of the abandonment.

A.6. ABANDONMENT A.6.A. DEFINITION Sec. 140. Abandonment, in marine insurance, is the act of the insured by which, after a constructive total loss, he declares the relinquishment to the insurer of his interest in the thing insured. A.6.B. CONDITIONS Aside from the requirement under Section 141 already mentioned: (1) An abandonment must be neither partial nor conditional [Section 142]; (2) An abandonment must be made within a reasonable time after receipt of reliable information of the loss, but where the information is of a doubtful character, the insured is entitled to a reasonable time to make inquiry [Section 142];

A.6.D. EFFECTS (1) An abandonment is equivalent to a transfer by the insured of his interest to the insurer, with all the chances of recovery and indemnity [Section 148];

58

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

(2) If a marine insurer pays for a loss as if it were an actual total loss, he is entitled to whatever may remain of the thing insured, or its proceeds or salvage, as if there had been a formal abandonment (Section 149); (3) Upon an abandonment, acts done in good faith by those who were agents of the insured in respect to the thing insured, subsequent to the loss, are at the risk of the insurer, and for his benefit (Section 150).

(6) It must be successful (i.e., resulted in the saving of the vessel and/or cargo) (7) It must be necessary.

A.7. AVERAGE

B. FIRE INSURANCE

Particular averages include damages and expenses caused to the vessel or her cargo, which have not inured to the common benefit and profit of all the persons interested in the vessel and her cargo. A particular average loss is suffered by and borne alone by the owner of the cargo or of the vessel, as the case must be.

Average is defined as the extraordinary or accidental expense incurred during the voyage for the preservation of the vessel, cargo or both and all the damages to the vessel and cargo from the time it is loaded and the voyage commenced until it ends and the cargo is unloaded.

B.1. DEFINITION Sec. 169. Fire insurance includes insurance against loss by fire, lightning, windstorm, tornado or earthquake and other allied risks, when such risks are covered by extension to fire insurance policies or under separate policies.

There are two kinds of averages: (1) Gross or general averages; and (2) Simple or particular averages.

A fire insurance is a contract of indemnity by which the insurer, for a stipulated premium, agrees to indemnify the insured against loss of, or damage to, a property caused by hostile fire.

Gross averages include damages and expenses which are deliberately caused by the master of the vessel or upon his authority, in order to save the vessel, her cargo, or both at the same time from a real and known risk. This must be borne equally by all of the interests concerned in the venture. To claim general average contributions, the requisites are: (1) There must be a common danger to the vessel or cargo; (2) Part of the vessel or cargo was sacrificed deliberately; (3) The sacrifice must be for the common safety or for the benefit of all; (4) It must be made by the master or upon his authority; (5) It must not be caused by any fault of the party asking contribution;

Fire or other so-called “allied risks” enumerated above must be the proximate cause of the damage or loss. Fire is oxidation which is so rapid as to produce either a flame or a glow. Spontaneous combustion is usually rapid oxidation. Fire is always caused by combustion, but combustion does not always cause fire. The presence of heat, steam, or even smoke is evidence of fire, but taken by itself will not prove the existence of fire. Fire cannot be considered a natural disaster or calamity since it almost always arises from some acts of man or by human means. It cannot be an act of God unless caused by 59

UP LAW BOC

INSURANCE CODE

lightning or a natural disaster or casualty not attributable to human agency [Phil. Home Assurance Corp. v. CA (1996)]

violate its provisions, even though it increases the risk and is the cause of the loss. Thus, in order that the insurer may rescind a contract of fire insurance for any alteration made in the use or condition of the thing insured, the following requisites must be present: (1) The use or condition of the thing is specifically limited or stipulated in the policy; (2) Such use or condition as limited by the policy is altered; (3) The alteration is made without the consent of the insurer; (4) The alteration is made by means within the control of the insured; and (5) The alteration increased the risk.

B.2. RISKS Hostile fire is one that escapes from the place where it was intended to burn and ought to be, or one which remains completely within its proper place but because of the unsuitable materials used to light it, it becomes inherently dangerous and uncontrollable. This kind of fire will make the insurer liable. Friendly fire is one that burns in a place where it is intended to burn and ought to be like fire burning in a stove or a lamp. The risk assumed by the insurer is the loss and damage caused by hostile fire and not friendly fire. Fire may not be considered a natural calamity as it almost always arises from some act of man. It cannot be considered an act of God unless it is caused by lighting or a natural disaster not attributable to human agency. (Phil. Home Assurance v. CA (1996)).

B.3. ALTERATIONS CONDITION

IN

USE

MERCANTILE LAW

Every contract of insurance is made with reference to the conditions surrounding the subject matter of the risk. Thus, there is an implied promise or undertaking on the part of the insured that he will not change the premises or the character of the business carried there so as to increase the risk of loss by fire.

OR

The rule on alteration was strictly applied in the case of Malayan Insurance Co, Ltd v. Pap Co, Ltd (2013): The court held that transferring machinery to another location, despite a provision stating that the machine cannot be transferred without the consent of the insurer is considered an alteration in the condition and location of the thing insured. Hence, Malayan was not liable to Pap.

Sec. 170. An alteration in the use or condition of a thing insured from that to which it is limited by the policy made without the consent of the insurer, by means within the control of the insured, and increasing the risks, entitles an insurer to rescind a contract of fire insurance Sec. 171. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance.

B.4. MEASURE OF INDEMNITY (1) In an open policy, only the expense necessary to replace the thing lost or injured in the condition it was at the time of the injury will be paid;

Sec. 172. A contract of fire insurance is no affected by any act of the insured subsequent to the execution of the policy, which does not 60

UP LAW BOC

INSURANCE CODE

(2) In a valued policy, the parties are bound by the valuation, in the absence of fraud or mistake, similar to marine insurance.

MERCANTILE LAW

Casualty insurance includes all forms of insurance against loss or liability arising from accident or mishap excluding certain types of loss or liability which are not within the scope of other types of insurance such as fire, marine, suretyship and life. It includes, but is not limited to, employer’s liability insurance, workmen’s compensation insurance, public liability insurance, motor vehicle liability insurance, plate glass insurance, burglary and theft insurance, personal accident and health insurance as written by non-life insurance companies, and other substantially similar kinds of insurance (e.g., robbery and theft insurance).

If there is a valuation, the effect shall be similar to a marine insurance policy wherein the valuation is conclusive between the parties in adjusting the loss [Sec. 158] In the absence of express valuation in a fire insurance policy, the insured is only entitled to recover the amount of actual loss sustained and the burden of proof is upon him to establish the amount of such loss by preponderance of evidence. Where the face value of the policy is less than the agreed valuation, then even in case of total loss, the insured can only recover up to the policy’s face value, which is always the maximum limit of the insurer’s liability [Tan Chuco v. Yorkshire Fire & Life Ins. Co. (1909)]

It is governed by the general provisions applicable to all types of insurance plus stipulations in the insurance contract (Fortune Insurance & Surety Co v. CA (1995))

C.2. INTENTIONAL AND ACCIDENTAL INJURY DISTINGUISHED

In an open policy, the actual loss, as determined, will represent the total indemnity due the insured except only that the total indemnity shall not exceed the total value of the policy [Devt. Ins. Corp. v. IAC (1986)]

“Intentional” implies the exercise of the reasoning faculties, consciousness and volition. Where a provision of the policy excludes intentional injury, it is the intention of the person inflicting the injury that is controlling. If the injuries suffered by the insured clearly resulted from the intentional act of the third person, the insurer is relieved from liability as stipulated.

C. CASUALTY INSURANCE C.1. DEFINITION Sec. 176. Casualty insurance is insurance covering loss or liability arising from accident or mishap, excluding certain types of loss which by law or custom are considered as falling exclusively within the scope of other types of insurance such as fire or marine. It includes, but is not limited to, employer’s liability insurance, motor vehicle liability insurance, plate glass insurance, burglary and theft insurance, personal accident and health insurance as written by non-life insurance companies, and other substantially similar kinds of insurance.

“Accidental” means that which happens by chance or fortuitously, without intention or design, which is unexpected, unusual and unforeseen. The terms do not, without qualification, exclude events resulting in damage due to fault, recklessness or negligence of third parties. The concept is not necessarily synonymous with “no fault.” It may be utilized simply to distinguish intentional or malicious acts from negligent or careless acts of man.

61

UP LAW BOC

INSURANCE CODE

C.3. DIVISIONS

MERCANTILE LAW

D. SURETYSHIP

Casualty insurance has two general divisions: liability and indemnity insurance.

Sec. 177. A contract of suretyship is an agreement whereby a party called the surety guarantees the performance by another party called the principal or obligor of an obligation or undertaking in favor of a third party called the obligee. It includes official recognizances, stipulations, bonds or undertakings issued by any company by virtue of and under the provisions of Act. No 536, as amended by 2206.

C.3.A. LIABILITY INSURANCE Under policies of this type, the insurer assumes the obligation to pay the third party in whose favor the liability of the insured arises. The liability of the insurer attaches as soon as the liability of the insured to the third party is established. It covers liability incurred from quasi-delict or criminal negligence but cannot cover deliberate criminal acts. C.3.B. INDEMNITY INSURANCE Under this kind of insurance, no action will lie against the insurer unless brought by the insured for loss actually sustained and paid by him. Liability of the insurer attaches only after the insured has paid his liability to the third party.

It is an agreement whereby a surety guarantees the performance or undertakes to answer, under specified terms and conditions, for the debt, default or miscarriage of the principal or obligor, such as failure to perform, or breach of trust, negligence and the like, in favor of a third party.

C.4. NO ACTION CLAUSE A no action clause is a requirement in a policy of liability insurance which provides that suit and final judgment be first obtained against the insured; that only thereafter can the person injured recover on the policy [Guingon v. Del Monte (1967)]

It shall be deemed as insurance contract if the surety’s main business is that of suretyship, and not where the contract is merely incidental to any other legitimate business or activity of the surety. The contract of a surety is evidenced by a writing called “surety bond” which is essentially a promise to guarantee the obligation of the obligor. In turn, the obligor executes an “indemnity agreement” in favor of the insurer.

But, the no-action clause cannot prevail over the Rules of Court provisions which are aimed at avoiding multiplicity of suits. Parties (the insured and the insurer) may be joined as defendants in a case commenced by the third party claiming under a liability insurance, as the right to relief in respect to the same transactions is alleged to exist [See Section 5, Rule 2 and Section 6, Rule 3]

It is an accessory contract unlike a contract of insurance which is the principal contract itself. The liability of the surety or sureties under a bond is joint and several, or solidary (Sec. 178). This means that upon the default of the principal obligor, the surety becomes primarily liable. Unlike a guarantor, a surety is not entitled to the benefit of exhaustion of the

62

UP LAW BOC

INSURANCE CODE

principal obligor’s assets and assumes a regular party to the undertaking.

MERCANTILE LAW

E.2. TYPES E.2.A. INDIVIDUAL LIFE It is an insurance on human lives and insurance appertaining thereto or connected therewith. It may be made payable on the death of the person, or on his surviving a specified period, or otherwise contingently on the continuation or cessation of life.

It is limited or fixed to the amount of the bond. What is unique to a contract of suretyship is that when the obligee accepts the bond, the bond becomes valid and enforceable whether or not the premium has been paid by the obligor unlike in an insurance contract where payment of premium is necessary for the contract to be valid. If the obligee has not yet accepted, then payment of premium is still necessary for the contract of suretyship to be valid.

Life insurance is normally considered payment upon termination of life, while pure endowment or annuity is payment upon surviving a specified time/period. E.2.B. GROUP LIFE It is a blanket policy covering a number of individuals who are usually a cohesive group (e.g., employees of a company) and subjected to a common risk. No medical examination is usually required of each person insured (in contrast to individual life insurance).

E. LIFE INSURANCE E.1. DEFINITION Sec. 181. Life insurance is insurance on human lives and insurance appertaining thereto or connected therewith. Every contract or undertaking for the payment of annuities including contracts for the payment of lump sums under a retirement program where a life insurance company manages or acts as a trustee for such retirement program shall be considered a life insurance contract for purposes of the Insurance Code.

Group insurance is a single insurance contract that provides coverage for many individuals. The employer-policy holder is the agent of the insurer in collecting the premium. [Pineda v. CA (1993)] Typically, the policy owner is an employer and the policy covers the employees or members of the group, with one master contract kept by the employer. Where the employee is required to pay a portion of the premium, the arrangement is called a “contributory plan”, wherein his share is deducted from his wages [Carale, 2014]

Sec. 182. An insurance upon life may be made payable on the death of the person, or on his surviving a specified period, or otherwise contingently on the continuance or cessation of life. Every contract or pledge for the payment of endowments or annuities shall be considered a life insurance contract for purposes of the Insurance Code.

E.2.C. INDUSTRIAL LIFE Sec. 235. The term Industrial life insurance as used in this code shall mean that form of life insurance under which the premiums are payable either monthly or oftener, if the face amount of insurance provided in any policy is 63

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

E.3. EXAMPLES OF LIFE INSURANCE POLICIES

not more than 500 times that of the current statutory minimum daily wage in the City of Manila, and if the words industrial policy are printed upon the policy as part of the descriptive matter.

(1) Ordinary or whole life policy, where the insurer agrees to pay the face value of the policy upon the death of the insured; Distinct variations of Whole Life Policy: (A) Ordinary Life Insurance – Premiums are paid throughout the lifetime of the person insured or until the person reaches a predetermined specified age at which point the coverage continues without the payment of additional premiums. (B) Limited Payment Life Insurance – Premiums are paid only during a specified number of years or until a specified event occurs. (C) Single Premium Life Insurance – the coverage is acquired by the payment of a single premium. (D) Joint Life Insurance – coverage is payable upon the first death among two or more insured (normally purchased by business partners or spouse) and paid to the survivor. (E) Universal Life Insurance – emphasizes the separation of the portion of the premium that is used to cover the insurance protection from the portion of the premium allocated to an investment. (F) Variable Life Insurance – some amount of death benefit provided by a variable life insurance policy is guaranteed by the insurer, but the total death benefit and the cash value of the insurance before death depend on the investment performance of that portion of the premium which is allocated to a separate fund. (G) Pure endowment policy – where the insurer pays the insured if the insured survives a specified period. If the insured dies within the period, the insurer is released from liability and

Industrial life insurance refers to an insurance which provides insurance coverage to industrial workers or people who are unable to afford insurance for bigger amounts. Unlike an ordinary life insurance, this kind of insurance shall not lapse after non-payment of premiums in 3 months after the expiration of the grace period, if such non-payment is due to the failure of the company to send its representatives to the insured to collect premium. (Sec. 235 & Carale, 2014) E.2.D. MICROINSURANCE Sec. 187. Microinsurance is a financial product or service that meets the risk protection needs of the poor, where: The amount of contributions, premiums, fees or charges, computed on a daily basis, does not exceed 7.5% of the current daily minimum wage rate for nonagricultural workers in Metro Manila; and The maximum sum of guaranteed benefits is not more than 1,000 times of the said current daily minimum wage rate. Sec. 188. No insurance company or mutual benefit association shall engage in the business of Microinsurance unless it possesses all the requirements as may be prescribed by the Commissioner, who shall issue such rules and regulations governing microinsurance.

64

UP LAW BOC

INSURANCE CODE

unless the contract otherwise provides, need not reimburse any part of the premiums paid; (H) Endowment policy – where the insured is paid the face value of the policy if he outlives the designated period. If he dies within said period, the insurer pays the proceeds to the beneficiary. This is a combination of term policy and pure endowment policy. (2) Term Life Insurance, which provides for the payment of a specified amount if death occurs within the time period designated in the policy, usually for periods of one to five years. (3) Modified Life Insurance, which is a policy that combines terms and whole life insurance into a single insurance policy. Premiums paid by the insured are substantially less during the first few years then later on increases during the remaining term of the policy. (4) Group Life Insurance, which is a type of life insurance in which a single contract covers an entire group of people. [Carale, 2014]

MERCANTILE LAW

(2) If committed in a state of insanity regardless of the date of the commission unless suicide is an excepted peril; (3) If committed after a shorter period provided in the policy. [Sec. 183] Since suicide is contrary to the laws of nature and the ordinary rules of conduct, it is never presumed. The burden of proving lies with the insurer who seeks to avoid liability under a life policy excepting it from coverage [Campos (1983)] E.4.C. DEATH AT THE HANDS OF THE LAW Death at the hands of the law (e.g., legal execution) is one of the risks assumed by the insurer under a life insurance policy in the absence of a valid policy exception [Vance on Insurance (1951)] E.4.D. KILLING BY THE BENEFICIARY General rule: The interest of a beneficiary in a life insurance policy shall be forfeited when the beneficiary is the principal accomplice or accessory in willfully bringing about the death of the insured. In such event, the other beneficiaries so named shall receive their share and divide among them the forfeited share of the “guilty” beneficiary. In the absence of other beneficiaries, proceeds shall be paid according to the policy contract, and if silent, it shall be paid to the estate of the insured [Section 12]

E.4. RISKS E.4.A. DEATH OR SURVIVAL It may be made payable on the death of the person, or on his surviving a specified period, or otherwise contingently on the continuation or cessation of life [Campos (1983)] Death of the insured must be proven by the beneficiary before the insurer can be made to pay.

Exceptions: (1) Accidental killing; (2) Self-defense; (3) Insanity of the beneficiary at the time he killed the insured; (4) Negligence.

E.4.B. SUICIDE Insurer is liable in the following cases: (1) If committed after two years from the date of the policy’s issue or its last reinstatement. Any stipulation extending the 2-year period is void;

Note: Conviction of the beneficiary is necessary before his interest in the insurance policy is forfeited in favor of the others indicated in Section 12. 65

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

the criminal case to be liable. Its purpose is to give immediate financial assistance to victims of motor vehicle accidents and/or their dependents, especially if they are poor, regardless of the financial capability of motor vehicle owners or operators responsible for the accident sustained [Shafer v. Judge, RTC (1988)]

F. COMPULSORY MOTOR VEHICLE LIABILITY INSURANCE Sec. 387. It shall be unlawful for any land transportation operator or owner of a motor vehicle to operate the same in the public highways unless there is in force in relation thereto a policy of insurance or guaranty in cash or surety bond issued in accordance with the provisions of this chapter to indemnity the death, bodily injury and/or damage to property of a third-party or passenger, as the case my be, arising from the use thereof.

The claimants/victims may be a passenger or a third party. The insured may be the party at fault as against claims of third parties (third party liability) or the victim of the contingent event. The following clauses are relevant to compulsory motor vehicle liability insurance: (1) Authorized driver clause is a stipulation in a motor vehicle insurance which provides that the driver, other than the insured owner, must be duly licensed to drive the motor vehicle, otherwise the insurer is excused from liability; (2) Theft clause is a stipulation including theft as one of the risks insured against. If there is such a provision and the vehicle was unlawfully taken, the insurer is liable under the theft clause and the authorized driver clause does not apply. The insured can recover even if the thief has no driver’s license. (3) No Fault Clause is a provision required in every compulsory motor vehicle liability insurance regarding claims for death or injury to a passenger or third party on a liability insurance policy covering the vehicle.

Compulsory motor vehicle liability insurance is a policy of insurance or guaranty in cash or surety bond to indemnify the death, bodily injury, and/or damage to property of a thirdparty or passenger arising from the use of a motor vehicle. It is a requisite for registration or renewal of registration of a motor vehicle by every land transportation operator or owner [Section 390]. It is the only compulsory insurance under the Insurance Code. It is a species of compulsory insurance that provides for protection coverage that will answer for legal liability for losses and damages for bodily injuries or property damage that may be sustained by another arising from the use and operation of motor vehicle by its owner. It applies to all vehicles whether public or private vehicles. To the extent that motor vehicle insurance is compulsory, it must be a liability policy, and the provision making it merely an indemnity insurance contract cannot have any effect [Campos (1983)]

Any claim for death or injury to any passenger or third party shall be paid without the necessity of proving fault or negligence of any kind, provided the total indemnity in respect of any person shall not exceed P15,000.

The insurer’s liability is direct and primary so the insurer need not wait for final judgment in 66

UP LAW BOC

INSURANCE CODE

The claim shall be made against only one motor vehicle. It shall lie against the insurer of the vehicle in which the occupant is riding, and no other. The claimant is not free to choose from which insurer he will claim the no fault indemnity. [Perla Compania de Seguros v. Ancheta (1988)]

MERCANTILE LAW

There is a moral hazard in removing insurable interest as a requirement for the validity of an insurance policy – It allows the insured to have an interest in the destruction of the subject matter rather than in its preservation. [Myer v. Grand Lodge] (2) As a measure of limit of recovery. The insurable interest is the measure of the upper limit of his provable loss under the contract. Sound public policy requires that insurance should not provide the insured means of making a net profit from the happening of the event insured against.

IV. INSURABLE INTEREST A. IN GENERAL In general, an insurable interest is that interest which a person is deemed to have in the subject matter insured, where he has a relation or connection with or concern in it, such that the person will derive pecuniary benefit or advantage from the preservation of the subject matter insured and will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening of the event insured against. The existence of an insurable interest gives a person the legal right to insure the subject matter of the policy of insurance [Lalican v. Insular Life Ins. (2009)]

A.1. WHEN INSURABLE SHOULD EXIST Policy

INTEREST

Insurable interest required Effectivity Intervening Occurrence of period of loss insurance

Life or health



Property





Insurable interest over life/health may be lost after the insurance takes effect as long as it exists at the time the insurance takes effect. On the other hand, insurable interest property need not exist during the intervening period or from the time between when the policy takes effect and the loss occurs. The alienation of insured property will not defeat a recovery if the insured has subsequently reacquired the property and possesses an insurable interest at the time of loss [Womble v. Dubuque Fire &Marine Ins. Co.]

An insurable interest is one of the most basic and essential requirements in an insurance contract. As such, it may NOT be waived by stipulation. Absence of insurable interest renders the insurance contract void. The insurable interest need not always be pecuniary in nature (such as by insuring the life of a person). Rationale: (1) As a deterrence to the insured. A policy issued to a person without interest is a mere wager policy or contract and is void for illegality. A wager policy is obviously contrary to public interest.

67

UP LAW BOC

INSURANCE CODE

A.2. CHANGE OF INTEREST

MERCANTILE LAW

during the circumstance of the risk [Sec. 57]. It is an exception to the general rule that upon maturity, the proceeds of a policy shall be given exclusively to the proper interest if the person in whose name or for whose benefit it is made. (7) An express prohibition against alienation in the policy [Article 1306, Civil Code], in which case alienation will not merely suspend the contract but avoid it entirely.

Change of interest means the absolute transfer of the property insured. General rule: A change of interest in the thing insured does not transfer the policy, but suspends the insurance to an equivalent extent until the interest in the thing and the interest in the insurance policy are vested in the same person. Thus, the contract is not rendered void but is merely suspended [Sec. 20]

B. IN LIFE/HEALTH INSURANCE Exceptions: (1) Life, health, and accident insurance; (2) A change of interest in the thing insured after the occurrence of an injury which results in a loss does not affect the policy [Sec. 21]; (3) A change in the interest in one or more of several things, separately insured by one policy, such as a conveyance of one or more things, does not affect the policy with respect to the others not so conveyed (Sec. 22); (4) A change of interest by will or succession on the death of the insured. The death of the insured does not avoid insurance policy. It does not affect the policy except his interest passes to his heir or legal representative who may continue the insurance policy on the property by continuing paying premiums [Sec. 23]; (5) A transfer of interest by one of several partners, joint owners, or owners in common, who are jointly insured, to the others. This does not avoid the insurance. It will avoid the policy only as to the selling partners or co-owners but not as to others. The rule applies even though it has been agreed that the insurance cease upon alienation of the thing [Sec. 24]; (6) Automatic transfers of interest in cases in which the policy is so framed that it will inure to the benefit of whosoever may become the owner of the interest insured

Sec. 10. Every person has an insurable interest in the life and health: (1) Of himself, of his spouse and of his children; (2) Of any person on whom he depends wholly or in part for education or support, or in whom he has a pecuniary interest; (3) Of any person under a legal obligation to him for the payment of money, or respecting property or services, of which death or illness might delay or prevent the performance; and (4) Of any person upon whose life any estate or interest vested in him depends. Unless the interest of a person insured is susceptible of exact pecuniary measurement, the measure of indemnity under a policy of insurance upon life or health is the sum fixed in the policy. Life insurance policies may be divided into two general classes: (1) Insurance upon one’s life; (2) Insurance upon life of another.

68

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

B.1. IN LIFE INSURANCE Note: An assignment is different from a change in the designated beneficiary. When the beneficiary is the principal, accomplice or accessory in willfully bringing about the death of the insured, interest of beneficiary in life insurance policy is forfeited [Sec. 12]

B.1.A. INTEREST IN ONE’S OWN LIFE Cestui que vie is the insured himself. The insured can designate anyone to be the beneficiary of the policy. Each has unlimited interest in his own life, whether the insurance is for the benefit of himself or another.

B.1.C. BENEFICIARY A beneficiary is the person who is named or designated in a contract of life, health, or accident insurance as the one who is to receive the proceeds or benefits which become payable, according to the terms of the contract, if the insured risk occurs.

The beneficiary designated need not have any interest in the life of the insured when person takes out policy on his own life. But if a person obtains a policy on the life of another and names himself as the beneficiary, he must have insurable interest therein.

General rule: A person may designate a beneficiary, irrespective of the beneficiary’s lack of insurable interest, provided he acts in good faith and without intent to make the transaction merely a cover for a forbidden wagering contract [De Leon (2010)]

B.1.B. INTEREST IN LIFE OF ANOTHER In life insurance, unless based on commercial relationship, the policy owner does not necessarily have “pecuniary interest” on the life of the cestui que vie. Mere relationship is a sufficient interest to be insured.

Exceptions: Any person who is forbidden from receiving any donation under Article 739, Civil Code cannot be named beneficiary of a life insurance policy by the person who cannot make any donation to him. [Article 2012, Civil Code]

The insurable interest must be based on moral and legal grounds. Such interest exists whenever the insured has a responsible expectation of deriving benefit from the continuation of the life of the other person or of suffering detriment through its termination. There is no insurable interest in the life of an illegitimate spouse.

Sec. 739, Civil Code: The following donations are void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

A creditor may take out insurance on the life of his debtor but his insurable interest is only up to the amount of the debt and only when the debt is unsecured. [Carale, 2014] An assignee of the insurance contract is not required to have insurable interest in the life of the insured, for to require such interest in him is to diminish the investment value of the contract to the owner. 69

UP LAW BOC

INSURANCE CODE

The insured shall have the right to change the beneficiary he designated in the policy, unless he has expressly waived this right in said policy (irrevocable beneficiary).

MERCANTILE LAW

C. IN PROPERTY INSURANCE Sec. 13. Every interest in property, whether real or personal, or any relation thereto, or liability in respect thereof, of such nature that a contemplated peril might directly damnify the insured, is an insurable interest.

In general, the policy owner can change the beneficiary without the consent of such beneficiary. However, when this right to change is expressly waived, the consent of the beneficiary is necessary. This means that despite the waiver, he can still change the beneficiary, provided he obtained the beneficiary’s consent.

Sec. 14. An insurable interest in property may consist in: (1) An existing interest; (2) An inchoate interest founded on an existing interest; or (3) An expectancy, coupled with an existing interest in that out of which the expectancy arises.

B.2. INTEREST IN HEALTH INSURANCE General rule: Interest in the life or health of a person must exist when the insurance takes effect (at inception), but need not exist thereafter or when the loss occurs.

The insurable interest may be in the property itself (e.g., ownership), or any relation thereto (e.g., interest of a trustee or a commission agent), or liability in respect thereof (e.g., interest of a carrier or depository of goods). (1) An existing interest - may be a legal title or equitable title. Examples of those having existing interest are owners as regards their properties, trustees in the case of the seller of property not yet delivered, mortgagors over the property mortgaged, and lessor, lessee and sub-lessee over the property leased. (2) An inchoate interest must be founded on existing interests. It exists but is incomplete or unripe until the happening of an event. Examples of inchoate interests are the interest of stockholders with respect to dividends in case of profits and shares in the assets, and the interest of a partner in the properties belonging to the partnership. (3) An expectancy must be coupled with an existing interest out of which the expectancy arises. For example, a farmer

Exceptions: (1) In the case of a creditor’s insurance taken on the life of the debtor, insurable interest disappears once the debt has been paid. At this point, the creditor/insured can no longer recover on the policy; (2) In the case of a company’s insurance taken on the life of an employee, insurable interest disappears once the employee leaves the company, in which case, the company can no longer recover on the policy.

B.3. TRANSFER OF POLICY Interest can be transferred even without the notice to the insurer of such transfer or bequest, unless there is a stipulation to the contrary. There is no right of subrogation in life insurance, because it is not a contract of indemnity.

70

UP LAW BOC

INSURANCE CODE

who planted crops has insurable interest over his harvest which can be expected.

MERCANTILE LAW

(3) A change in interest by will or succession upon the death of the insured [Sec. 23] (4) A transfer of interest by one of several partners, joint owners, or owners in common who are jointly insured. The acquiring co-owner has the same interest; his interest merely increases upon acquiring other co-owners interest (Sec. 24).

A mere contingent or expectant interest in anything, not founded on an actual right to the thing, nor upon any valid contract for it, is not insurable. [German Insurance v. Hyman] A son has no insurable interest over the property of his father because such is just a mere expectancy and has no legal basis before he inherits such property.

C.2. TRANSFER OF POLICY Interest cannot be transferred without the insurer’s consent, because the insurer has approved the policy based on the personal qualifications and insurable interest of the insured.

Insurable interest in property may be based on a perfected contract of sale, vesting an equitable title even before delivery of the goods. [Filipino Merchants Ins. Co. v. CA (1989)]

When there is an express prohibition against alienation in the policy, and there is alienation, the contract of insurance is not merely suspended but avoided.

When the seller retains ownership only to insure that the buyer will pay its debt, the risk of loss is borne by the buyer. Insurable interest in property does not imply a property interest in, or a lien upon, or possession of the subject matter of the insurance, and neither ownership nor a beneficial interest is requisite to the existence of such an interest. Anyone has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction [Gaisano Cagayan Ins. v. Ins. Co. of North America, (2006)]

C.3. MEASURE OF INDEMNITY Being a contract of indemnity, the measure of insurable interest in property is the extent to which the insured might be damnified by the loss of injury thereof. The insured cannot recover a greater value than that of his actual loss because it would be a wagering policy contrary to public policy and void.

C. 1. TIME OF EXISTENCE General rule: Interest in property insured must exist both at inception and at time of loss, but not in the intervening period. Exceptions: (1) A change in interest over the thing insured after the loss contemplated. The insured may sell the remains without prejudice to his right to recover [Sec. 21]; (2) A change of interest in one or more several distinct things, separately insured by one policy. This does not avoid the insurance as to the others [Sec. 22]; 71

UP LAW BOC

INSURANCE CODE

C.4. INTEREST IN PROPERTY AND LIFE DISTINGUISHED Property

D. DOUBLE AND OVER INSURANCE; REINSURANCE

Life

D.1. DOUBLE INSURANCE

Extent Limited to actual value of the interest thereon

Sec. 95. Double insurance exists where the same person is insured by several insurers separately in respect to the same subject and interest.

Unlimited (save in life insurance effected by a creditor on the life of the debtor – amount of debt only)

Requisites: (1) The same person is insured; (2) Two or more insurers insuring separately; (3) The same subject matter; (4) The same interest insured; and (5) The same risk or peril insured against

Existence Must exist when the insurance takes effect and when the loss occurs, BUT need not exist in the meantime

Must exist at the time the insurance takes effect, BUT need not exist thereafter

Double insurance is not prohibited under the law, unless the policy contains a stipulation to the contrary. Usually, insurance policy contains “other insurance clause” which requires disclosure of other existing insurance policy. In such case, non-disclosure will avoid the policy. Such clause is intended to prevent over insurance and thus avert the perpetration of fraud.

Expectation of benefit to be derived Must basis

have

legal

Need not have legal basis

Interest of beneficiary Must have insurable interest over the thing insured

MERCANTILE LAW

Need not have insurable interest over the life of the insured if the insured himself secured the policy. But if the insurance was obtained by the beneficiary, the latter must have insurable interest over the life of the insured [Sundiang and Aquino (2013)]

If there is double insurance and loss occurs, each of the insurers will be liable only up to the face value of their respective policies and the insured has the option of choosing the order by which he will claim from the insurers. If there is over-insurance and loss occurs, then the insurers will pay pro-rata (or in the order as stated in contract or “excess clause”) in case of loss. Nonetheless, under Section 64(f), an insurer may cancel an insurance policy, other than life, based on a “discovery of other insurance coverage that makes the total insurance in excess of the value of the property insured” subject to the requirement of prior notice.

72

UP LAW BOC

INSURANCE CODE

Also, under Section 83, “in case of an over insurance by several insurers other than life, the insured is entitled to a ratable return of the premium, proportioned to the amount by which the aggregate sum insured in all the policies exceeds the insurable value of the thing at risk.”

Reinsurance has been referred to as “an insurance of an insurance.”

D.4.A. ORIGINAL INSURANCE CONTRACT AND REINSURANCE CONTRACT DISTINGUISHED The original insurance contract is separate and distinct from the reinsurance contract. Insurance contract is independent from the reinsurance contract. Insurance contract covers indemnity against damages. Reinsurance covers indemnity against liability.

D.2. RULES FOR PAYMENT Section 96 enunciates the principle of contribution which requires each insurer to contribute RATABLY to the loss or damage considering that the several insurances cover the same subject matter and interest against the same peril. If the loss is greater than the sum total of all the policies issued, each insurer is liable for the amount of his policy.

D.4.B. REINSURANCE TREATY POLICY DISTINGUISHED

Over insurance

Amount of insurance may or may not exceed the value of the insured’s insurable interest

Amount of insurance exceeds the value of the insured’s insurable interest

There are always several insurers

There may be one or more insurers

AND

A reinsurance treaty is an agreement between two insurance companies whereby one agrees to cede and the other to accept reinsurance business pursuant to provisions specified in the treaty. [De Leon (2010)]

D.3. DOUBLE AND OVER INSURANCE DISTINGUISHED Double insurance

MERCANTILE LAW

A reinsurance policy is a contract of indemnity one insurer makes with another to protect the first insurer from a risk it has already assumed. Reinsurance treaties and reinsurance policies are not synonymous. Treaties are contracts for insurance; policies are contracts of insurance. [Philamlife v. Auditor General (1958)]

D.4. REINSURANCE

D.5. DOUBLE INSURANCE REINSURANCE DISTINGUISHED

Sec. 97. A contract of reinsurance is one by which an insurer procures a third person to insure him against loss or liability by reason of such original insurance.

Double insurance

Sec. 99. A reinsurance is presumed to be a contract of indemnity against liability, and not merely against damage. Sec. 100. The original insured has no interest in a contract of reinsurance.

73

AND

Reinsurance

Same interest

Different interest

Insurer remains as the insurer

Insurer becomes the insured in relation to the reinsurer

Insured is a party in interest in the insurance contracts

The original insured is not a party in the reinsurance contract

Property is subject matter

The original insurer's risk is the subject matter

the

UP LAW BOC Insured has to give his consent

INSURANCE CODE

MERCANTILE LAW

proceeds by virtue of the mortgage. A mortgagor can make the proceeds payable to or assigned to the mortgagee.

Insured’s consent is not necessary

E.1. OPEN LOSS PAYABLE MORTGAGE CLAUSE

E. MULTIPLE OR SEVERAL INTERESTS ON SAME PROPERTY

An open loss payable clause simply states that the proceeds of the insurance contract is payable to the mortgagee as beneficiary.

The Insurance Code recognizes that both the mortgagor and mortgagee have each separate and distinct insurable interest in the mortgaged property and that they may take out separate policies with the same or different insurance companies. Consequently, insurance taken by one on his own name only does not inure to the benefit of the other.

The contract, however, is procured by the mortgagor for his interest in the property. He is the party to the contract, not the mortgagee. The acts of the mortgagor prior to the loss, which would otherwise avoid the insurance, affects the mortgagee, even if the property is in the hands of said mortgagee.

Thus, a mortgagor has an insurable interest equal to the value of the mortgaged property and a mortgagee, only to the extent of the debt secured by the mortgage. [Geagonia v. CA (1995)]

E.2. UNION MORTGAGE OR STANDARD MORTGAGE CLAUSE This clause is similar to an open loss payable clause, except that it is stipulated that the acts of the mortgagor cannot invalidate the insurance, provided that if the mortgagor fails to pay the premiums due, the mortgagee shall, on demand, pay said premiums.

When a mortgagee insures his own interest in the mortgaged property without reference to the right of the mortgagor, mortgagee is entitled to the proceeds of the policy in case of loss to the extent of his credit. If the proceeds are more than the total amount of credit, then mortgagee has no right to the balance. If the proceeds are equal to the credit, then insurer is subrogated to the mortgagee’s rights and mortgagee can no longer recover the mortgagor’s indebtedness.

When a mortgagee insured his own interest and a loss occurs, he is entitled to recover on the insurance. However, he may no longer claim against the mortgagor, for his claim is discharged up to the amount the insurer has paid him. [Palileo v. Cosio (1955)]

If the proceeds are less than the credit, then the mortgagee may recover from the mortgagor the deficiency. Upon payment, the insurer is subrogated to the rights of the mortgagee against the mortgagor to the extent of the amount paid. When a mortgagor takes out an insurance for his own benefit, he can only recover from the insurer but the mortgagee has a lien on the 74

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

V. PERFECTION OF THE INSURANCE CONTRACT

The parties may impose additional conditions precedent to the validity of the policy as a contract as they see fit. Usually, it is stipulated in the application that contract shall not become binding until the policy is delivered and the first premium is paid [De Leon (2010)]

A. OFFER AND ACCEPTANCE/CONSENSUAL

A.1. DELAY IN ACCEPTANCE Delay in acting on the application does not constitute acceptance even though the insured has forwarded his first premium with his application. [Perez v. CA (2000)]

An insurance contract is consensual. It is therefore perfected by mere consent. Consent is manifested by the meeting of the offer and the acceptance upon the object or the cause which are to constitute the contract.

When there is delay in acceptance due to the negligence of the insurance company which takes unreasonably long time before the application is processed and the applicant dies, the contract is not perfected. In this case, the insurer can be liable for damages in accordance with the “tort theory.” The insurance business is imbued with public interest, thus it is the duty of the insurer to act with reasonable promptness in acting on applications submitted to it [Wallace v. Hartford Fire Insurance Co(1918)]

There is an offer when the insured submits an application to the insurer. There is acceptance when the insurer approves the application. The insurance contract becomes effective upon payment of first premium, provided there has been an approval of the application. A contract of insurance must be assented to by both parties, either in person or through their agents and so long as an application for insurance has not been either accepted or rejected, it is merely a proposal or an offer to make a contract. [Perez v. CA (2000)]

The measure of damage is the face value of the policy. In life insurance, the proceeds will inure to the insured’s estate and not to the beneficiary.

Also, according to Enriquez v. Sun Life Assurance Co. (1920): (1) Submission of application, even with premium payment is a mere offer on the part of the applicant, and does not bind the insurer; (2) An insurance contract is also not perfected where the applicant dies before the approval of his application or it does not appear that the acceptance of the application ever came to the knowledge of the applicant; (3) An acceptance made by letter shall not bind the person making the offer except from the time it came to his knowledge.

A.2. DELIVERY OF POLICY Delivery is the act of putting the insurance policy (the physical document) into the possession of the insured. The delivery can be a proof of the acceptance of the insurer of the offer of the insured. It is not, however, a prerequisite of a valid contract of insurance. Actual manual delivery is not necessary for the validity of the contract. Constructive delivery may be sufficient. Actual delivery to the insured is not essential to give the policy binding effect as long as the insured has complied with every condition 75

UP LAW BOC

INSURANCE CODE

required of him. [New York Life Ins. Co. v. Babcock (1898)]

MERCANTILE LAW

Note: Sec. 77 was amended by RA 10607. Prior to amendment, there were 5 exceptions to Sec. 77: (1) Life and industrial life policy [Sec. 77] (2) Acknowledgement in the contract that premium has been paid [Sec. 78] (3) Agreement to grant credit extension for payment of premium [UCPB v Masagana] (4) Agreement to grant payment of premium in installment basis and partial payment has been made [Makati Tuscany v. CA] (5) When parties are barred by Estoppel [UCPB v. Masagana]

There are conflicting views as to whether delivery to the agent of the insurance company can be considered delivery to the insured. In Bradley v. New York Life Ins. (1921), the agent of the insurance company is not the agent of the insured. Thus delivery to the agent cannot be considered delivery to the insured.

B. PREMIUM PAYMENT An insurance premium is the agreed price for assuming and carrying the risk, that is, the consideration paid an insurer for undertaking to indemnify the insured against the specified peril.

However, because of RA 10607, the exceptions were limited to 3: (1) Life and industrial life policy [Sec. 77] (2) 90 day credit extensions covered by broker or agency agreements with licensed intermediaries [Sec. 77] (3) Acknowledgment in the contract that premium has been paid [Sec. 79)] [Carale, 2014]

General rule: No insurance policy issued or renewal is valid and binding until actual payment of the premium (Section 77). Any agreement to the contrary is void.

B.1. AUTHORITY OF AGENT TO RECEIVE PREMIUM

Sec. 77. Notwithstanding any agreement to the contrary, no policy or contract of insurance issued by an insurance company is valid and binding unless and until the premium thereof has ben paid, except in the case of a life or an industrial life policy whenever the grace period provision applies or whenever under the broker and agency agreements with duly licensed intermediaries, a 90 day credit extension is given. No credit extension to a duly licensed intermediary should exceed 90 days from the date of issuance of the policy.

Where an insurer authorizes an insurance agent or broker to deliver a policy to the insured, it is deemed to have authorized said agent to receive the premium in its behalf. The insurer is bound by its agent’s acknowledgement of receipt of payment of premium [American Home Assurance Co. v. Chua (1999)]

B.2. PAYMENT BY POST-DATED CHECK The payment of premium by a postdated check at a stated maturity subsequent to the loss is insufficient to put the insurance into effect.

Sec. 79. An acknowledgment in a policy or contract of insurance or the receipt of premium is conclusive evidence of its payment, so far as to make the policy binding, notwithstanding nay stipulation therein that it shall not be binding until the premium is actually paid.

But payment by a check bearing a date prior to the loss, assuming availability of funds, would be sufficient, even if it remains unencashed at the time of the loss. The subsequent effects of 76

UP LAW BOC

INSURANCE CODE

encashment would retroact to the date of the instrument and its acceptance by the creditor [Vitug, Commercial Laws and Jurisprudence (2006)]

MERCANTILE LAW

of default in a premium payment after three full annual premiums shall have been paid: (1) Receive the cash surrender value (2) Apply such value as the premium for an extended insurance (3) Apply such value as the premium for a paid-up insurance (4) Secure from such value an automatic premium loan before the expiration of the grace period.

B.3. NON-PAYMENT OF PREMIUM Non-payment of first premium, unless waived, prevents the contract from becoming binding notwithstanding the acceptance of the application nor the issuance of the policy.

C.1. CASH SURRENDER VALUE (CSV)

Non-payment of subsequent premiums does not affect the validity of the contracts unless, by express stipulation, it is provided that the policy shall in that event be suspended or shall lapse. In case of individual life insurance, the policy holder is entitled a grace period of either 30 days or one month within which payment of any premium after the first may be made. In cases of industrial life insurance, the grace period is four weeks, and where premiums are paid monthly, either 30 days or one month.

It is the amount that the insured is entitled to receive if he surrenders the policy and releases his claims upon it. The right to CSV accrues only after three full annual premium payments. The insured is given the right to claim the amount less than the reserve, reduced by surrender charge. The cash value or cash surrender value is an amount which the insurance company holds in trust for the insured to be delivered to him upon demand. When the company’s credit for advances is paid out of the cash value or cash surrender value, that value and the company’s liability is diminished. [Manufacturer’s Life Ins. v. Meer (1951)]

B.4. EXCUSES FOR NON-PAYMENT (1) Fortuitous events which render payment by the insured wholly impossible will not prevent forfeiture of the policy when the premium remains unpaid. In other words, it is not an excuse. (2) Non-payment of premiums occasioned by war causes an insurance to be not merely suspended, but is completely abrogated. It would be unjust to allow the insurer to retain the reserve value of the policy, which is the excess of the premiums paid over the actual risk carried during the years when the policy had been in force in time of war [Constantino v. Asia Life Ins. Co. (1950)]

Rationale: The premium is uniform throughout a lifetime, but the risk is varied (i.e., higher risk when older, lower when young). Thus, the cost of protection is more expensive during the early years of the policy.

C.2. ALTERNATIVE TO CSV (1) Extended insurance/term insurance - where the insured, after having paid three full annual premiums, is given the right to have the policy continued in force from date of default for a time either stated or equal to the amount of the CSV, taken as a single premium. The face value of the policy remains the same but only within the term. It is also called “term insurance” where CSV

C. NON-DEFAULT OPTIONS IN LIFE INSURANCE Sec. 227 (f) – The law requires that in case of life or endowment insurance, the policy shall contain a provision specifying the options to which the policy holder is entitled in the event 77

UP LAW BOC

INSURANCE CODE

is taken as a single premium (no further payments) to extend the policy for a fixed period of time. If death occurs during this period, the beneficiary can recover the face value of the policy, but if the insured survives, the beneficiary gets nothing. Reinstatement is allowed if made within the term purchased; no reinstatement after the lapse of the term purchased. (2) Paid-up insurance - where, after the insurance is “paid-up,” the insured who has paid three full annual premiums is given the right, upon default, to have the policy continued from the date of default for the whole period of insurance without further payment of premiums. It is also called “reduced paid-up” because in effect the policy, terms and conditions are the same but the face value is reduced to the “paid-up” value. The terms and conditions of the original policy remain the same, however, the amount will be less than the original face value. (3) Automatic premium loan (APL) - where, upon default, the insurer lends/advances to the insured without any need of application on his part, amount necessary to pay overdue premium, but not to exceed the CSV of the policy. It only applies if requested in writing by the insured either in the application or at any time before expiration of the grace period. In effect, the insurance policy continues in force for a period covered by the payment. After the period, if insured still does not resume paying his premiums, policy lapses, unless CSV still remains. If there is still CSV, APL continues until CSV is exhausted. This is beneficial for the insured because it continues the contract and all its features with full force and effect.

MERCANTILE LAW

D. REINSTATEMENT OF A LAPSED LIFE INSURANCE POLICY Reinstatement of a lapsed life insurance policy is not a non-default option. It does not create a new contract, but merely revives the original policy so insurer cannot require a higher premium than the amount stipulated in the contract. It does not apply to group/industrial life insurance. Requisites: [Sec. 233(j)] (1) It must be exercised within three years from date of default; (2) The insured must present evidence of insurability satisfactory to the insurer; (3) He must pay all back premiums and all indebtedness to the insurer (with interest) (4) The CSV must not have been duly paid to the insured nor the extension period expired; (5) The application must be filed during the insured’s lifetime. [Andres v. Crown Life Ins. (1958)]

E. REFUND OF PREMIUMS Return of premiums can be made in the following cases: (1) If the thing insured was never exposed to the risks insured against, the whole premium should be refunded [Sec. 80(a)]; (2) When the contract is voidable due to the fraud or misrepresentation of insurer or his agent, the whole premium should be refunded [Sec. 82] (3) When by any default of the insured other than actual fraud, the insurer never incurred any liability under the policy, the whole premium should be refunded [Sec. 82]; (4) When the contract is voidable because of the existence of facts of which the insured was ignorant without his fault, the whole premium should be refunded [Sec. 82]; (5) Where the insurance is for a definite period and the insured surrenders his policy, the 78

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

portion of the premium that corresponds to the unexpired time at a pro rata rate, unless a short period rate has been agreed upon and appears on the face of the policy should be return [Sec. 80(b)]; (6) When there is over-insurance by several insurers, the return premiums should be proportioned to the amount by which the aggregate sum insured in all the policies exceeds the insurable value of the thing at risk [Sec. 83]; (7) When rescission is granted due to the insurer’s breach of contract.

A.1. PROOF CONCEALMENT

OF

FRAUD

IN

VI. RESCISSION OF INSURANCE CONTRACTS

Sec. 31. Materiality relates rather to the probable and reasonable influence of the facts upon the party to whom the communication should have been made, in assessing the risk involved in making or omitting to make further inquiries and in accepting the application for insurance.

General rule: Fraud need not be proven in order to prove concealment. Good faith is not a defense. Exception: When the concealment is made by the insured in relation to the falsity of a warranty, the non-disclosure must be intentional and fraudulent in order that the contract may be rescinded [Sec. 29]

A.2. TEST OF MATERIALITY

Sec. 26. A neglect to communicate that which a party knows and ought to communicate, is called a concealment. Sec. 27. A concealment whether intentional or unintentional entitles the injured party to rescind a contract of insurance.

The test is the effect which the knowledge of the fact in question would have on the contract. It is sufficient if the knowledge of it would influence the party in making the contract. [De Leon (2010)]

Requisites: (1) A party knows a fact which he neglects to communicate or disclose to the other; (2) Such party concealing is duty bound to disclose such fact to the other; (3) Such party concealing makes no warranty of the fact concealed; (4) The other party has not the means of ascertaining the fact concealed; (5) The fact concealed is material.

The test of materiality is whether the insurer would have agreed to issue the policy had it known of the facts concealed or impose additional terms or require higher premium [Carale, 2014]

A.3. EFFECTS General rule: Concealment vitiates the contract and entitles the insurer to rescind, even if the death or loss is due to a cause not related to the concealed matter.

Concealment may be committed by either the insurer or the insured [Qua Chee Gan v. Law Union & Rock Ins. Co. (1955); Fieldmen’s Ins. Co. v. Vda. de Songco (1968)]

Exceptions: (1) Incontestability clause, which clause stipulates that the policy shall be incontestable after a stated period. The incontestability clause is a mandatory 79

UP LAW BOC

INSURANCE CODE

provision in life and endowment policies. The policy must be payable on the death of the insured and has been in force during the lifetime of the insured for at least two years from its date of issue or of its last reinstatement [Sec. 233 (b) and Sec. 48]; (2) Concealment after the contract has become effective, because concealment must take place at the time the contract is entered into in order that the policy may be avoided. Information obtained after the perfection of the contract is no longer necessary to be disclosed by the insured, even if the policy has not been issued. (3) Waiver or estoppel; (4) Marine insurance, where concealment of the following matters does not vitiate the entire contract, but merely exonerates the insurer from a loss resulting from the risk concealed: (a) The national character of the insured; (b) The liability of the thing insured to capture and detention; (c) The liability to seizure from breach of foreign laws of trade; (d) The want of necessary documents; and (e) The use of false and simulated papers (Section 112).

merely exonerate the insurer from losses resulting from the risk concealed.

A.5. CONCEALMENT IN NON-MEDICAL INSURANCE The waiver of medical examination in a nonmedical insurance contract renders even more material the information required of the applicant concerning the previous conditions of health and diseases suffered. The cause of death is not important because it is well settled that the insured need not die of the disease he had failed to disclose to the insurer. It is sufficient that his nondisclosure misled the insurer in forming his estimates of the risks of the proposed policy or in making inquiries. [Sunlife v. Sps. Bacani (1995] Where matters of opinion or judgment are called for, answers made in good faith and without intent to deceive will not avoid the policy even though they are untrue. Reason: The insurer cannot simply rely on those statements. He must make further inquiry [Philamcare Health Systems v. CA (2002)]

A.4. CONCEALMENT IN MARINE AND ORDINARY PRIVATE INSURANCE DISTINGUISHED Marine insurance

A.6. MATTERS WHICH MUST BE DISCLOSED EVEN IN THE ABSENCE OF INQUIRY

Ordinary insurance

Sec. 28. Each party to a contract of insurance must communicate to the other, in good faith, all facts within his knowledge which are material to the contract and as to which he makes no warranty, and which the other has not the means of ascertaining.

Required disclosure Exact truth

and

whole

Substantial truth

Effect of concealment Concealment of the matters specified in Sec. 112 will not entirely avoid the contract but will

MERCANTILE LAW

Any kind of concealment will make the insurer not liable.

Note: If the applicant is aware of the existence of some circumstance which he knows would influence the insurer in acting upon his 80

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

B. MISREPRESENTATION/OMISSIONS

application, good faith requires him to disclose that circumstance, though unasked. [Vance (1951)]

Sec. 41. A representation may be altered or withdrawn before the insurance is effected but not afterwards.

The fact of being a “mongoloid” is a material fact that needs to be disclosed (Great Pacific Life v. CA (1979)). Mere possibility of previous hypertension is not enough to establish concealment (Great Pacific Life (1999)).

Sec. 42. A representation must be presumed to refer to the date on which the contract goes into effect. Sec. 44. A representation is to be deemed false when the facts fail to correspond with its assertions or stipulations.

A.7. MATTERS WHICH NEED NOT BE DISCLOSED (1) Matters already known to the insurer [Section 30(a)]; (2) Matters which each party are bound to know [Section 30(b) and Section 32]; (3) Matters of which the insurer waives communication [Section 30(c) and Section 33]; (4) Matters which prove or tend to prove the existence of a risk excluded by a warranty and which are not otherwise material [Section 30(d)]; (5) Matters which relate to a risk excepted in the policy, and which are not otherwise material [Section 30(e)]; (6) Information of the nature or amount of the interest of one insured unless if inquired upon by the insurer, except if required by Section 51 [Section 34] (7) Matters of opinion [Section 35]

Sec. 45. If a representation is false in a material point, whether affirmative or promissory, the injured party is entitled to rescind the contract from the time when the representation becomes false. Representations are factual statements made by the insured at the time of, or prior to, the issuance of the policy, which give information to the insurer and induce him to enter into the insurance contract. There is false representation if the matter is true at the time it was made/represented but false at the time the contract takes effect (Section 44). Corollarily, there is no false representation if the matter is true at the time the contract takes effect although false at the time it was made/represented.

Sec. 32. Each party to a contract of insurance is bound to know all the general causes which are open to his inquiry, equally with that of the other, and which may affect the political or material perils contemplated; and all general usages of trade.

B.1. KINDS OF REPRESENTATIONS (1) Affirmative, which refers to any allegation as to the existence or non-existence of a fact when the contract begins. (2) Promissory, which is any promise to be fulfilled after the contract has come into existence; or any statement concerning what is to happen during the existence of the insurance [Section 39]. A promissory

81

UP LAW BOC

INSURANCE CODE

representation is substantially a condition or warranty [De Leon (2010)]. (3) Oral or written [Section 36].

MERCANTILE LAW

(a) Has no personal knowledge of the facts; (b) Believes them to be true; and (c) Explains to the insurer that he does so on the information of others. (6) A misrepresentation as to age does not constitute a ground for rescission. If the age of the insured was considered in determining the premium and the benefits under the policy and the age is misstated, the amount payable for the policy shall be as if the policy was purchased at the correct age [Carale, 2014].

Requisites: (1) The insured stated a fact which is untrue; (2) Such fact was stated with knowledge that it is untrue and with intent to deceive or which he states positively as true without knowing it to be true and which has a tendency to mislead; (3) Such fact in either case is material to the risk. Like in concealment, fraud or intent is not essential to entitle the insurer to rescind on the ground of misrepresentation [Section 45].

A representation cannot qualify an express provision or an express warranty of insurance (Section 40) because a representation is not part of the contract but only a collateral inducement to it. However, it may qualify as an implied warranty.

B.2. TEST OF MATERIALITY Sec. 46. The materiality of a representation is determined by the same rules as the materiality of a concealment.

It is sufficient that the representation is substantially or materially true, and in case of promissory representation, it is sufficient that it is substantially complied with [Carale, 2014].

B.3. EFFECTS General rule: The injured party is entitled to rescind from the time when the representation becomes false [Section 45].

There is fraud and misrepresentation when another person takes the place of the insured in the medical examination (Eguaras v. Great Eastern (1916)).

Exceptions: (1) Incontestability clause; (2) Misrepresentation after contract takes effect; (3) Waiver, made by acceptance of insurer of premium payments despite knowledge of the ground for rescission [Section 45]; (4) A representation of the expectation, belief, opinion, or judgment of the insured, although false, and even if material to the risk [Philamcare Health Systems, Inc. v. CA (2002)]; (5) Representation by insured based on information obtained from third persons (not his agent), provided the insured:

The insurer is not entitled to rescission for misrepresentation of age if the birth date on the policy leads to the conclusion that the insured is beyond the age covered and yet insurer continued to accept payment and had issued the policy. Insurer is deemed estopped (Edillon v. Manila Bankers Life (1982)). Despite not answering the questions and keeping blank certain questions in the application regarding ailments he has suffered, when the insured signed the pension plan application, he adopted it as his ownt he written representations and declarations 82

UP LAW BOC

INSURANCE CODE

embodied in it. Therefore, it is clear from these representations that he concealed his chronic heart ailment and diabetes. [Florendo v. Philam Plans (2012)].

MERCANTILE LAW

contained in the contract or properly incorporated constitute warranties [Carale, 2014]. A warranty may also be made by the insurer.

Concealment

Misrepresentation Sec. 68. A warranty may relate to the past, the present, the future, or to all of these.

Who may commit May be committed by either insured or insurer

Committed only by insured.

Sec. 69. No particular form of words is necessary to create a warranty.

Act involved Passive form

Active form

C.1. KINDS OF WARRANTIES

Insured withholds information of material facts from the insurer; he maintains silence when he ought to speak

Insured makes erroneous statements of facts with the intent of inducing the insurer to enter into the insurance contract

(1) Express warranty, which is an agreement contained in the policy or clearly incorporated therein as part thereof relating to the person or thing insured or to the risk as a fact [Sec. 71]; (2) Implied warranty, which is deemed included in the contract although not expressly mentioned (e.g., implied warranty of seaworthiness of the vessel in marine insurance and implied warranty not to alter the circumstances of the thing insured); (3) Affirmative warranty, which asserts the existence of a fact or condition at the time it is made; (4) Promissory warranty or executory warranty, which is one where the insured stipulates that certain facts or conditions pertaining to the risk shall exist or that certain things with reference thereto shall be done or omitted. It is in the nature of a condition subsequent [Sections 72 and 73].

Materiality Determined by the same rules Effect Same effects on the part of the insured; insurer has right to rescind Injured party is entitled to rescind a contract of insurance on ground of concealment or false representation, whether intentional or not.

C. BREACH OF WARRANTIES Warranty is a statement or promise by the insured set forth in the policy itself or incorporated in it by proper reference, the untruth or nonfulfillment of which in any respect and without reference to whether the insurer was in fact prejudiced by such untruth or non-fulfillment, renders the policy voidable by the insurer [Vance (1951)].

C.2. EFFECT C.2.A. MATERIAL WARRANTY Sec. 74. The violation of a material warranty, or other material provision of the policy, on the part of either the insured or insurer, entitles the other to rescind.

Statements or promises agreed upon by both parties to the insurance contract which are 83

UP LAW BOC

INSURANCE CODE

Breach of a material warranty may either be: (1) Without fraud, in which case, the insurer will be exonerated from the time it occurs. If made during the inception, it will prevent the policy from taking effect [Section 76]. (2) With fraud, in which case, the policy is avoided ab initio.

MERCANTILE LAW Warranty

Representation Nature

Part of the contract

Mere collateral inducement Form

Written on the policy, actually or by reference

Exceptions: (1) Loss occurs before the time of performance of the warranty [Section 73]; (2) The performance becomes unlawful [Section 73]; (3) The performance becomes impossible [Section 73]; (4) Waiver or estoppel.

May be written in the policy or may be oral

Materiality Presumed material

Must be proved to be material

Compliance Must be strictly complied with

C.2.B. IMMATERIAL WARRANTY

Requires only substantial truth and compliance

Applicability of incontestability clause

General rule: Breach of an immaterial provision does not avoid the policy [Section 75].

Does not apply

Exception: Breach of an immaterial provision avoids the policy when the parties stipulate that violation of a particular provision, though immaterial, shall avoid the policy. In effect, the parties converted the immaterial provision into a material one [Sundiang and Aquino (2013)].

Applies

VII. CLAIMS SETTLEMENT AND SUBROGATION A. CONCEPT OF LOSS Loss in insurance law embraces injury or damage [Bonifacio Bros. v. Mora (1967)]

A condition in the policy which requires insured to disclose to the insurer of any insurance that, if violated by the insured, would ipso facto avoid the contract [Pioneer v. Yap (1974)].

Requisites: Recovery upon a loss requires that: (1) The insured must have insurable interest in the subject matter; (2) The interest is covered by the policy; (3) There be a loss; and (4) The loss must be one for which the insurer is liable; (5) Notice and proof of loss must be given if policy is fire insurance or when the same is stipulated in the policy.

Insurer is barred by waiver (or estoppel) to claim violation of the so-called hydrants warranty when, despite knowing fully that only 2 fire hydrants existed (out of the 11 hydrants required), it still issued the insurance policies and received the premiums [Qua Chee Gan v. Law Union (1955)].

84

UP LAW BOC

INSURANCE CODE

A.1. CAUSES OF LOSS

which permanently deprives the insured of its possession in whole or in part (Section 87)

(1) Remote cause is an event preceding another in a causal chain, but separated from it by other events; (2) Proximate cause is “that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred” [Vda. De Bataclan v. Medina (1957)]. (3) Immediate cause is the cause, not the proximate cause, which immediately precedes the loss.

B. NOTICE AND PROOF OF LOSS B.1. NOTICE OF LOSS This refers to the formal notice given the insurer by the insured or claimant under a policy of the occurrence of the loss insured against.

A.2. LIABILITY FOR LOSS Loss for which the insurer is liable

Loss for which the insurer is not liable

Loss the proximate cause of which is the peril insured against [Section 86]

Loss by insured’s willful act

Loss the immediate cause of which is the peril insured against except where the proximate cause is an excepted peril

Loss due to connivance of the insured [Section 89]

Loss through negligence of insured except where there was gross negligence amounting to willful acts

Loss where the excepted peril is the proximate cause

MERCANTILE LAW

B.1.A. PURPOSE Its purpose is to apprise the insurance company so that it may make proper investigation and take such action as may be necessary to protect its interest. In fire insurance, an insurer is exonerated, if notice thereof be not given to him by an insured, or some person entitled to the benefit of the insurance, without unnecessary delay [Section 90]. In other types of insurance, failure to give notice will not exonerate the insurer, unless there is a stipulation in the policy requiring the insured to do so. However, it has been held that formal notice of loss is not necessary if insurer has actual notice of loss.

B.1.B. FORM In the absence of any stipulation in the policy, notice may be given orally or in writing.

Loss caused by efforts to rescue the thing from peril insured against if, during the course of the rescue, the thing is exposed to a peril not insured against,

The notice of loss may be in the form of an informal or provisional claim containing a minimum of information as distinguished from a formal claim which contains the full details of the loss, computations of the amounts claimed, and supporting evidence, together with a

85

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

demand or request for payment [De Leon (2010)].

insurance, or when the same is stipulated in the policy.

B.2. PROOF OF LOSS

Exceptions: (1) For both notice and proof of loss, waiver: (a) Defects in a notice or proof of loss may be waived when such defects, which the insured might remedy, are not specified, without unnecessary delay, to him as ground of objection by the insurer [Section 92]; (b) Delay in presentation to an insurer of notice or proof of loss is waived if caused by any act of his, or if he omits to take objection promptly and specifically upon that ground; (2) For notice of loss, a formal notice of loss is not necessary if insurer has actual notice of loss.

It is the formal evidence given to the insurance company by the insured or claimant, under a policy, of: the occurrence of the loss, the particulars thereof, and the data necessary to enable the company to determine its liability and the amount.

B.2.A. PURPOSE Its purpose is to give the insurer information by which he may determine the extent of his liability but also; to afford him a means of detecting any fraud that may have been practiced upon him, and to operate as a check upon extravagant claims. Like a notice of loss, in the absence of any stipulation in the policy, proof may be given orally or in writing.

C. GUIDELINES SETTLEMENT

ON

CLAIMS

Claims settlement is the indemnification of the loss suffered by the insured. The claimant may be the insured or reinsured, the insurer who is entitled to subrogation, or a third party who has a claim against the insured Where a policy gives the insurer the control of the decision to settle claim or litigate it, the insurer nevertheless is required to observe a certain measure of consideration for the interest of the insured.

The insured is not bound to give such proof as would be necessary in a court of justice; but it is sufficient for him to give the best evidence which he has in his power at the time [Section 91].

B.2.B. RULES FOR RECOVERY General rule: Timely compliance with the notice and proof of loss is a condition precedent to the right to recover if the policy is fire

86

UP LAW BOC

INSURANCE CODE

Claims

MERCANTILE LAW

Life insurance

Non-life insurance

Maturity

Either: (a) Upon death of the person insured; (b) Upon his surviving a specific period; or (c) Otherwise contingently on the continuance or cessation of life [Section 180]

(1) Upon happening of event insured against; and (2) Event must occur within the period specified in policy, otherwise insurer has no liability

Delivery of proceeds

General rule: The proceeds should be delivered immediately upon maturity of policy.

(1) Within 30 days after: (a) Proof of loss is received by insurer; and (b) Ascertainment of loss or damage is made either by agreement between the insured and insurer or by arbitration (2) If ascertainment is not made within 60 days after such receipt by insurer of proof of loss, then loss or damage shall be paid within 90 days after such receipt.

Exceptions: 1. If payable in installments or as an annuity, when such installments or annuities become due; 2. If maturity is upon death, within 60 days after presentation of claim and filing of proof of death of insured. Effect of refusal or failure to pay claim within time prescribed

1.

This entitles the beneficiary to collect interest on the proceeds of policy for the duration of the delay at rate of twice the ceiling prescribed by the monetary board (unless refusal to pay is based on ground that claim is fraudulent) 2. In case damages are awarded, this includes attorney’s fees and other expenses incurred due to delay (plus the interest)

In case of litigation, it is the duty of the Commissioner or the Court to determine whether the claim has been unreasonably denied or withheld. Failure to pay any such claim within the time prescribed shall be considered prima facie evidence of unreasonable delay in payment.

C.1. UNFAIR SANCTIONS

CLAIMS

policies, nor shall any such company engage in unfair claim settlement practices. Any of the following acts by an insurance company, if committed without just cause and performed with such frequency as to indicate a general business practice, shall constitute unfair claim settlement practices: Knowingly misrepresenting to claimants pertinent facts or policy provisions relating to coverage at issue; Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its policies; Failing to adopt and implement reasonable standards for the prompt investigation of

SETTLEMENT;

Sec. 247. No insurance company business in the Philippines shall without just cause, to pay or settle arising under coverages provided

doing refuse, claims by its 87

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

In motor vehicle insurance, action prescribes in one year.

claims arising under its policies; Not attempting in good faith to effectuate prompt, fair and equitable settlement of claims submitted in which liability has become reasonably clear; or Compelling policyholders to institute suits to recover amounts due under its policies by offering without justifiable reason substantially less than the amounts ultimately recovered in suits brought by them.

The cause of action accrues from the rejection of the claim of the insured and not from the time of loss. A stipulation stating that the prescriptive period for filing an action is one year from the happening of loss is void. In such cases, since the stipulation is void and it is upon a written contract, the time limit is ten years from the time the cause of action accrues.

Evidence as to numbers and types of valid and justifiable complaints to the Commissioner against an insurance company, and the Commissioner’s complaint experience with other insurance companies writing similar lines of insurance shall be admissible in evidence in an administrative or judicial proceeding for the purpose of determining whether unfair claim settlement practices have been committed. If it is found, after notice and an opportunity to be heard, that an insurance company has violated this section, each instance of noncompliance may be treated as a separate violation and shall be considered sufficient cause for the suspension or revocation of the company’s certificate of authority

Prescription is essential for the prompt settlement of claims as it demands for suits to be brought while the evidence as to the origin and cause of the loss or destruction has not yet disappeared.

C.3. SUBROGATION Subrogation is a process of legal substitution. The insurer, after paying the amount covered by the insurance policy, steps into the shoes of the insured and avails himself of the latter's rights that exist against the wrongdoer at the time of loss. The insurer becomes entitled to recover from the wrongdoer the amount of the loss it may have paid to the insured.

The following grounds are sufficient cause for the suspension or revocation of the insurer’s certificate of authority [Sec. 247(c)].

The Right of Subrogation stems from Art. 2207 of the Civil Code.

C.2. PRESCRIPTION OF ACTION In the absence of an express stipulation in the policy, it being based on a written contract, the action prescribes in ten years [Article 1144, Civil Code].

Note: Subrogation applies only to property insurance and non-life insurance.

However, the parties may validly agree on a shorter period provided it is not less than one year from the time the cause of action accrues [Section 63].

The subrogee-insurer cannot acquire any claim, security, or remedy the subrogor did not have (or a greater claim than the original insured). In other words, a subrogee cannot succeed to a right not possessed by the subrogor. A subrogee can recover only if the insured likewise

C.3.A. RIGHTS TRANSFERRED

88

UP LAW BOC

INSURANCE CODE

MERCANTILE LAW

VIII. INSURANCE COMMISSIONER

could have recovered. [Sulpicio Lines, Inc. v. First Lepanto-Taisho Ins. Corp. (2005); Lorenzo Shipping Corp. v. Chubb and Sons, Inc. (2004)] The insured can no longer recover from the offended party what was paid to him by the insurer but he can recover any deficiency if the damages suffered are more than what was paid. The deficiency is not covered by the right of subrogation. The insurer must present the policy as evidence to determine the extent of its coverage. [Wallen Phil. Shipping v. Prudential Guarantee (2003)]

A. JURISDICTION ADJUDICATORY POWERS

AND

The Insurance Commissioner has the power to adjudicate disputes relating to an insurance company’s liability to an insured under a policy. A complaint or claim filed with such official is considered an “action” or “suit” the filing of which would have the effect of tolling the suspending the running of the prescriptive period.

C.3.B. WHEN THERE IS NO RIGHT OF SUBROGATION

(1) Concurrent jurisdiction (with regular civil courts) over cases where any single claim does not exceed P5,000,000 involving liability arising from: (a) Insurance contract; (b) Contract of suretyship; (c) Reinsurance contract; (d) Membership certificate issued by members of mutual benefit association [Section 439]; (2) Primary and exclusive jurisdiction over claims for benefits involving pre-need plans where the amount of benefits does not exceed P100,000 [Sec. 55, Pre-Need Code].

(1) Where the insured by his own act releases the wrongdoer or third party liable for the loss or damage; (2) Where the insurer pays the insured the value of the loss without notifying the carrier who has in good faith settled the insured’s claim for loss; (3) Where the insurer pays the insured for a loss or risk not covered by the policy [Pan Malayan Ins. Co. v. CA (1997)]; (4) In life insurance; (5) For recovery of loss in excess of insurance coverage [De Leon (2010)]. The right of subrogation is not dependent upon, nor does it grow out of, any privity of contract or upon written assignment of claim. It accrues simply upon payment of the insurance claim by the insurer [Pan Malayan Ins. Co v. CA (1990)].

For the purpose of proceeding under its adjudicatory powers under the Insurance Code, the Commissioner or any officer thereof designated by him, is empowered to administer oaths and affirmation, subpoena witnesses, compel their attendance, take evidence and require the production of any books, papers, documents or contracts or other records which are relevant or material to the inquiry [Section 439].

Since the insurer can be subrogated to only such rights as the insured may have, should the insured, after receiving payment from the insurer, release the wrongdoer who caused the loss, the insurer loses his rights against the latter. But in such a case, the insurer will be entitled to recover from the insured whatever it has paid to the latter, unless the release was made with the consent of the insurer [Manila Mahogany v. CA (1987)].

Note: However, the Insurance Commission has no jurisdiction to decide the legality of a contract of agency entered into between an 89

UP LAW BOC

INSURANCE CODE

insurance company and its agent. The same is not covered by the term “doing or transacting insurance business” under Section 2, neither is it covered by Section 439, which grants the Commissioner adjudicatory powers [Sundiang and Aquino (2013)].

MERCANTILE LAW

such insurance company, its officers and agents, and no new business shall thereafter be done by such company or for such company by its agents in the Philippines while such suspension, revocation, or disability continues or until its authority to do business is restored by the Commissioner.

B. REVOCATION OF CERTIFICATE OF AUTHORITY

Before restoring such authority, the Commissioner shall require the company concerned to submit to him a business plan showing the company’s estimated receipts and disbursements, as well as the basis therefor, for the next succeeding three years.

The Certificate of Authority issued to the domestic or foreign company by the Commission may be revoked or suspended by the Insurance Commissioner for any of the following grounds: (1) The company is in an unsound condition; (2) That it has failed to comply with the provisions of law or regulations obligatory upon it; (3) That its condition or method of business is such as to render its proceedings hazardous to the public or its policyholders; (4) That its paid-up capital stock, in the case of a domestic stock corporation, or its available cash assets, in the case of a domestic mutual company, or its security deposits, in the case of a foreign company, is impaired or deficient; (5) That the margin of solvency required of such company is deficient. [Section 254]

C. LIQUIDATION COMPANY

OF

INSURANCE

If the company is determined by the Commissioner to be insolvent or cannot resume business, he shall, if public interest requires, order its liquidation [Section 256]. This should be distinguished from a situation where a conservator is appointed when the Commissioner finds that a company is in a state of continuing inability or unwillingness to maintain a condition of solvency or liquidity adequate to protect the policyholders and creditors. The conservator will take charge of the management of the insurance company [Section 255].

The Commissioner is authorized to suspend or revoke all certificates of authority granted to

90

UP LAW BOC

TRANSPORTATION LAWS

MERCANTILE LAW

MERCANTILE LAW

TRANSPORTATION LAWS

91

UP LAW BOC

TRANSPORATION LAWS

I. Common Carriers

MERCANTILE LAW

One engaged in the business of transporting petroleum products from refineries via pipeline is a common carrier. It is engaged in the business of transporting or carrying goods, i.e., petroleum products, for hire as a public employment. It undertakes to carry for all persons indifferently, that is, to all persons who choose to employ its services, and transports the goods by land and for compensation. The fact that it has a limited clientele does not exclude it from the definition of a common carrier [First Phil. Industrial v. CA (1998)].

A. CONCEPT Common carriers are: (1) Persons, corporations, firms or associations; (2) Engaged in the business of carrying or transporting; (3) Passengers or goods or both; (4) By land, water, or air; (5) For compensation; (6) Offering their services to the public [Art. 1732].

The true test for a common carrier is not the quantity or extent of the business actually transacted, or the number and character of the conveyances used in the activity, but whether the undertaking is a part of the activity engaged in by the carrier that he has held out to the general public as his business or occupation. If the undertaking is a single transaction, not a part of the general business or occupation engaged in, as advertised and held out to the general public, the individual or the entity rendering such service is a private, not a common, carrier. The question must be determined by the character of the business actually carried on by the carrier, not by any secret intention or mental reservation it may entertain or assert when charged with the duties and obligations that the law imposes [Teodoro v. Nicolas (2012)].

Carriers are persons or corporations who undertake to transport or convey goods, property or persons, from one place to another, gratuitously or for hire, and are classified as: (1) Private or special carriers, who transport or undertake to transport in a particular instance for hire or reward [Agbayani, Commercial Laws of the Philippines (1987)];

and (2) Common or public carriers, defined in Art. 1732.

Art. 1732 makes no distinction: (1) Between one whose principal business activity is the carrying of persons or goods or both, and one who does such carrying only as an ancillary activity [Fabre v. CA (1996)]; (2) Between a person or enterprise offering transportation service on a regular or scheduled basis and one offering such service on an occasional, episodic, or unscheduled basis [Loadstar Shipping Co., Inc. v. CA (1999)]; (3) Between a carrier offering its services to the general public and one who offers services or solicits business only from a

A common carrier need not have fixed and publicly known routes. Neither does it have to maintain terminals or issue tickets [Asia Lighterage and Shipping v. CA (2003)].

narrow segment of the general population [De Guzman v. CA (1988)].

92

UP LAW BOC

TRANSPORATION LAWS

Common carrier

It is not necessary that the carrier be issued a certificate of public convenience [Loadstar Shipping Co., Inc. v. CA (1999)]. With respect to the issuance of a certificate of public convenience, the issue of kabit system arises. It is an arrangement whereby a person who has been granted a certificate of convenience allows another person who owns motor vehicles to operate under such franchise for a fee [Lita Enterprises, Inc. v. IAC (1984)]. The kabit system is invariably recognized as being contrary to public policy and therefore void and inexistent under Art. 1409. Thus, for the safety of passengers and the public, the registered owner of the vehicle is not allowed to prove that another person has become the owner so that he may be thereby relieved of responsibility [Lim v. CA (2002)].

Private carrier

Availability Holds himself out in common, that is, to all persons who choose to employ him, as ready to carry for hire

Agrees in some special case with some private individual to carry for hire

Binding effect Bound to carry all who offer and tender reasonable compensation for carrying them

Not bound to carry for any reason, such goods as it is accustomed to carry, unless it enters into a special agreement to do so

Diligence required Extraordinary diligence

Ratio: One of the primary factors considered in the granting of a certificate of public convenience for the business of public transportation is the financial capacity of the holder of the license, so that liabilities arising from accidents may be duly compensated. The kabit system renders illusory such purpose and, worse, may still be availed of by the grantee to escape civil liability caused by a negligent use of a vehicle owned by another and operated under his license. If a registered owner is allowed to escape liability by proving who the supposed owner of the vehicle is, it would be easy for him to transfer the subject vehicle to another who possesses no property with which to respond financially for the damage done [Dizon v. Octavio (1955)].

Ordinary diligence

Governing law Civil Code; Code of Commerce and special laws, if not regulated

by

Law on obligations and contracts

the

Civil Code (Art. 1766); law of the country to which the goods are to be transported, if regarding liability for loss, destruction, or deterioration of goods

Regulation A public service, therefore subject to provisions governing common carriers and public utilities.

Not subject regulation as common carrier

MERCANTILE LAW

However, one who has availed of the kabit system is not precluded from filing for damages against another who caused the injury, as the policy against the kabit system will not be defeated by giving such person standing to sue. [Lim v CA (2002))]

to a

93

UP LAW BOC

TRANSPORATION LAWS

MERCANTILE LAW

a prima facie case against the carrier, so that if no explanation is given as to how the injury occurred, the carrier must be held responsible. It is incumbent upon the carrier to prove that the loss was due to accident or some other circumstance inconsistent with its liability [Ynchausti Steamship v. Dexter and Unson (1920)].

B. DILIGENCE REQUIRED B.1. STANDARD OF DILIGENCE Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence, according to all the circumstances of each case: (1) In the vigilance over the goods; and (2) For the safety of the passengers transported by them [Art. 1733].

In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in Arts 1733 and 1755 (Art. 1756).

Extraordinary diligence in the vigilance over the goods is expressed in Art.s 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in Art.s 1755 and 1756.

C. LIABILITIES The obligation of the common carrier consists in the transportation of passengers or goods or both [Art. 1732].

Ratio: As stated in Art. 1733, extraordinary diligence is required because of the nature of the business of common carriers and for reasons of public policy.

The liabilities of a common carrier arises from a contract of carriage. Thus, the cause of action, when there is failure on its part to exert extraordinary diligence according to all circumstances, is for breach of contract [Isaac v. A.L. Ammen (1957)].

Extraordinary diligence: (1) Requires rendering service with the greatest skill and utmost foresight [Agbayani (1987)]; (2) Requires carrying passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances [Art. 1755]; (3) Does not require common carriers to exercise all the care, skill, and diligence of which the human mind can conceive, nor such as will free the transportation of passengers from all possible perils.

In what follows, these liabilities in case of breach, both with respect to vigilance over the goods and safety of the passengers transported, will be discussed.

Note: A common carrier is not an insurer of the safety of its passengers and is not bound absolutely and at all events to carry them safely and without injury [Yobido v. CA (1997)].

B.2. PRESUMPTION OF NEGLIGENCE The mere proof of delivery of goods in good order to a carrier, and of their arrival at the place of destination in bad order, makes out 94

UP LAW BOC

TRANSPORATION LAWS

II. Vigilance over Goods

MERCANTILE LAW

(1) Whether or not the cause of the loss, destruction, or deterioration is included under Art. 1734; (2) If not, whether or not the common carrier exercised extraordinary diligence.

A. LIABILITY, IN GENERAL The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration [Art. 1753].

Thus, in De Guzman v. CA (1988), it was held that hijacking, not being included in Art. 1734, must be dealt with under the provisions of Art. 1735, and thus, the common carrier is presumed to have been at fault or negligent.

Under Philippine law, the liability of the common carrier with respect to vigilance over goods, in general, are as follows: (1) Common carriers are responsible for the loss, destruction, or deterioration of the goods [Art. 1734]. In fact, they are liable even in those cases where the cause of the loss or damage is unknown [Agbayani (1987)]. (2) Moreover, if the goods are lost, destroyed, or deteriorated, common carriers are presumed to have been at fault or to have acted negligently [Art. 1735].

B.1. NATURAL DISASTER OR CALAMITY Requisites: (1) The natural disaster must have been the proximate and only cause of the loss; (2) The common carrier must exercise due diligence to prevent or minimize the loss before, during and after the occurrence of the flood, storm or natural disaster [Art. 1739]; (3) The common carrier must not have negligently incurred delay [Art. 1740];

B. EXEMPTING CAUSES Common carriers are not responsible for the loss, destruction, or deterioration of the goods if the same is due to any of the following causes only: (1) Flood, storm, earthquake, lightning, or other natural disaster or calamity; (2) Act of the public enemy in war, whether international or civil; (3) Act of omission of the shipper or owner of the goods; (4) The character of the goods or defects in the packing or in the containers; (5) Order or act of competent public authority [Art. 1734].

In order that a common carrier may be absolved from liability where the loss, destruction or deterioration of the goods is due to a natural disaster or calamity, it must be shown that such natural disaster or calamity was the proximate and only cause of the loss; there must be an entire exclusion of human agency from the cause of the injury of the loss [Philippine

American General Insurance Co., Inc. v. MGG Marine Services, Inc. (2002)]. Moreover, even in cases where a natural disaster is the proximate and only cause of the loss, a common carrier is still required to exercise due diligence to prevent or minimize loss before, during and after the occurrence of the natural disaster, for it to be exempt from liability under the law for the loss of the goods [Art. 1739]. Fire may not be considered a natural disaster or calamity. This must be so as it arises almost invariably from some act of man or by human

In all other cases of loss, destruction, or deterioration, the common carrier is presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence [Art. 1735]. The analysis, therefore, is two-pronged: 95

UP LAW BOC

TRANSPORATION LAWS

means. It does not fall within the category of an act of God unless caused by lightning or by other natural disaster or calamity. It may even be caused by the actual fault or privity of the carrier [Eastern Shipping Lines v. IAC (1987)].

MERCANTILE LAW

notwithstanding such condition, it is not relieved of liability for loss or injury resulting therefrom [Southern Lines v. CA (1962)].

B.5. ORDER OF COMPETENT AUTHORITY Requisites: (1) There must be an order or act of competent public authority through which the goods are seized or destroyed [Art. 1734]; (2) The said public authority must have had the power to issue the order [Art. 1743].

B.2. ACT OF PUBLIC ENEMY Requisites: (1) The act of the public enemy was committed either in an international or civil war [Art. 1734]; (2) The act of the public enemy must have been the proximate and only cause; (3) The common carrier must exercise due diligence to prevent or minimize the loss before, during and after the act of the public enemy causing the loss, destruction or deterioration of the goods [Art. 1739].

The intervention of the municipal officials was not of a character that would render impossible the fulfillment by the carrier of the obligation. A carrier is not duty bound to obey an illegal order (of a mayor) to dump into the sea the scrap iron. There is absence of sufficient proof that the issuance of the order was attended with such force or intimidation as to completely overpower the will of the carrier’s employees [Ganzon v. CA (1988)).

B.3. ACT OR OMISSION OF SHIPPER OR OWNER The act or omission of the shipper must have been the proximate and only cause of the loss, destruction, or deterioration of the goods. If the shipper or owner merely contributed to the loss, destruction or deterioration of the goods, the proximate cause being the negligence of the common carrier, the latter shall be liable for the damages, which shall, however, be equitably reduced [Art. 1741].

B.6. FORCE MAJEURE Force majeure – in general, has also been invoked as an exempting cause based on Art. 1174, which states that no person shall be responsible for a fortuitous event which could not be foreseen, or which, though foreseen, was inevitable. A fortuitous event has the following characteristics: (1) The cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply with his obligations, must be independent of human will; (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid; (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and

B.4. CHARACTER OF THE GOODS Requisites: (1) The loss, destruction, or deterioration of the goods is due to the character of the goods or defects in the packing or in the containers [Art. 1739]; (2) The common carrier must exercise due diligence to forestall or lessen the loss [Art. 1741]. If the fact of improper packing is known to the carrier or its servants or apparent upon ordinary observation, but it accepts the goods 96

UP LAW BOC

TRANSPORATION LAWS

(4) The obligor must be free from any participation in the aggravation of the injury resulting to the creditor.

MERCANTILE LAW

D. DURATION OF LIABILITY FOR GOODS A contract of transportation is consensual in nature; therefore it is perfected upon the meeting of the minds of the parties [Art. 1305].

There must be an entire exclusion of human agency from the cause of injury or loss.

However, the responsibility to exercise extraordinary diligence begins from the time the goods are unconditionally placed in the possession of and received by the carrier for transportation [Art. 1736].

Moreover, a common carrier may not be absolved from liability in case of force majeure or fortuitous event alone. The common carrier must still prove that it was not negligent in causing the death or injury resulting from an accident [Yobido v. CA (1997)].

The carrier’s responsibility terminates in any of the following cases: (1) When the goods are delivered actually or constructively by the carrier to the consignee or to the person who has a right to receive them [Art. 1736]; (2) When the goods are temporarily unloaded or stored in transit by reason of the exercise of the shipper or owner of his right of stoppage in transitu; (3) When the consignee has been advised of the arrival of the goods at the place of destination and has had reasonable opportunity to remove them or dispose of them from the warehouse of the carrier at the place of destination [Art. 1738].

Loss of a ship and of its cargo, in a wreck due to accident or force majeure must, as a general rule, fall upon their respective owners, except in cases where the wrecking or stranding of the vessel occurred through the malice, carelessness, or lack of skill on the part of the captain or because the vessel put to sea is insufficiently repaired and prepared. In order that the exemption due to force majeure would apply, the carrier must prove that the loss or destruction of the merchandise was due to accident and force majeure and not to fraud, fault, or negligence on the part of the captain or owner of the ship [Tan Chiong Sian v. Inchausti (1912)].

D.1. DELIVERY OF GOODS TO COMMON CARRIERS Under Art. 1736, delivery means unconditionally

C. CONTRIBUTORY NEGLIGENCE The liability of the common carrier shall be equitably reduced when the loss, destruction, or deterioration of the goods when: (1) The negligence of the common carrier was the proximate cause thereof; and (2) The shipper or owner merely contributed to such loss, destruction, or deterioration [Art. 1741].

placing the goods in the possession of the carrier and the carrier receiving them for transportation. Thus, if the common carrier received the goods not for transportation but only for safekeeping, then the duty of extraordinary diligence has not yet started. Unconditionally placing the goods in the possession of the carrier means the shipper cannot get them back from the common carrier at will. 97

UP LAW BOC

TRANSPORATION LAWS

The liability of the carrier as common carrier begins with the actual delivery of the goods for transportation and not merely with the formal execution of a receipt or bill of lading; the issuance of a bill of lading is not necessary to complete delivery and acceptance. Even where it is provided by statute that liability commences with the issuance of the bill of lading actual delivery and acceptance are sufficient to bind the carrier [Cia. Maritima v. Ins. Co. of North America (1964)].

D.2. ACTUAL DELIVERY

OR

MERCANTILE LAW

may be said that the carrier loses control of the goods because of a custom regulation and it is unfair that it be made responsible for what may happen during the interregnum [Lu Do v. Binamira (1957)].

D.3. TEMPORARY STORAGE

UNLOADING

OR

The common carrier’s duty to observe extraordinary diligence over the goods remains in full force and effect even when they are temporarily unloaded or stored in transit, unless the shipper or owner has made use of the right of stoppage in transitu [Art. 1737].

CONSTRUCTIVE

The extraordinary responsibility of the common carrier ends when, subject to Art. 1738, the goods are delivered actually or constructively by the carrier to: (1) The consignee; or (2) The person who has a right to receive them (Art. 1736), such as agents, brokers, and the like.

General rule: Extraordinary diligence over the goods remains even when the goods are temporarily unloaded or stored in transit. Exception: The duty to observe such diligence ceases when shipper or owner made use of the right of stoppage in transitu. Stoppage in transitu is the act by which the unpaid vendor of goods stops their progress and resumes possession of them constructively while they are in the course of transit from him to the purchaser, and not yet actually delivered to the latter [Agbayani (1987)].

Art. 1738 provides that the extraordinary liability of the common carrier continues to be operative even during the time the goods are stored in a warehouse of the carrier at the place of destination, until the consignee has: (1) Been advised of the arrival of the goods; and (2) Had reasonable opportunity thereafter to remove them or otherwise dispose of them.

Basis: Under Art. 1530, when the buyer of the goods becomes insolvent, the unpaid seller who has parted with the possession of the goods at any time while they are in transit, may resume the possession of the goods as he would have had if he had never parted with the possession.

Delivery of the cargo to the customs authorities is not delivery to the consignee or “to the person who has a right to receive them” as contemplated in Art. 1736 because in such case the goods are still in the hands of the government and the owner cannot exercise dominion over them. However, the parties may agree to limit the liability of the carrier considering that the goods still have to go through the inspection of the customs authorities before they are actually turned over to the consignee. This is a situation where it

When the right of stoppage in transitu is exercised, the common carrier holds the goods in the capacity of an ordinary bailee or warehouseman upon the theory that the exercise of the right of stoppage in transitu terminates the contract of carriage. Hence, only ordinary diligence is required [Agbayani (1987)].

98

UP LAW BOC

TRANSPORATION LAWS

MERCANTILE LAW

those conditions such that he had “fairly and freely agreed” to those conditions [Shewaram v. PAL (1966)].

E. STIPULATION FOR LIMITATION OF LIABILITY There are two possible stipulations limiting the liability of the common carrier: (1) Stipulation limiting the common carrier’s liability as to the diligence required; and (2) Stipulation limiting the common carrier’s liability as to the amount of liability.

While a passenger may not have signed the plane ticket, he is nevertheless bound by the provision thereof; such provisions have been held to be part of the contract of carriage and valid and binding upon the passenger regardless of the latter’s lack of knowledge or assent to the regulation. It is what is known as a contract of adhesion wherein one party imposes a ready-made form of contract on the other. The one who adheres to the contract is in reality free to reject it entirely. A contract limiting liability upon an agreed valuation does not offend against the policy of the law forbidding one from contracting against his own negligence [Ong Yiu v. CA (1979)].

An agreement limiting the common carrier’s liability for delay on account of strikes or riots is also valid [Art. 1748].

E.1. AS TO DILIGENCE REQUIRED A stipulation between the common carrier and the shipper or owner limiting the liability of the former for the loss, destruction, or deterioration of the goods to a degree less than extraordinary diligence shall be valid, provided it be: 1. In writing, signed by the shipper or owner; 2. Supported by a valuable consideration other than the service rendered by the common carrier; and 3. Reasonable, just and not contrary to public policy [Art. 1744].

E.3. EFFECT OF STIPULATIONS The effect of these stipulations is subject to the following provisions: (1) An agreement limiting the common carrier’s liability may be annulled by the shipper or owner if the common carrier refused to carry the goods unless the former agreed to such stipulation [Art. 1746]. (2) If the common carrier, without just cause, delays the transportation of the goods or changes the stipulated or usual route, the contract limiting the common carrier’s liability cannot be availed of in case of the loss, destruction, or deterioration of the goods [Art. 1747]. The limitation may be availed of if the delay or change of route was due to a just cause. (3) The fact that the common carrier has no competitor along the line or route, or a part thereof, to which the contract refers shall be taken into consideration on the question of whether or not a stipulation limiting the common carrier’s liability is reasonable, just and in consonance with public policy [Art. 1751].

E.2. AS TO AMOUNT OF LIABILITY A stipulation that the common carrier’s liability is limited to the value of the goods appearing in the bill of lading, unless the shipper or owner declares a greater value, is binding [Art. 1749]. A contract fixing the sum that may be recovered by the owner or shipper for the loss, destruction or deterioration of the goods is valid if: (1) It is reasonable and just under the circumstances; and (2) It has been fairly and freely agreed upon [Art. 1750]. The fact that the conditions are printed at the back of the ticket stub in letters so small that they are hard to read would not warrant the presumption that the [shipper] was aware of 99

UP LAW BOC

TRANSPORATION LAWS

(4) Even when there is an agreement limiting the liability of the common carrier in the vigilance over the goods, the common carrier is disputably presumed to have been negligent in case of their loss, destruction or deterioration [Art. 1752].

F. LIABILITY PASSENGERS

MERCANTILE LAW

FOR

BAGGAGE

OF

Baggage are things that a passenger will bring with him consistent with a temporary absence from where he lives. Passenger’s baggage must have a direct relationship with the passenger who is traveling.

E.4. VOID STIPULATIONS Any of the following or similar stipulations shall be considered unreasonable, unjust and contrary to public policy: (1) That the goods are transported at the risk of the owner or shipper; (2) That the common carrier will not be liable for any loss, destruction, or deterioration of the goods; (3) That the common carrier need not observe any diligence in the custody of the goods; (4) That the common carrier shall exercise a degree of diligence less than that of a good father of a family, or of a man of ordinary prudence in the vigilance over the movables transported; (5) That the common carrier shall not be responsible for the acts or omission of his or its employees; (6) That the common carrier’s liability for acts committed by thieves, or of robbers who do not act with grave or irresistible threat, violence or force, is dispensed with or diminished; (7) That the common carrier is not responsible for the loss, destruction, or deterioration of goods on account of the defective condition of the car, vehicle, ship, airplane or other equipment used in the contract of carriage [Art. 1745].

For instance, a balikbayan box or suitcase is passenger’s baggage. However, 10,000 cans of corned beef is not considered as passenger baggage. They are considered as goods. They are not part of the contract of carriage [of passenger]. A separate contract of carriage [or bill of lading] must be entered into in order to transport them. These goods will then be transported whether or not a person is physically traveling with them [Agbayani (1987)]. There are two kinds of passenger’s baggage, which are governed differently: (1) Passenger baggage in the custody of the passenger (or carry-on luggage); and (2) Passenger baggage not in the custody of the passenger (or checked-in luggage). The liability is greater for baggage that is in the custody of the carrier, or checked-in baggage, as compared to those in the possession of the passenger.

F.1. CHECKED-IN BAGGAGE The provisions of Art.s 1733-1753 shall apply to passenger’s baggage which is not in his personal custody or in that of his employee [Art. 1754]. In other words, the rules governing the responsibility of a common carrier in the transportation of goods just discussed apply. Thus, extraordinary diligence is required.

The following stipulations are also void: (1) Stipulation exempting the common carrier from any and all liability for loss or damage occasioned by its own negligence; (2) Stipulation providing for an unqualified limitation of such liability to an agreed stipulation [Heacock v. Macondray (1921)]. 100

UP LAW BOC

F.2. BAGGAGE PASSENGERS

TRANSPORATION LAWS

IN

POSSESSION

OF

MERCANTILE LAW

(2) The common carrier cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles brought by the passenger. (3) Any stipulation whereby the responsibility of the common carrier as set forth in Articles 1998-2001 is suppressed or diminished shall be void [Art. 2003].

As to baggage other than checked-in baggage, they are governed by Arts 1998, and 2000-2003, concerning the responsibility of hotel-keepers [Art. 1754]. Art. 1998, as applied by analogy, the baggage of passengers in their personal custody or in that of their employees, while being transported, are regarded as necessary deposits. The common carriers are responsible as depositaries, provided that: (1) Notice was given to them, or to their employees, of the effects brought by the passengers; and (2) The passengers take the precautions which the common carrier advised relative to the care and vigilance of their baggage.

III. Safety of Passengers A. LIABILITY, IN GENERAL Under Philippine law, the liability of the common carrier with respect to the safety of passengers, in general, are as follows: (1) A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances [Art. 1755]. (2) In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence [Art. 1756].

In case of loss or injury to the baggage of passengers in their personal custody, or in that of their employees, while being transported, the carrier is liable if the loss or injury is caused by: (1) His servants; (2) His employees; (3) Strangers [Art. 2000]; or (4) A thief or robber done without the use of arms or irresistible force [Art. 2001].

B. VOID STIPULATIONS

The carrier is not liable if loss or injury is caused by: (1) Force majeure [Art. 2000); (2) Theft or robbery with the use of arms or irresistible force [Art. 2001); (3) The acts of the passenger, his family, servants, or visitors; (4) The character of the baggage [Art. 2002).

General rule: The responsibility of a common carrier for the safety of passengers cannot be dispensed with or lessened by stipulation by the posting of notices, by statements on tickets, or otherwise [Art. 1757]. Exception: When a passenger is carried gratuitously, a stipulation limiting the common carrier’s liability for negligence is valid.

The following provisions also figure in determining the liability of the common carrier: (1) The fact that passengers are constrained to rely on the vigilance of the common carrier shall be considered in determining the degree of care required of him [Art. 2000).

Exception to the exception: Even when a passenger is carried gratuitously, a stipulation limiting the common carrier’s liability for willful acts or gross negligence is invalid.

101

UP LAW BOC

TRANSPORATION LAWS

The reduction of fare does not justify any limitation of the common carrier’s liability [Art. 1758].

MERCANTILE LAW

(a) The right to remain on board; (b) If the delay is not due to a fortuitous event or force majeure, with the right to be furnished with food for the account of the vessel; (c) If the delay should exceed ten days: (i) Passengers requesting the same shall be entitled to the return of the fare; and (ii) If it is due exclusively to the fault of the captain or ship agent, they may also demand indemnity for losses and damages.

C. DURATION OF LIABILITY As in the contract of carriage for goods, the perfection of the contract of carriage of passengers does not necessarily coincide with the commencement of the duty of extraordinary diligence. It may occur at the same time or later. Based on jurisprudence, the duty that the carrier of passengers owes to its patrons extends to persons boarding the cars as well as those alighting therefrom [Del Prado v. Manila Railroad (1929)].

A vessel exclusively devoted to the transportation of passengers must take them directly to the port or ports of destination, no matter what the number of passengers may be, making all the stops indicated in its itinerary.

This is also reflected in Art. 17, Warsaw Convention, which applies to international air carriage. It provides that the liability of a common carrier for injury to the passenger lasts from embarkation to disembarkation, including the period when the passenger is on board the aircraft.

C.1. WAITING FOR CARRIER BOARDING OF CARRIER

OR

As to the commencement of the duty of the common carrier, in Del Prado v. Manila Railroad (1929), it was held that the duty extends to persons boarding the cars as well as those alighting therefrom. Thus, it is the duty of common carriers of passengers to stop their conveyances at a reasonable length of time in order to afford passengers an opportunity to board and enter, and they are liable for injuries suffered by boarding passengers resulting from the sudden starting up or jerking of their conveyances while they are doing so [Dangwa Transportation v. CA

In maritime commerce, Art. 698, Code of Commerce relates to the period of the voyage: (1) In case a voyage already begun should be interrupted: (a) The passengers shall be obliged to pay the fare in proportion to the distance covered; and (b) If the interruption is due to a fortuitous event, without right to recover for losses and damages; if caused by the captain exclusively, with a right to indemnity. (2) If the interruption should be caused by the disability of the vessel, and a passenger should agree to await the repairs: (a) He may not be required to pay any increased price of passage; but (b) His living expenses during the stay shall be for his own account. (3) In case of delay in the departure of the vessel, the passengers have:

(1991)). In this connection, however, a person boarding a moving car must be taken to assume the risk of injury from boarding the car under the conditions open to his view, but he cannot fairly be held to assume the risk that the motorman, having the situation in view, will increase the peril by accelerating the speed of the car before he is planted safely on the platform [Del Prado v. Manila Railroad (1929)]. 102

UP LAW BOC

TRANSPORATION LAWS

C.2. ARRIVAL AT DESTINATION

MERCANTILE LAW

vessels are capable of accommodating a bigger volume of both passenger and baggage as compared to the capacity of a regular commuter bus. Consequently, a ship passenger will need at least an hour as is the usual practice, to disembark from the vessel and claim his baggage whereas a bus passenger can easily get off the bus and retrieve his luggage in a very short period of time [Aboitiz Shipping v. CA (1989)].

As to the termination of the duty of the common carrier, it has been held that the relation of carrier and passenger does not cease at the moment the passenger alights from the carrier’s vehicle at a place selected by the carrier at the point of destination, but continues until the passenger has had a reasonable time or a reasonable opportunity to leave the carrier’s premises. What is a reasonable time or a reasonable delay within this rule is to be determined from all the circumstances: (1) A person who, after alighting from a train, walks along the station platform is considered still a passenger; (2) A passenger, who has alighted at his destination and is proceeding by the usual way to leave the company’s premises, but before actually doing so is halted by the report that his brother, a fellow passenger, has been shot, and he in good faith and without intent of engaging in the difficulty, returns to relieve his brother, is deemed reasonably and necessarily delayed and thus continues to be a passenger entitled as such to the protection of the railroad and company and its agents [La Mallorca v. CA (1966)].

The relation of carrier and passenger continues until the latter has been landed at the port of destination and has left the carrier’s premises. Hence, the carrier necessarily would still have to exercise extraordinary diligence in safeguarding the comfort, convenience and safety of its stranded passengers until they have reached their final destination [PAL v. CA (1993)].

D. LIABILITY FOR ACTS OF OTHERS D.1. EMPLOYEES Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former’s employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers. This liability does not cease even upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees [Art. 1759]. Also, this liability cannot be eliminated or limited by stipulation, by the posting of notices, by statements on the tickets or otherwise [Art. 1760].

The reasonableness of time should be made to depend on the attending circumstances of the case, such as the kind of common carrier, the nature of its business, the customs of the place, and so forth, and therefore precludes a consideration of the time element per se without taking into account such other factors. The primary factor to be considered is the existence of a reasonable cause as will justify the presence of the victim on or near the petitioner’s vessel.

Ratio: The servant is clothed with delegated authority and charged with the duty to execute the carrier’s undertaking to carry the passenger safely [Agbayani (1987)]. Also, the defense of diligence in the selection and supervision of employees does not obtain because the liability

In the case of a shipper, the passengers of vessels are allotted a longer period of time to disembark from the ship than other common carriers such as a passenger bus, since such 103

UP LAW BOC

TRANSPORATION LAWS

is not based on quasi-delict, but on culpa contractual. However, there must be a reasonable connection between the act and the contract of carriage.

accord the latter a cause of action against the carrier. The negligence for which a common carrier is held responsible is the negligent omission by the carrier’s employees to prevent the tort from being committed when the same could have been foreseen and prevented by them. Further, when the violation of the contract is due to the willful acts of strangers, as in the instant case, the degree of care essential to be exercised by the common carrier for the protection of its passenger is only that of a good father of a family [Pilapil v. CA (1989)].

Note: The employee must be on duty at the time of the act. It is enough that the assault happens within the course of the employee’s duty. It is no defense for the carrier that the act was done in excess of authority or in disobedience of the carrier’s orders. The carrier’s liability here is absolute in the sense that it practically secures the passengers from assaults committed by its own employees.

D.3. MANUFACTURERS OF EQUIPMENT While the carrier is not an insurer of the safety of the passengers, it should nevertheless be held answerable for the flaws of its equipment, if such flaws were discoverable. The rationale for the common carrier’s liability for manufacturing defects is the fact that the passenger has neither choice nor control over the carrier in the selection and use of the equipment and appliances in use by the carrier. Having no privity whatever with the manufacturer or vendor of the defective equipment, the passenger has no remedy against him [Necesito v. Paras (1958)].

Accordingly, it is the carrier’s strict obligation to select its drivers and similar employees with due regard not only to their technical competence and physical ability, but also, no less important, to their total personality, including their patterns of behavior, moral fibers, and social attitude [Maranan v. Perez (1967)].

D.2. OTHER STRANGERS

PASSENGERS

MERCANTILE LAW

AND

E. CONTRIBUTORY NEGLIGENCE

A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carrier’s employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission [Art. 1763].

The passenger must observe the diligence of a good father of a family to avoid injury to himself [Art. 1762]. The contributory negligence of the passenger does not bar recovery of damages for his death or injuries, if the proximate cause thereof is the negligence of the common carrier, but the amount of damages shall be equitably reduced [Art. 1762].

Note: The law speaks of injuries suffered by the passenger but not death. However, there appears to be no reason why the common carrier should not be held liable under such circumstances. The word “injuries” should be interpreted to include death [Agbayani (1987)].

It is negligence per se for a passenger on a railroad to voluntarily or inadvertently protrude his arm, hand, elbow, or any other part of his body through the window of a moving car beyond the outer edge of the window or outer

Under Art. 1763, a tort committed by a stranger which causes injury to a passenger does not 104

UP LAW BOC

TRANSPORATION LAWS

surface of the car, so as to come in contact with objects or obstacles near the track; no recovery can be had for an injury which but for such negligence would not have been sustained [Isaac v. A. L. Ammen Transportation (1975)]. In this case, the negligence of the passenger was not contributory, but was the proximate cause of the injury.

F. EXTENT DAMAGES

OF

LIABILITY

(1) In case the common carrier acted in good faith: (a) The natural and probable consequence of the breach of the obligation; and (b) Those which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted; (2) In case of fraud, bad faith, malice or wanton attitude, all damages which may be reasonably attributed to the nonperformance of the obligation.

FOR

Damages recoverable from common carriers, both in cases of carriage of passengers and goods, shall be awarded in accordance with Title XVIII concerning Damages.

In the absence of a showing that common carrier’s attention was called to the special circumstances requiring prompt delivery of a passenger’s luggage, the common carrier cannot be held liable for the cancellation of passenger’s contracts [for exhibition of films] as it could not have foreseen such an eventuality when it accepted the luggage for transit [PanAm World Airways v. IAC (1988)].

Art. 2206, on liability, in case of death, for loss of earning capacity, support, and moral damages for mental anguish, shall also apply to the death of a passenger caused by the breach of contract by a common carrier [Art. 1764].

F.2. MORAL DAMAGES

Thus, the damages recoverable are: (1) Actual or compensatory damages; (2) Moral damages; (3) Exemplary damages; (4) Nominal, temperate, and liquidated damages; (5) Attorney’s fees.

F.1. ACTUAL DAMAGES

OR

MERCANTILE LAW

Moral damages, though incapable of pecuniary computation, if they are the proximate result of the common carrier’s wrongful act or omission, may be recovered [Art. 2217]. In cases of breach of contract of carriage, moral damages may be recovered where: (1) The common carrier acted fraudulently; (2) The common carrier acted in bad faith [Art.

COMPENSATORY

2220];

Actual or compensatory damages refer to adequate compensation for such pecuniary loss suffered as duly proved (Art. 2199].

(3) Death of a passenger resulted [Art. 2206]. Bad faith contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose [Air France v. Carrascoso (1966)].

Actual damages are recoverable, including, in case of death, liability for: (1) Loss of earning capacity; and (2) Support for a period not exceeding five years [Art. 2206].

When it comes to contracts of common carriage, inattention and lack of care on the part of the carrier resulting in the failure of the passenger to be accommodated in the class contracted for

Under Art. 2201, the liability for damages include: 105

UP LAW BOC

TRANSPORATION LAWS

amounts to bad faith or fraud which entitles the passenger to the award of moral damages in accordance with Art. 2220 [Ortigas v. Lufthansa (1975)].

litigation may be recovered in the following cases: (1) When exemplary damages are awarded; (2) When the common carrier’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) Where the common carrier acted in gross and evident bad faith in refusing to satisfy the plaintiff’s valid, just and demandable claim; (4) In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered.

Willful and deliberate overbooking on the part of the airline carrier constitutes bad faith. Under Section 3, Economic Regulations No. 7 of the Civil Aeronautics Board, overbooking, which does not exceed ten percent, is not considered as deliberate and therefore does not amount to bad faith [United Airlines v. CA (2001)].

F.3. EXEMPLARY DAMAGES In a contract of carriage, exemplary damages may be awarded if the common carrier acted in wanton, fraudulent, reckless, oppressive, or malevolent manner [Art. 2232].

F.4. NOMINAL, TEMPERATE, LIQUIDATED DAMAGES

MERCANTILE LAW

IV. Bill of Lading A. DEFINITION Bill of lading – a written acknowledgement, signed by the master of a vessel or other authorized agent of the carrier, that he has received the described goods from the shipper, to be transported on the expressed terms to the described place of destination, and to be delivered there to the designated consignee or parties [70 Am. Jur. 2d 924].

AND

Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated by the defendant, may be vindicated or recognized, not for the purpose of indemnifying the plaintiff for any loss suffered by him [Art. 2221]. It may be awarded in case of breach of contract of carriage and in every case where any property right has been invaded [Art. 2222].

It is not, however, indispensable for the creation of a contract of carriage. [Cia. Maritima v. Ins. Co. of North America (1964)].

Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty [Art. 2224].

In the absence of a bill of lading, disputes shall be determined by the legal proofs which the parties may present in support of their respective claims, according to the general provisions established in the Code of Commerce for commercial contracts [Art. 354, Code of Commerce].

Liquidated damages are those damages agreed upon by the parties to a contract, to be paid in case of breach thereof [Art. 2226].

The bill of lading becomes effective usually upon its delivery to and acceptance by the shipper [Aquino, Essentials of Transportation & Public Utilities Law (2011)].

F.5. ATTORNEY’S FEES Under Art. 2208, as applicable to a contract of carriage, attorney’s fees and expenses of

106

UP LAW BOC

TRANSPORATION LAWS

MERCANTILE LAW

C.2. DELIVERY WITHOUT SURRENDER OF BILL OF LADING

In the absence of fraud, concealment, or improper conduct, it is presumed that the stipulations of the bill are known to the shipper, and he is generally bound by his acceptance whether he reads the bill or not [Magellan Mfg. Marketing Corp. v. CA (1991)].

After the contract has been complied with, the bill of lading which the carrier has issued shall be returned to him, and by virtue of the exchange of this title with the thing transported, the respective obligations and actions shall be considered cancelled, unless in the same act the claim which the parties may wish to reserve be reduced to writing, exception being made of the provisions of Art. 366, on period for filing claims [Art. 353, 2nd par., Code of Commerce].

B. THREE-FOLD CHARACTER (1) Receipt as to the quantity and description of the goods shipped; (2) Contract to transport and deliver the goods to the consignee or other person therein designated, on the terms specified in such instrument; and (3) Document of title, which makes it a symbol of the goods.

If, in case of loss or for any other reason whatsoever, the consignee cannot return, upon receiving the merchandise, the bill of lading subscribed by the carrier, he shall give said carrier a receipt for the goods delivered. This receipt produces the same effects as the return of the bill of lading [Art. 353, 3rd par., Code of Commerce].

C. DELIVERY OF GOODS The goods should be delivered to the consignee or any other person to whom the bill of lading was validly transferred or negotiated.

C.3. REFUSAL OF CONSIGNEE TO TAKE DELIVERY

C.1. PERIOD OF DELIVERY Delivery should be made within the period fixed for the delivery of the goods as stipulated in the bill of lading [Art. 370, Code of Commerce].

The consignee may refuse to take delivery in the following cases: (1) If only part of the goods transported should be delivered, when he proves that he cannot make use thereof without the others [Art.

In case of failure to deliver, the carrier shall pay the indemnity agreed upon in the bill of lading, neither the shipper nor consignee being entitled to anything else.

363, Code of Commerce]; (2) When the goods are rendered useless for purposes of sale or consumption in the use for which they are properly destined, in which case the consignee may demand payment of the goods at current market prices [Art. 365, Code of Commerce]; (3) In case part of the goods is in good condition and separation is possible, the consignee may refuse to receive only the damaged goods [Art. 365, Code of

Should there be no period previously fixed, the carrier is bound to forward the goods in the first shipment of the same or similar merchandise which he may make to the point of delivery. Should he not do so, he shall be liable for damages cause by the delay [Art. 358, Code of Commerce].

Commerce];

If no indemnity is fixed and there is delay, the carrier shall be liable for the damages which may have been caused by the delay [Art. 370, Code of Commerce].

(4) Where the delay is through the fault of the carrier [Art. 371, Code of Commerce].

107

UP LAW BOC

TRANSPORATION LAWS

MERCANTILE LAW

In case of dispute as to the condition of the goods, the same shall be examined by experts appointed by the parties, and the third one, in case of disagreement, appointed by the judicial authority. If the persons interested should not agree with the report, said judicial authority shall order the deposits of the merchandise in a safe warehouse, and the parties interested shall make use of their rights in the proper manner. [Art. 367, Code of Commerce].

channels before it could be finalized and endorsed by the institution to the claims department of the shipping company.”

D. PERIOD FOR FILING CLAIMS

The periods mentioned commence upon delivery of cargo to the consignee at the place of destination.

No claim whatsoever shall be admitted against the carrier with regard to the condition in which the goods transported were delivered: (1) After the periods mentioned have elapsed; or (2) After the transportation charges have been paid.

Pursuant to Art. 366, Code of Commerce, a claim, on account of damage found upon opening the packages, must be made against the carrier: (1) Within 24 hours, if the indications of the damage cannot be ascertained from the exterior of the packages (i.e., latent damage); or (2) At the time of receipt, if the indications damage can be so ascertained (i.e., patent damage).

Thus, Art. 366 is limited to cases of claims for damage to goods actually turned over by the carrier and received by the consignee. It does not apply to misdelivery of goods. Failure to file a claim bars recovery (Aquino (2011)]. Ratio: The rule protects the carrier by affording it an opportunity to make an investigation of a claim while the matter is still fresh and easily investigated so as to safeguard itself from false and fraudulent claims [UCPB General Ins. Co., Inc. v. Aboitiz Shipping (2009)].

But the Court in Aboitiz v Insurance Company of North America [GR No. 168402, 6 Aug 2008] made a pro hac vice ruling, in that even if the notice was given more than 24 hrs after the receipt of the goods, the notice requirement was held nevertheless to have been complied with, due to the peculiar circumstances: “Provisions specifying a time to give notice of damage to common carriers are ordinarily to be given a reasonable and practical, rather than a strict construction. We give due consideration to the fact that the final destination of the damaged cargo was a school institution where authorities are bound by rules and regulations governing their actions. Understandably, when the goods were delivered, the necessary clearance had to be made before the package was opened. Upon opening and discovery of the damaged condition of the goods, a report to this effect had to pass through the proper

However, the periods prescribed may be subject to modification by agreement of the parties. [PHILAMGEN v. Sweet Lines, Inc. (1992)].

E. PERIOD FOR FILING ACTIONS E.1. OVERLAND TRANSPORTATION AND COASTWISE SHIPPING The general rules under the Civil Code on extinctive prescription apply. Thus, action for damages must be filed in court: (1) Within 6 years, if a bill of lading was not issued [Art. 1145, Civil Code]. (2) Within 10 years, if a bill of lading was issued [Art. 1146, Civil Code]. 108

UP LAW BOC

E.2. INTERNATIONAL GOODS BY SEA

TRANSPORATION LAWS

CARRIAGE

OF

MERCANTILE LAW

conveyance of goods, in consideration of the payment of freight [Caltex v. Sulpicio Lines (1999)].

Suit must be brought within one year: (1) After delivery of the goods; or (2) From the date when the goods should have been delivered.

Towage is not a charter party. It is a contract for the hire of services by which a vessel is engaged to tow another vessel from one port to another for consideration.

Otherwise, the carrier and the ship shall be discharged from all liability in respect of loss or damage.

In modern maritime law and usage, there are three distinguishable types of charter parties: (1) Bareboat or demise charter; (2) Time charter; and (3) Voyage or trip charter [Litonjua Shipping, Inc. v. National Seamen Board (1989)].

The absence of notice shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the date when the goods should have been delivered [Section 3(6), Carriage of Goods by Sea Act].

Note: Both time and voyage charters are said to be contracts of affreightment, where a common or public carrier is not converted into a private carrier.

The period for filing the claim is one year, in accordance with the Carriage of Goods by Sea Act. The Carriage of Goods by Sea Act, as adopted and embodied in Commonwealth Act No. 65, applies because it is a special law, and, as such, prevails over the general provisions of the Civil Code on prescription of actions

Contract of affreightment – one in which the owner of the vessel leases part or all of its space to haul goods for others. It is a contract for special service to be rendered by the owner of the vessel and under such contract the general owner retains the possession, command and navigation of the ship, the charterer or freighter merely having use of the space in the vessel in return for his payment of the charter hire

[Maritime Agencies & Services, Inc. v. CA (YEAR)].

V. Maritime Commerce

[Puromines, Inc. v. CA (1993)].

A. CHARTER PARTIES

A.1. BAREBOAT OR DEMISE CHARTER

Charter party – a contract by virtue of which the owner or agent of a vessel binds himself to transport merchandise or persons for a fixed price.

In a bareboat or demise charter, the ship owner leases to the charterer the whole vessel, transferring to the latter the entire command, possession and consequent control over the vessel’s navigation, including the master and the crew, who thereby become the charterer’s “servants” [Aquino (2011)].

It is a contract by which the owner or agent of the vessel leases for a certain price the whole or portion of a vessel for the transportation of the goods or persons from one port to another.

To create a demise, the owner of a vessel must completely and exclusively relinquish possession, command and navigation thereof to the charterer, anything short of such a complete

It is a contract whereby the whole or part of the ship is let by the owner to a merchant or other person for a specified time or use for the 109

UP LAW BOC

TRANSPORATION LAWS

MERCANTILE LAW

vessel [Litonjua Shipping Co., Inc. v. National Seamen Board (1989)].

transfer is a contract of affreightment (time or voyage charter party) or not a charter party at all.

B. LIABILITY OF SHIP OWNERS AND SHIPPING AGENTS

Although a charter party may transform a common carrier into a private one, the same, however, is not true in a contract of affreightment on account of the distinctions between a contract of affreightment and a demise or bareboat charter [Puromines, Inc. v. CA (1993)].

The ship owner has possession, control and management of the vessel and the consequent right to direct her navigation and receive freight earned and paid, while his possession continues; he is the person who is primarily liable for damages sustained in the operation of the vessel, based on the provisions of the Code of Commerce.

Note: In a bareboat or demise charter, the common carrier is converted to private carrier.

A ship agent is the person entrusted with the provisioning of a vessel, or who represents her in the port in which she happens to be [Art. 595, Code of Commerce].

The charterer, to whom the owner of the vessel relinquishes, completely and exclusively, the possession, command and navigation of the vessel, by virtue of a demise charter, is considered the owner pro hac vice. He mans and equips the vessel and assumes all responsibility for navigation, management and operation. He thus acts as the owner of the vessel in all important aspects during the duration of the charter [Puromines, Inc. v. CA (1993)].

The ship agent, even though he is not the owner, is liable in every way to the creditor for losses and damages, without prejudice to his right against the owner, the vessel and its equipment and freight [Aquino (2011)].

B.1. LIABILITY FOR ACTS OF CAPTAIN (1) The owner of a vessel and the agent shall be civilly liable for the acts of the captain and for the obligations contracted by the latter to repair, equip, and provision the vessel [Art. 586, Code of Commerce]. (2) The captain shall be liable to the agent, and the latter to third persons: (a) For all the damages suffered by the vessel and his cargo by reason of want of skill or negligence on his part; (b) For all the thefts committed by the crew, reserving his right of action against the guilty parties; (c) For the losses, fines, and confiscations imposed on account of violation of the laws and regulations of customs, police, health, and navigation; (d) For the losses and damages caused by mutinies on board the vessel, or by

A.2. TIME CHARTER Time charter – a contract for the use of a vessel for a specified period of time or for the duration of one or more specified voyages. In this case, the owner of a time-chartered vessel retains possession and control through the master and crew, who remain his employees. What the time charterer acquires is the right to utilize the carrying capacity and facilities of the vessel and to designate her destinations during the term of the charter [Litonjua Shipping Co., Inc. v. National Seamen Board (1989)].

A.3. VOYAGE OR TRIP CHARTER In a voyage charter, the vessel is leased for a single or particular voyage. The master and crew remain the employ of the owner of the 110

UP LAW BOC

TRANSPORATION LAWS

MERCANTILE LAW

B.2. DOCTRINE OF LIMITED LIABILITY (HYPOTHECARY RULE) STATEMENT OF THE RULE

reason of faults committed by the crew in the service and defense of the same, if he does not prove that he made full use of his authority to prevent or avoid them; (e) For those arising by reason of an undue use of powers and non-fulfillment of the obligations which are his; (f) For those arising by reason of his going out of his course or taking a course which he should not have taken without sufficient cause, in the opinion of the officers of the vessel at a meeting with the shippers or supercargoes who may be on board; (g) For those arising by reason of his voluntarily entering a port other than that of his destination; (h) For those arising by reason of nonobservance of the provisions contained in the regulations on situation of lights and maneuvers for the purpose of preventing collisions [Art. 618]. (3) The agent shall also be civilly liable for the indemnities in favor of third persons which arise from the conduct of the captain in the care of the goods which the vessel carried; but he may exempt himself therefrom by abandoning the vessel with all her equipment and the freight he may have earned during the voyage [Art. 587, Code of Commerce].

The real and hypothecary nature of maritime law simply means that the liability of the carrier in connection with losses related to maritime contracts is confined to the vessel, which is hypothecated for such obligations or which stands as the guaranty for their settlement. It has its origin by reason of the conditions and risks attending maritime trade in its earliest years when such trade was replete with innumerable and unknown hazards since vessels had to go through largely uncharted waters to ply their trade. It was designed to offset such adverse conditions and to encourage people and entities to venture into maritime commerce despite the risks and the prohibitive cost of shipbuilding. Thus, the liability of the vessel owner and agent arising from the operation of such vessel were confined to the vessel itself, its equipment, freight, and insurance, if any, which limitation served to induce capitalists into effectively wagering their resources against the consideration of the large profits attainable in the trade [Aboitiz Shipping Corp. v. General Accident Fire and Life Assurance Corp. (1993)]. Thus, under the doctrine of abandonment: (1) The agent shall be civilly liable for the indemnities in favor of third persons which arise from the conduct of the captain in the care of the goods which the vessel carried, but he may exempt himself therefrom by abandoning the vessel with all her equipment and the freight he may have earned during the voyage [Art. 587, Code of

Note: The owner or agent shall not be liable for the obligations contracted by the captain if the latter exceeds his powers and privileges. However, if the amounts claimed were made use of for the benefit of the vessel, the owner or agent shall be liable [Art. 588, Code of Commerce].

Commerce]; (2) The owners of a vessel shall be civilly liable in the proportion of their contribution to the common fund, for the results of the acts of the captain, referred to in Art. 587. Each 111

UP LAW BOC

TRANSPORATION LAWS

part owner may exempt himself from this liability by the abandonment before a notary of the part of the vessel belonging to him [Art. 590, Code of Commerce]. (3) In case of collision, the liability of the ship owner shall be understood as limited to the value of the vessel with all her appurtenances and all the freight earned during the voyage [Art. 837, Code of Commerce]. (4) If the vessel and her freight should be totally lost, by reason of capture or wreck, all rights of the crew to demand any wages whatsoever shall be extinguished, as well as the agent for the recovery of the advances made [Art. 643, Code of Commerce].

MERCANTILE LAW

C. ACCIDENTS AND DAMAGES IN MARITIME COMMERCE C.1. AVERAGES The following shall be considered averages: (1) All extraordinary or accidental expenses incurred during the navigation for the preservation of the vessel or cargo, or both; (2) All damages or deterioration the vessel may suffer from the time she puts to sea from the port of departure until she casts anchor in the port of destination, and those suffered by the merchandise from the time it is loaded in the port of shipment until it is unloaded in the port of consignment [Art. 806, Code of Commerce]. There are two kinds of averages: (1) Particular or simple average; and (2) Gross or general average.

If the ship owner or agent may in any way be held civilly liable at all for injury to or death of passengers arising from the negligence of the captain in cases of collisions or shipwrecks, his liability is merely co-extensive with his interest in the vessel such that a total loss thereof results in its extinction. This is based on the exclusively “real and hypothecary nature” of maritime law, which operates to limit such liability to the value of the vessel, or to the insurance thereon, if any. [Yangco v. Laserna

I. SIMPLE AVERAGE Particular or simple averages shall include all damages and expenses caused to the vessel or cargo that did not inure to the common benefit and profit of all persons interested in the vessel and her cargo [Art. 809, Code of Commerce]. The owner of the goods which gave rise to the expense or suffered the damage shall bear this average [Art. 810, Code of Commerce].

(1941)] Exceptions: (1) Claims under the Workmen’s Compensation Act [Abueg v. San Diego]; (2) Expenses for repairing, provisioning and equipping the vessel; (3) There is an actual finding of negligence on the part of the vessel owner or agent

II. GENERAL AVERAGE General or gross averages shall include all the damages and expenses which are deliberately caused in order to save the vessel, her cargo, or both at the same time, from a real and known risk [Art. 811, Code of Commerce].

[Aboitiz Shipping v. General Accident Fire and Life Assurance Corp. (1993)];

1. REQUISITES

(4) Vessel is insured, to the extent of the insurance proceeds [Vasquez v. CA (1985)]; (5) There was no total loss; (6) Collision between two negligent vessels.

(1) There must be a common danger. This means, that both the ship and the cargo, after it has been loaded, are subject to the same danger, whether during the voyage, or in the port of loading or unloading, that the 112

UP LAW BOC

TRANSPORATION LAWS

danger arises from the accidents of the sea, dispositions of the authority, or faults of men, provided that the circumstances producing the peril should be ascertained and imminent or may rationally be said to be certain and imminent. This last requirement excludes measures undertaken against a distant peril; (2) That for the common safety, part of the vessel or of the cargo or both is sacrificed deliberately; (3) That from the expenses or damages caused follows the successful saving of the vessel and cargo; (4) That the expenses or damages should have been incurred or inflicted after taking proper legal steps and authority [Magsaysay, Inc. v. Agan [1955]].

MERCANTILE LAW

port or roadstead, and the damage resulting therefrom to the goods removed or transferred; (5) The damage suffered by the goods of the cargo through the opening made in the vessel in order to drain her and prevent her sinking; (6) The expenses caused through floating a vessel intentionally stranded for the purpose of saving her; (7) The damage caused to the vessel which it is necessary to break open, scuttle, or smash in order to save the cargo; (8) The expenses of curing and maintaining the members of the crew who may have been wounded or crippled in defending or saving the vessel; (9) The wages of any member of the crew detained as hostage by enemies, privateers, or pirates, and the necessary expenses which he may incur in his imprisonment, until he is returned to the vessel or to his domicile, should he prefer it; (10) The wages and victuals of the crew of a vessel chartered by the month during the time it should be embargoed or detained by force majeure or by order of the Government, or in order to repair the damage caused for the common good; (11) The loss suffered in the value of the goods sold at arrivals under stress in order to repair the vessel because of gross average; (12) The expenses of the liquidation of the average [Art. 811, Code of Commerce]; (13) If in lightening a vessel on account of a storm, in order to facilitate her entry into a port or roadstead, part of her cargo should be transferred to lighters or barges and be lost, the owner of said part shall be entitled to indemnity, as if the loss has originated from a gross average [Art. 817, Code of

The gross or general average shall be borne by those who benefited from the sacrifice. These include the ship owner and the owners of the cargoes that were saved. Contribution may also be imposed on the insurers of the vessel or cargoes that were saved, as well as lenders on bottomry or respondentia.

2. CASES OF GENERAL AVERAGE (1) The goods or cash invested in the redemption of the vessel or cargo captured by enemies, privateers, or pirates, and the provisions, wages, and expenses of the vessel detained during the time the arrangement or redemption is taking place; (2) The goods jettisoned to lighten the vessel, whether they belong to the vessel, to the cargo, or to the crew, and the damage suffered through said act by the goods kept; (3) The cables and masts which are cut or rendered useless, the anchors and the chains which are abandoned in order to save the cargo, the vessel, or both; (4) The expenses of removing or transferring a portion of the cargo in order to lighten the vessel and place her in condition to enter a

Commerce]; (14) If, as a necessary measure to extinguish a fire in a port; roadstead; creek, or bay, it should be decided to sink any vessel, this 113

UP LAW BOC

TRANSPORATION LAWS

MERCANTILE LAW

actual contact [A. Urrutia & Co. v. Baco

loss shall be considered gross average, to which the vessels saved shall contribute.

River Plantation Co. (1913)].

3. PROCEDURE FOR RECOVERY

The steamer’s greater facility of maneuvering over a sail vessel means it has the greater ability to avoid collisions; so as a general rule, when meeting a sailing vessel, whether close hauled or with the wind free, the sail vessel has a right to keep her course, and it is the duty of the steamer to adopt precautions as will avoid the sail vessel… Subject to the general rules of evidence in collision cases as to the burden of proof, in the case of a collision between a steam vessel and a sail vessel, the presumption is against the steam vessel, and she must show that she took the proper measures to avoid a collision. [A. Urrutia & Co. v. Baco River

(1) Assembly and deliberation with the sailing mate and other officers; (2) Resolution of the captain adopted; (3) Hearing of the persons interested. In case an interested person should not be heard, he shall not contribute to the gross average

[Art. 813, Code of Commerce]; (4) Resolution to be entered in the log book, stating the motives and reasons therefore as well as the votes and reason for disagreement [Art. 814, Code of

Commerce]; (5) Minutes to be signed by all the persons present or in urgent cases, the captain; (6) Captain shall deliver one copy of the minutes to the maritime judicial authority of the first port he may make within 24 hours

Plantation Co. [1913)]. When 2 power-driven vessels are meeting head on, or nearly head on, so as to involve risk of collision, each shall alter her course to starboard (right side), so that each may pass on the port (left) side of the other. [Smith Bell and

[Art. 814, Code of Commerce]; (7) Captain shall ratify the minutes under oath [Art. 814, Code of Commerce].

Co. v. CA (1991)].

C.2. COLLISIONS Collision – an impact or sudden contact between two moving vessels [Aquino (2011)].

Note: Liability in collision cases is negligencebased. The person who caused the injury is both civilly and criminally liable [Aquino (2011)].

Allision – the striking of a moving vessel against one that is stationary.

II. SPECIFIC RULES

I. ZONES OF COLLISION

(1) When only one vessel is at fault, the owner of the vessel at fault shall indemnify the losses and damages suffered, after an expert appraisal [Art. 826, Code of

In all collisions between vessels at sea, there exist three divisions or zones of time: (1) The first division covers all the time up to the moment when the risk of collision may be said to have begun; (2) The second division covers the time between the moment when the risk of collision begins and the moment when it has become practically certain; (3) The third zone covers the time between the moment when the collision has become a practical certainty and the moment of

Commerce]; (2) When both vessels are at fault, each shall suffer its own damages, and both shall be solidarily responsible for the losses and damages occasioned to their cargoes [Art.

826, Code of Commerce]; (3) In case of inscrutable fault, that is, if it cannot be decided which of the two vessels was the cause of the collision, each shall bear his own damage and both shall be 114

UP LAW BOC

TRANSPORATION LAWS

jointly responsible for the losses and damages suffered by their cargoes [Art. 828,

MERCANTILE LAW

convenient manner for the voyage, or by reason of some erroneous order of the captain; or (4) Malice, negligence, want of foresight, or lack of skill on the part of the captain is the reason for the act causing the damage [Art. 820, Code of Commerce].

Code of Commerce]; (4) When it is due to a fortuitous event, each vessel and its cargo shall bear its own damages [Art. 830, Code of Commerce]; (5) When, by reason of fortuitous event, a vessel properly anchored and moored collides with another, the injury occasioned shall be looked upon as particular average to the vessel run into [Art. 832, Code of

C.4. SHIPWRECKS Shipwreck – denotes loss or wreck of a vessel at sea as a consequence of running against another vessel or thing at sea or on coast where the vessel is rendered incapable of navigation.

Commerce]; (6) When a third vessel at fault, the owner of the third vessel shall indemnify the losses and damages caused, the captain thereof being civilly liable to said owner [Art. 831, Code of Commerce].

If the wreck was due to malice, negligence or lack of skill of the captain, the owner of the vessel may demand indemnity from said captain. [Art. 841, Code of Commerce].

C.3. ARRIVAL UNDER STRESS C.5. SALVAGE

Arrival under stress is the arrival of a vessel at the nearest and most convenient port instead of the port of destination, if during the voyage the vessel cannot continue the trip to the port of destination.

Salvage – is defined as the service which one person renders to the owner of a ship or goods, by his own labor, preserving the goods or the ship which the owner or those entrusted with the care of them have either abandoned in distress at sea, or are unable to protect and secure.

It is lawful when the inability to continue voyage is due to lack of provisions, well-founded fear of seizure, privateers, pirates, or accidents of the sea disabling it to navigate [Art. 819, Code of Commerce].

It is founded on equity and is compensation for actual services rendered.

It is unlawful when: (1) The lack of provisions should arise from the failure to take the necessary provisions for the voyage, according to usage and custom, or if they should have been rendered useless or lost through bad stowage or negligence in their care; (2) The risk of enemies, privateers, or pirates should not have been well known or manifest, and based on positive and justifiable facts; (3) The injury to the vessel should have been caused by reason of her not being repaired, rigged, equipped, and arranged in a

Three elements are necessary to a valid salvage claim: (a) A marine peril; (b) Service voluntarily rendered when not required as an existing duty or from a special contract; (c) Success, in whole or in part, or that the service rendered contributed to such success [Erlanger & Galinger v. Swedish East Asiatic Co. Ltd (1916)].

115

UP LAW BOC

TRANSPORATION LAWS

MERCANTILE LAW

should file the claim with the carrier within three days from delivery.

D. CARRIAGE OF GOODS BY SEA ACT (COGSA)

Under Section 3(6), COGSA, a failure to file a notice of claim within three days will not bar recovery if it is nonetheless filed within one year. This one-year prescriptive period also applies to the shipper, the consignee, the insurer of the goods or any legal holder of the bill of lading. Inasmuch as the neither the Civil Code nor the Code of Commerce states a specific prescriptive period on the matter, the COGSA may be applied [Belgian Overseas Chartering and Shipping v. Philippine First Ins. Co. (2002)].

D.1. APPLICATION COGSA [Commonwealth Act No. 65] is a special law that governs all contracts of carriage of goods by sea between or to and from the Philippine ports. Its application is according to the following scheme: (1) If the common carrier is coming to the Philippines: (a) First: Civil Code; (b) Second: COGSA (in foreign trade); (c) Third: Code of Commerce; (2) If the private carrier is coming to the Philippines: (a) First: COGSA; (b) Second: Code of Commerce; (c) Third: Civil Code (excluding rules on common carriers); (3) If the private or common carrier is from the Philippines to a foreign country, the law of the foreign country applies [Art. 1753] unless the parties make COGSA applicable.

D.3. PERIOD OF PRESCRIPTION The carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. The absence of a notice shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the date when the goods should have been delivered [Section 3 (6)].

Under Art. 1766, in all matters not regulated by the Civil Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and special laws. Thus, although a special law, COGSA only applies when the Civil Code has no provision dealing with the matter.

COGSA, as a special law, prevails over the general provisions of the Civil Code on prescription of actions [Maritime Agencies & Services, Inc. v. CA (1990)].

D.4. LIMITATION OF LIABILITY Under Section 4(5], COGSA, the limit is set at a maximum of $500 per package or customary freight unit. This is deemed incorporated in the bill of lading even if not mention therein [Eastern Shipping v. IAC (1987)].

D.2. NOTICE OF LOSS OR DAMAGES Notice of claim and the general nature of the loss or damage must be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods [Section 3(6), COGSA].

The declaration made by the shipper stating an amount bigger than $500 per package will make the carrier liable for such bigger amount,

If damage is not patent or cannot be ascertained from the package, the shipper 116

UP LAW BOC

TRANSPORATION LAWS

but only if the amount so declared is the real value of goods [Aquino (2011)].

MERCANTILE LAW

A carriage to be performed by several successive air carriers is deemed, for the purposes of the Convention, to be one undivided carriage, if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts [Art. 1(3), Warsaw Convention].

The Civil Code does not limit the liability of the common carrier to a fixed amount per package. In all matters not regulated by the Civil Code, the right and the obligations of common carriers shall be governed by the Code of Commerce and special laws. Thus, the COGSA, which is suppletory to the provisions of the Civil Code, supplements the latter by establishing a statutory provision limiting the carrier’s liability in the absence of a shipper’s declaration of a higher value in the bill of lading. [Belgian

The carrier is liable for damages for: (1) Death or injury of a passenger if the accident causing it took place: (a) On board the aircraft; (b) In the course of the operations of embarking or disembarking; or (c) When there was delay [Art. 17 and 19,

Overseas v. Philippine First Ins. Co. (2002)].

Warsaw Convention]; (2) Destruction, loss, or damage to any baggage or goods that are checked in, if damage occurred: (a) During the transportation by air; or (b) When there was delay [Section 18 and

VI. The Warsaw Convention A. APPLICABILITY The Warsaw Convention applies to: (1) All international carriage of persons, baggage, or cargo performed by aircraft for reward; (2) Gratuitous carriage by aircraft performed by an air transport undertaking [Art. 1(1), Warsaw Convention].

19, Warsaw Convention]; (3) Delay in the transport by air of passengers, baggage or goods. The carriage by air contemplated comprises the period in which the baggage or goods are in charge of the carrier, whether in an airport or on board an aircraft, or, in the case of a landing outside an airport, in any place whatsoever [Art. 18, Warsaw Convention].

International air carriage or international air transport means transportation by air between points of contact of two high contracting parties, or those countries that have acceded to the Warsaw Convention, wherein the place of departure and the place of destination are situated: (1) Within the territories of two high contracting parties, regardless of whether or not there be a break in the transportation or a transshipment; or (2) Within the territory of a single high contracting party, if there is an agreed stopping place within a territory subject to the sovereignty, mandate or authority of another power, even though the power is not a party to the Convention [Art. 1(2), Warsaw Convention].

B. LIMITATION OF LIABILITY With respect to the following limitations of liability, Art. 23, Warsaw Convention provides that any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract. Also, under Art. 25, Warsaw Convention: (1) The carrier shall not be entitled to avail himself of the provisions which exclude or limit his liability, if the damage is caused by 117

UP LAW BOC

TRANSPORATION LAWS

B.3. LIABILITY BAGGAGE

his willful misconduct or by such default on his part as is considered to be equivalent to willful misconduct; (2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment.

MERCANTILE LAW

FOR

HAND-CARRIED

As regards hand-carried baggage, the liability of the carrier is limited to 5,000 francs per passenger [Art. 22(3), Warsaw Convention]. The Guatemala Protocol of 1971 increased the limit for passengers to $100,000 and to $1,000 for baggage. However, the Supreme Court noted in Santos III v. Northwest Orient Airlines (1992), that the Guatemala Protocol is still ineffective [Sundiang and Aquino (2013)].

Under Art. 29, Warsaw Convention, the right to damages under the WC is extinguished after two years from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. The method of calculating the period of limitation shall be determined by the law of the court seized of the case.

The Warsaw Convention should be deemed a limit of liability only in those cases where the cause of death or injury to person, or destruction, loss or damage to property or delay in its transport is not attributable to or attended by any willful misconduct, bad faith, recklessness, or otherwise improper conduct on the part of any official or employee for which the carrier is responsible; and there is otherwise no special or extraordinary form of resulting injury [Alitalia Airways v. CA (1990)].

B.1. LIABILITY TO PASSENGERS General rule: In the carriage of passengers, the liability of the carrier for each passenger is limited to 250,000 francs passenger. Exception: By special contract, the carrier and the passenger may agree to a higher limit [Art.

C. WILLFUL MISCONDUCT

22(1), Warsaw Convention].

A common carrier may not avail of the limitation in the following cases: (1) Willful misconduct; (2) Default amounting to willful misconduct

B.2. LIABILITY FOR CHECKED BAGGAGE General rule: In the carriage of baggage and goods, the liability of the carrier is limited to 250 francs per kilogram.

[Art. 25, Warsaw Convention]; (3) Accepting passengers without ticket [Art.

3(2), Warsaw Convention];

Exception: The limit does not apply when the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor at delivery [Art. 22(2), Warsaw Convention].

(4) Accepting goods without airway bill or baggage without baggage check. Receipt by the person entitled to the delivery of baggage or cargo without complaint is prima facie evidence that the same have been delivered in good condition and in accordance with the document of carriage [Art. 26, Warsaw Convention].

118

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

MERCANTILE LAW

CORPORATION CODE

119

UP LAW BOC

CORPORATION CODE

I. Corporation

the corporate agents guilty of an act amounting to a crime and never against the corporation itself.

A. DEFINITION

III. DOCTRINE PERSONALITY

Corporation – is an artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence [Sec. 2, unless otherwise indicated, all sections cited herein are from B.P. 68, or the Corporation Code].

B. ATTRIBUTES CORPORATION

MERCANTILE LAW

OF

OF

SEPARATE

Yutivo Sons Hardware v. CTA (1961): A corporation, upon coming into existence, is invested by law with a personality separate and distinct from those persons composing it as well as from any other legal entity to which it may be related.

THE

B.2. CREATED BY OPERATION OF LAW Mere consent of the parties to form a corporation is not sufficient. The State must give its consent either through a special law [in case of government corporations] or a general law (i.e., Corporation Code in case of private corporations).

B.1. AN ARTIFICIAL BEING A corporation exists by fiction of law. Hence, it can act only through its directors, officers and employees. Shipside, Inc. v. CA (2001): Being only a juridical entity, the physical acts of the corporation, like the signing of documents, can be performed only by natural persons duly authorized for the purpose by corporate by-laws or by a special act of the Board of Directors (BOD).

A corporation comes into existence upon the issuance of the certificate of incorporation. Then and only then will it acquire juridical personality to sue and be sued, enter into contracts, hold or convey property or perform any legal act in its own name.

I. MORAL DAMAGES NAPOCOR v. Philipp Brothers Oceanic (2001): Moral damages cannot be awarded in favor of corporations because they do not have feelings and mental state. They may not even claim moral damages for besmirched reputation.

B.3. HAS THE RIGHT OF SUCCESSION Its continued existence during its stated term cannot be affected by any change in the members or stockholders or by any transfer of shares by a stockholder to a 3rd person.

Pilipinas Broadcasting Network v. Ago Medical and Educational Center (2005): However, a corporation can recover moral damages under Art 2219 (7) if it was the victim of defamation.

B.4. HAS THE POWERS, ATTRIBUTES AND PROPERTIES EXPRESSLY AUTHORIZED BY LAW OR INCIDENT TO ITS EXISTENCE

II. CRIMINAL LIABILITY

Monfort Hermanos Agricultural Dev. Corp. v. Monfort III (2004): A corporation has no power except those expressly conferred on it by the Corporation Code and by its articles of incorporation, those which may be incidental to such conferred powers, those that are

West Coast Life Ins. Co. v. Hurd (1914); Time Inc. v. Reyes (1971): Since a corporation as a person is a mere legal fiction, it cannot be proceeded against criminally because it cannot commit a crime in which personal violence or malicious intent is required. Criminal action is limited to 120

UP LAW BOC

CORPORATION CODE

implied from its existence, and those reasonably necessary to accomplish its purposes. In turn, a corporation exercises said powers through its BOD and/or its duly authorized officers and agents.

governing boards by any name other than as board of trustees [Sec. 138].

C. OTHER CORPORATIONS

II.

Classes Corporations

of

C.1. PUBLIC CORPORATION Public corporation – one formed or organized for the government of a portion of the state. Its purpose is for the general good and welfare [Sec. 3, Act 1456].

A. STOCK CORPORATION Stock corporations – corporations which have capital stock divided into shares AND are authorized to distribute to the holders of such shares dividends or allotments of the surplus profits on the basis of shares held [Sec. 3]. It is organized for profit.

Polytechnic University of the Phils. v. CA (2001): Beyond cavil, a GOCC has a personality of its own, distinct and separate from that of the government, and the intervention in a transaction of the Office of the President through the Executive Secretary does not change the independent existence of a government entity as it deals with another government entity.

The governing body of a stock corporation is usually the BOD (except in certain instances, e.g. close corporations).

Boy Scouts of the Philippines v. COA (2011): Not all corporations which are not GOCC are ipso facto to be considered private corporations as there exists another distinct class of corporations or chartered institutions which are otherwise known as “public corporations.” These corporations are treated by law as agencies or instrumentalities of the government which are not subject to the tests of ownership or control and economic viability but to different criteria relating to their public purposes/interests or constitutional policies and objectives and their administrative relationship to the government or any of its Departments or Offices.

Note: A corporation is deemed to have the power to declare dividends. Thus, so long as the corporation has capital stock and there is no prohibition in its Articles of Incorporation or in its by-laws for it to declare dividends, such corporation is a stock corporation [Sec. 43].

B. NON-STOCK CORPORATION All other corporations corporations [Sec. 3].

MERCANTILE LAW

are

non-stock

Non-stock corporation – One where no part of the income is distributable as dividends to its members, trustees, or officers, subject to the provisions of the Code on dissolution [Sec. 87]. Not organized for profit.

C.2. PRIVATE CORPORATION Private corporation – One formed for some private purpose, benefit, aim or end [Sec. 3, Act 1456]; it may be either stock or non-stock, government-owned or controlled or quasipublic.

Its governing body is usually the Board of Trustees (BOT). However, non-stock corporations may, through their articles of incorporation or their by-laws, designate their

121

UP LAW BOC

CORPORATION CODE

Baluyot v. Holganza (2000): The test to determine whether GOCC or private corporation: if a corporation is created by its own charter for the exercise of a public function, then GOCC; if by incorporation under the general corporation law, then private corporation.

MERCANTILE LAW

presiding elder but by the nationality of its members constituting the sect in the Philippines. Thus, the Roman Catholic Church can acquire lands in the Philippines even if it is headed by the Pope.

II. CORPORATION AGGREGATE Corporation aggregate – is a religious corporation incorporated by more than one person.

C.3. CLOSE CORPORATION Close corporation - One whose articles of incorporation provide that: (1) All issued stock, exclusive of treasury shares, shall be held by persons not exceeding 20; (2) All issued stock shall be subject to one or more specified restrictions on transfer; and (3) The corporation shall not list in any stock exchange or make any public offering of any of its stock of any class.

C.6. ELEEMOSYNARY CORPORATION Eleemosynary corporation– One organized for a charitable purpose.

C.7. DOMESTIC CORPORATION Domestic corporation– One formed, organized, or existing under the laws of the Philippines.

C.8. FOREIGN CORPORATION

Notwithstanding the foregoing, a corporation shall not be deemed a close corporation when at least 2/3 of its voting stock or voting rights is owned or controlled by another corporation which is not a close corporation. [Sec. 96]

Foreign corporation – One formed, organized or existing under any laws other than those of the Philippines and whose law allows Filipino citizens and corporations to do business in its own country and state [Sec. 123].

C.4. EDUCATIONAL CORPORATION

C.9. CORPORATION CREATED SPECIAL LAWS OR CHARTER

Educational corporation – One organized for educational purposes [Sec. 106].

BY

Corporation created by special laws or charter Corporations which are governed primarily by the provisions of the special law or charter creating them. Corporation Code has suppletory application [Sec. 4].

C.5. RELIGIOUS CORPORATIONS I. CORPORATION SOLE Corporation sole – is one formed for the purpose of administering and managing, as trustee, the affairs, property and temporalities of any religious denomination, sect, or church, by the chief archbishop, bishop, priest, rabbi, or other presiding elder of such religious denomination, sect or church [Sec.110].

C.10. SUBSIDIARY CORPORATION Subsidiary corporation – One in which control, in the form of ownership of majority of its shares, is in another corporation [the parent corporation].

Roman Catholic Apostolic, etc v. Register of Deeds of Davao City (1957): A corporation sole has no nationality but for the purpose of applying nationalization laws, nationality is determined not by the nationality of its

C.11. PARENT CORPORATION Parent corporation – Its control lies in its power, directly or indirectly, to elect the subsidiary’s

122

UP LAW BOC

CORPORATION CODE

directors thus controlling its management policies.

MERCANTILE LAW

(1) There is an apparently valid statute under which the corporation may be formed; (2) There has been colorable compliance with the legal requirements in good faith; and (3) There has been user of corporate powers, i.e. the transaction of business as if it were a corporation [Campos].

Holding company – a parent company which has no other business aside from the holding of the shares of its subsidiaries, which it controls. Investment company – a parent company which holds shares in other corporations not for the purpose of controlling them but merely to invest therein.

Hall v. Piccio (1950): An association of persons cannot claim to be a corporation if it has not been issued a certificate of incorporation since it cannot claim good faith compliance with the requirements of the law.

C.12 CORPORATION DE JURE Corporation de jure – A corporation organized in accordance with the requirements of the law.

C.14 CORPORATION BY ESTOPPEL C.13. DE FACTO CORPORATION

Corporation by estoppel – Where a group of persons misrepresent themselves as a corporation, they are subsequently estopped from claiming lack of corporate life in order to avoid liability; also, a 3rd party who had dealt with an unincorporated association as a corporation is precluded from denying its corporate existence on a suit brought by the alleged corporation on the contract.

De facto corporation – A corporation where there exists a flaw in its incorporation.

I. RULE ON DE FACTO CORPORATIONS The due incorporation of any corporation claiming in good faith to be a corporation under this Code, and its right to exercise corporate powers, shall not be inquired into collaterally in any private suit to which such corporation may be a party. Such inquiry may be made by the Solicitor General in a quo warranto proceeding [Sec. 20].

I. EFFECTS As to liability All persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all debts, liabilities and damages incurred or arising as a result thereof [Sec. 21].

Grant of juridical personality is an exercise of State power and not a matter of private affair. Consequently, under the de facto corporation doctrine, the defect in the juridical personality of a corporation cannot be inquired into by private individuals, much less used as a defense to avoid claims, except in quo warranto proceedings brought on behalf of the State where the main action is to question the validity or existence of such juridical personality [Villanueva].

II. REQUISITES CORPORATION:

OF

DE

As to the defense of lack of corporate personality When such ostensible corporation is sued, it is precluded from raising the defense of lack of corporate personality [Sec. 21]. International Express Travel v. CA (2000): The doctrine of estoppel applies to a 3rd party only when he tries to escape liability on a contract from which he has benefited on the ground of defective incorporation. It does not apply to a

FACTO

123

UP LAW BOC

CORPORATION CODE

3rd party who is not trying to escape liability from the contract, but rather is the one claiming from the contract.

II. DE FACTO CORPORATION CORPORATION BY ESTOPPEL

B. CONTROL TEST A corporation shall be considered a Filipino corporation if the Filipino ownership of its capital stock is at least 60%, and where the 60-40 Filipino-alien equity ownership is NOT in doubt [SEC Opinion dated 6 November 1989; DOJ Opinion No. 18, s. 1989].

VS.

Where all the requisites of ad de facto corporation are present, the defectively formed corporation will have the status of a De jure corporation in all cases brought by or against it, except only as to the State in a direct proceeding.

Therefore, its shareholdings in another corporation shall be considered to be of Filipino nationality when computing the percentage of Filipino equity of that second corporation [SEC Opinion dated 23 November 1993].

If any of the requisites is absent, then the estoppel doctrine can apply only if under the circumstances, either:

Control test is applied in the following:  Exploitation of natural resources - “Only Filipino citizens or corporations whose capital stock are at least 60% owned by Filipinos can qualify to exploit natural resources.” [Sec. 2, Art. XII, Const.]  Public Utilities - “… no franchise, certificate or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least 60% of whose capital is owned by such citizens. “ [Sec. 11, Art. XII, Const.]

(1) the defendant association is estopped from defending on the ground of its lack of capacity to be sued, or (2) the defendant 3rd party had dealt with the plaintiff as a corporation and is deemed to have admitted its existence.

III. Nationality of Corporations A. PLACE OF INCORPORATION TEST The corporation is a national of the country under whose laws it is organized or incorporated [Sec. 123]. Domestic corporations – organized governed under and by Philippine laws

MERCANTILE LAW

Gamboa v. Teves (2011): The term "capital" in Sec. 11, Article XII of the 1987 Constitution refers only to shares of stock entitled to vote in the election of directors, and thus in the present case only to common shares, and not to the total outstanding capital stock [common and non-voting preferred shares].

and

Foreign corporations – organized under laws other than those of the Philippines and can operate only in the territory of the state under whose laws it was formed. However, they may be licensed to do business here [Campos].

Compliance with the required Filipino ownership of a corporation shall be determined on the basis of outstanding capital stock whether fully paid or not, but only such stocks which are generally entitled to vote are considered.

124

UP LAW BOC

CORPORATION CODE

For stocks to be deemed owned and held by Philippine citizens or Philippine nationals, mere legal title is not enough to meet the required Filipino equity. Full beneficial ownership of the stocks, coupled with appropriate voting rights is essential. Thus, stocks, the voting rights of which have been assigned or transferred to aliens cannot be considered held by Philippine citizens or Philippine nationals.

MERCANTILE LAW

Sec. 2. All covered corporations shall, at all times, observe the constitutional or statutory ownership requirement. For purposes of determining compliance therewith, the required percentage of Filipino ownership shall be applied to both (1) the total number of outstanding shares of stock entitled to vote in the election of directors; AND (2) the total number of outstanding shares of stock, whether or not entitled to vote in the election of directors.

Gamboa v. Teves, (2012): [SC reversed its 2011 ruling] The term “capital” is not limited to voting shares since the constitutional requirement of at least 60 % Filipino ownership applies not only to voting control of the corporation, but also to the beneficial ownership of the corporation. It is therefore imperative that such requirement apply uniformly and across the board to all classes of shares, regardless of nomenclature and category, comprising the capital of a corporation.

C. GRANDFATHER RULE Method used when a domestic corporation has both domestic and foreign stockholders to determine whether or not said corporation is qualified to engage in a partially nationalized business [Campos]. SEC Opinion re: Silahis Intl Hotel (1987): It involves the computation of Filipino ownership of a corporation in which another corporation of partly Filipino and partly foreign equity owns capital stock. The percentage of shares held by the second corporation in the first is multiplied by the latter’s own Filipino equity, and the product of these percentages is determined to be the ultimate Filipino ownership of the subsidiary corporation.

Preferred shares, denied the right to vote in the election of directors, are anyway still entitled to vote on the eight specific corporate matters under Sec. 6. of the Corporation Code. Thus, the 60-40 ownership requirement in favor of Filipino citizens must apply separately to each class of shares, whether common, preferred non-voting, preferred voting or any other class of shares.

The Grandfather Rule must be applied to accurately determine the actual participation, both direct and indirect, of foreigners in a corporation engaged in a nationalized activity or business.

SEC Memorandum Circular No. 8 dated 20 May 2013 Sec. 1. Covered corporations: All corporations engaged in identified areas of activities or enterprises specifically reserved, wholly or partly, to Philippine Nationals by the Constitution, the FIA and other existing laws, amendments thereto and IRRs of said laws except as may otherwise be provided therein.

Redmont Consolidated Mines, Corp v. McArthur Mining, Inc., et al. (2010): Compliance with the constitutional limitation[s] on engaging in nationalized activities must be determined by ascertaining if 60% of the investing corporation’s outstanding capital stock is owned by “Filipino citizens”, or as interpreted, by natural or individual Filipino citizens. If such 125

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

IV. Corporate Juridical Personality

investing corporation is in turn owned to some extent by another investing corporation, the same process must be observed. One must not stop until the citizenships of the individual or natural stockholders of layer after layer of investing corporations have been established, the very essence of the Grandfather Rule.

It begins from the date the SEC issues a certificate of incorporation under its official seal [Sec. 19].

Narra Nickel Mining and Dev. Corp v. Redmont Consolidated Mines Corp. (2014): The Grandfather Rule applies only when the 60-40 Filipino-foreign equity ownership is in doubt [i.e. in cases where the joint venture corporation with Filipino and foreign stockholders with less than 60% Filipino stockholdings (or 59%) invests in another joint venture corporation which is either 60-40% Filipino-alien or 59% less Filipino. Stated differently, where the 60-40 Filipino-foreign equity ownership is not in doubt, the Grandfather Rule will not apply.

A. DOCTRINE OF SEPARATE JURIDICAL PERSONALITY CONCEPT A corporation has a personality separate and distinct from that of its stockholders and members and is not affected by the personal rights, obligations, and transactions of the latter. Merely a legal fiction for purposes of convenience and to sub-serve the ends of justice Land Bank of the Philippines v. CA (2001): A corporation, upon coming into existence, is invested by law with a personality separate and distinct from the persons comprising it as well as from any other legal entity to which it may be related. By this attribute, a stockholder may not, generally, be made to answer for acts or liabilities of said corporation, and vice versa.

Note: Fully/ Partially Nationalized Areas  Retail Trade, Rural Banks, Mass Media  100% Filipino ownership  Interisland shipping industry  75% Filipino ownership  Banks [except Rural Banks]  70% voting stock Filipino ownership [but may be reduced to 60%]  Public utilities, corporations engaged in exploration, exploitation and utilization of natural resources, educational institutions  60% capital stock Filipino ownership

PROPERTY Wise and Co. v. Man Sun Lung (1940): Stockholders have no claim on corporate property as owners, but mere expectancy or inchoate right to the same upon dissolution of the corporation after all corporate creditors have been paid. Such right is limited only to their equity interest (doctrine of limited liability). Although a stockholder’s interest in the corporation may be attached by his personal creditor, corporate property cannot be used to satisfy his claim.

A.1. LIABILITY FOR TORTS AND CRIMES

126

UP LAW BOC

CORPORATION CODE

PNB v. CA (1978): As a separate juridical personality, a corporation can be held liable for torts committed by its officers for corporate purpose.

MERCANTILE LAW

stockholder or an officer of a corporation cannot be made personally liable for corporate liabilities. The mere fact that a stockholder owns majority of the stock of a corporation is not a ground to conclude that said stockholder and corporation are one and the same.

A.2. RECOVERY OF MORAL DAMAGES General rule: A corporation has the power to sue in its corporate name. [Sec. 36]

Suldao v. Cimech System Construction, Inc. (2006): The veil of corporate fiction treats as separate and distinct the affairs of a corporation and its officers and stockholders. As a general rule, a corporation will be looked upon as a legal entity, unless and until sufficient reason to the contrary appears. When the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons. Also, the corporate entity may be disregarded in the interest of justice in such cases as fraud that may work inequities among members of the corporation internally, involving no rights of the public or third persons. In both instances, there must have been fraud and proof of it.

Exception: NAPOCOR v. Philipp Brothers Oceanic (2001): moral damages cannot be awarded in favor of corporations because they do not have feelings and mental state. They may not even claim moral damages for besmirched reputation. Pilipinas Broadcasting Network v. Ago Medical and Educational Center (2005): however, a corporation can recover moral damages under Art 2219 [7] if it was the victim of defamation.

CONSTITUTIONAL RIGHTS Bataan Shipyard and Eng’g Co. v. PCGG (1987): Corporate entities are entitled to due process, equal protection, and protection against unreasonable searches and seizures. However, a corporation is not entitled to the privilege against self-incrimination.

B.1. GROUNDS FOR APPLICATION OF DOCTRINE The corporate fiction may be pierced if used: (1) to defraud the government of taxes due it; (2) to evade payment of civil liability; (3) by a corporation which is merely a conduit or alter ego of another corporation; (4) to evade compliance with contractual obligations; or (5) to evade financial obligation to its employees.

B. DOCTRINE OF PIERCING THE CORPORATE VEIL Koppel Phil v. Yatco (1946): Piercing the veil of corporate entity is merely an equitable remedy, and may be granted only in cases when the corporate fiction is used to defeat public convenience, justify wrong, protect fraud or defend crime [Yutivo Sons v. CTA, 1961] or where the corporation is a mere alter ego or business conduit of a person.

PNB v. Andrada Electric and Engineering Co. (2002): Only in these and similar instances may the veil be pierced and disregarded: to ward off a judgment credit, to avoid inclusion of corporate assets as part of the estate of the decedent, to escape liability arising from a debt, or to perpetuate fraud and/or confuse

Land Bank of the Philippines v. CA (2001): In order to disregard the separate juridical personality of a corporation, the wrongdoing must be clearly and convincingly established. In the absence of any malice or bad faith, a 127

UP LAW BOC

CORPORATION CODE

legitimate issues either to promote or to shield unfair objectives to cover up an otherwise blatant violation of the prohibition against forum shopping.

(2) the parent and subsidiary corporations have common directors or officers; (3) the parent corporation finances the subsidiary; (4) the parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation; (5) the subsidiary has grossly inadequate capital; (6) the parent corporation pays the salaries and other expenses or losses of the subsidiary; (7) the subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to or by the parent corporation; (8) in the papers of the parent corporation or in the statements of its officers, the subsidiary is described as a department or division of the parent corporation or its business or financial responsibility is referred to as the parent corporation’s own; (9) the parent corporation uses the property of the subsidiary as its own; (10)the directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take their orders from the parent corporation in the latter’s interest; and (11) the formal ledger requirements of the subsidiary are not observed.

Seaoil vs Autocorp Group (2008): IIs a corporation liable for the individual acts of its stockholders or members? Is there an exception to the general rule? It is settled that a corporation has a personality separate and distinct from its individual stockholders or members, and is not affected by the personal rights, obligations and transactions of the latter. The corporation may not be held liable for the obligations of the persons composing it, and neither can its stockholders be held liable for its obligation. Of course, this Court has recognized instances when the corporation’s separate personality may be disregarded. However, we have also held that the same may only be done in cases where the corporate vehicle is being used to defeat public convenience, justify wrong, protect fraud, or defend crime. Moreover, the wrongdoing must be clearly and convincingly established. It cannot be presumed.

B.2. TEST APPLICABILITY

IN

MERCANTILE LAW

DETERMINING

General rule: the mere fact that a corporation owns all or substantially all of the stocks of another corporation is not sufficient to justify their being treated as one entity. Exception: the subsidiary is a mere instrumentality of the parent corporation. PNB v. Ritratto Group (2001): Circumstances rendering subsidiary an instrumentality: (1) the parent corporation owns all or most of the subsidiary’s capital stock;

128

UP LAW BOC

CORPORATION CODE

V. Incorporation Organization

and

MERCANTILE LAW

 Novation or the intent to novate the original contract is required to adopt or ratify the pre-incorporation contract. [Campos]  Rizal Light v. PSC and Morong Electric (1968): The Court’s ruling in Cagayan Fishing v. Teodoro Sandiko, that “a corporation should have a full and complete organization and existence as an entity before it can enter into any kind of a contract or transact any business”, is not absolute. One of the exceptions recognized by American courts is that “a contract made by the promoters of a corporation on its behalf may be adopted, accepted or ratified by the corporation when organized”. (2) Acceptance of benefits under the contract with knowledge of the terms thereof. (3) Performance of its obligation under the contract

A. PROMOTER Promoters – are persons who, acting alone or with others, take initiative in founding and organizing the business or enterprise of the issuer and receives consideration therefor [RA 8799, The Securities Regulation Code].

A.1. LIABILITY OF PROMOTER General rule: the promoter binds himself personally and assumes the responsibility of looking to the proposed corporation for reimbursement. Exceptions: (1) Express or implied agreement to the contrary (2) Novation, not merely adoption or ratification of the contract

B. NUMBER AND QUALIFICATIONS OF INCORPORATORS

A.2. LIABILITY OF CORPORATION FOR PROMOTER’S CONTRACTS

[Sec. 20] (1) Natural Persons (2) Any number from 5-15 (3) Majority are residents of the Philippines (4) Each incorporator must own or be a subscriber to at least 1 share of the capital stock of the corporation

General rule: Cagayan Fishing Development Co., Inc. v. Sandiko (1937): A corporation is NOT bound by the contract. A corporation, until organized, has no life and no legal existence. It could not have had an agent [the promoter] who could legally bind it.

C. CORPORATE NAME—LIMITATIONS ON USE OF CORPORATE NAME

Exceptions: A corporation may be bound by the contract if it makes the contract its own by: (1) Adoption or ratification of the ENTIRE contract after incorporation. Note:  Builders’ Duntile Co. v. Dunn Mfg. Co. (1929): A corporation’s power to adopt a contract [by its promoters] must be understood to be limited to such contracts as the corporation itself, after its organization, would be authorized to make.

Corporate name [Sec. 18] (1) Must not be identical or deceptively or confusingly similar to that of any existing corporation or to any other name already protected by law (2) Not patently deceptive, confusing or contrary to existing laws Required by law to include “Corporation” or “Inc.” [Campos] 129

the

word

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

that the limitation to a definite period is an exercise of control in the interest of the public.

Change of corporate name requires the amendment of the Articles of Incorporation: majority vote of the board and the vote or written assent of stockholders holding 2/3 of the outstanding capital stock [Sec. 16].

E. MINIMUM CAPITAL STOCK AND SUBSCRIPTION REQUIREMENTS [Sec 12] Non-stock corporations incorporated under the Corporation Code shall not be required to have a minimum authorized capital stock

Republic Planters Bank v. CA (1992): Amendment of a corporation’s Articles of Incorporation changing its corporate name does not extinguish the personality of the original corporation. It is the same corporation with a different name, and its character is not changed. Consequently, the “new” corporation is still liable for the debts and obligations of the “old” corporation.

Except as provided for by special law and subject to the provisions of Sec. 13 Amount of Capital Stock to be Subscribed and Paid for the Purposes of Incorporation [Sec. 13] (1) At the time of incorporation, at least 25% of the authorized capital stock stated in the Articles of Incorporation should be subscribed; (2) At least 25% of the total subscription must be paid upon subscription; (3) The balance to be payable on  Dates fixed in the subscription contract or  Upon call by the BOD in the absence of fixed dates (4) The paid-up capital can in no case be lower than P5,000.00

D. CORPORATE TERM [Sec. 11] General rule: A corporation shall exist for a period not exceeding 50 years from the date of incorporation Exceptions: (4) Sooner dissolved (5) Period extended  For periods not exceeding 50 years in any single instance by an amendment of the Articles of Incorporation  Extensions may not be made earlier than 5 years prior to the original or subsequent expiry date[s]

F. ARTICLES OF INCORPORATION F.1. NATURE ARTICLES

AND

FUNCTION

OF

 Constitutes the charter of the corporation and sets forth the rules and conditions upon which the association or corporation is founded  Defines the contractual relationships between the State and the corporation, the stockholders and the State, and the corporation and the stockholders

Except: If the SEC determines that there are justifiable reasons for an earlier extension Rationale: Benguet Consolidated Mining Co. v. Pineda (1956): Corporations are creatures of the law through the State legislature. The State is therefore concerned that this privilege be enjoyed by corporations only “under the conditions and not beyond the period that it sees fit to grant; and particularly, that it not be abused in fraud and to the detriment of other parties; and for this reason, it has been ruled

The Articles must be filed with the SEC for the issuance of the Certificate of Incorporation.

130

UP LAW BOC

CORPORATION CODE

F.2. CONTENTS I. CORPORATE NAME

MERCANTILE LAW

written assent of stockholders holding 2/3 of the outstanding capital stock [Sec. 16].

(1) Must not be identical or deceptively or confusingly similar to that of any existing corporation or to any other name already protected by law (2) Not patently deceptive, confusing or contrary to existing laws

Republic Planters Bank v. CA (1992): Amendment of a corporation’s Articles of Incorporation changing its corporate name does not extinguish the personality of the original corporation. It is the same corporation with a different name, and its character is not changed. Consequently, the “new” corporation is still liable for the debts and obligations of the “old” corporation.

Lyceum of the Philippines v. CA (1993): The policy underlying the prohibition against the registration of a corporate name which is “identical or deceptively or confusingly similar” to that of any existing corporation or which is “patently deceptive or patently confusing” or “contrary to existing laws” is: (1) The avoidance of fraud upon the public which would have occasion to deal with the entity concerned; (2) The prevention of evasion of legal obligations and duties, and (3) The reduction of difficulties of administration and supervision over corporations.

II. PURPOSE CLAUSE  Must indicate the PRIMARY and SECONDARY purposes if there is more than one purpose, which should not contradict or change the nature of the corporation [Sec. 14(2)]  Must not be patently unconstitutional, illegal, immoral, and contrary to government rules and regulations [Sec. 17 (2)].  People v. United Medical Service, 200 N.E. 157, cited in Campos: Must not be for the purpose of practicing a profession.  Ulep v. The Legal Clinic (1993): Under the present state of our law and jurisprudence, a corporation cannot be organized for or engage in the practice of law in this country. This interdiction, just like the rule against unethical advertising, cannot be subverted by employing some so-called paralegals supposedly rendering the alleged support services. The remedy for the apparent breach of this prohibition is the concern and province of the Solicitor General who can institute the corresponding quo warranto action, after due ascertainment of the factual background and basis for the grant of the corporate charter, in light of the putative misuse thereof.

To determine whether a given corporate name is "identical" or "confusingly or deceptively similar" with another entity's corporate name, one must evaluate corporate names in their entirety. SEC Memo Circ. No.5, s.2008: The corporate name shall contain the word “Corporation” or “Incorporated”, or the abbreviations “Corp.” or “Inc.” respectively. SEC Memo Circ. No. 12, s. 2008: Business or trade name which is different from the corporate name shall be indicated in the articles of incorporation. A company may have more than one business or trade name. Change of corporate name requires the amendment of the Articles of Incorporation: majority vote of the board and the vote or

III. PRINCIPAL OFFICE  Must be within the Philippines [Sec. 14 (3)] 131

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

Non-stock corporations: trustees

 Articles of Incorporation must specify both province or city or town where it is located  SEC Circular No. 3-2006: A specific address is now required; Metro Manila is no longer allowed.

General rule: Not less than 5 but not more than 15 directors/trustees Exception: Non-stock corporations whose articles or by-laws may provide for more than 15 trustees [Sec. 92]

Chua Gan vs. Samahang Magsasaka (1935): Important for [1] determining venue in an action by or against the corporation, and [2] determining the province where a chattel mortgage of shares should be registered.

Educational non-stock corporations:  trustees may not be less than 5 nor exceed 15  number of trustees shall be in multiples of 5 [Sec. 108]

Hyatt Elevators v. Goldstar Elevators (2005): The residence of a corporation is the place where its principal office is located, as stated in its Articles of Incorporation. To insist that the proper venue is the actual principal office and not that stated in its Articles of Incorporation would indeed create confusion and work untold inconvenience. Enterprising litigants may, out of some ulterior motives, easily circumvent the rules on venue by the simple expedient of closing old offices and opening new ones in another place that they may find well to suit their needs.

NATIONALIZED OR PARTIALLYNATIONALIZED INDUSTRIES: Aliens may be directors but only in such number as may be proportional to their allowable ownership of shares If STOCK corporation:  authorized capital stock in lawful money of the Philippines  the number of shares into which the ACS is divided  If with par value shares, the par value of each share [Sec. 14[8], Sec. 15[7]].  names, citizenship, residences of original subscribers  amount subscribed and paid on each subscription  fact that some or all shares are w/o par value

IV. CORPORATE TERM  Maximum life of 50 years.  Extendible for a period not exceeding 50 years at any one instance. No extension, however, can be made earlier than 5 years before the end of the term. [Sec. 11] Extension requires an amendment of the Articles of Incorporation subject to the exercise of appraisal right by the dissenting stockholder [Sec. 37].

If NON-STOCK:  amount of capital  names, nationalities and residences of contributors  amount contributed by each

V. NAMES, CITIZENSHIP AND RESIDENCES OF INCORPORATORS

VII. AMOUNT PAID BY EACH SUBSCRIBER ON THEIR SUBSCRIPTION, WHICH SHALL NOT BE LESS THAN 25%

VI. NUMBER, NAMES, CITIZENSHIP AND RESIDENCES OF DIRECTORS/TRUSTEES. Stock corporations: directors 132

UP LAW BOC

CORPORATION CODE

OF SUBSCRIBED CAPITAL AND SHALL NOT BE LESS THAN P5,000

MERCANTILE LAW

 2/3 of the members if it be a non-stock corporation.

[Sec 15 (8,9)]

I. LIMITATIONS (1) Requirements imposed by the Code or by special laws (2) Must be for a legitimate purpose (3) Must be approved by the directors/trustees and the stockholders/members through the vote requirement (4) Appraisal Right (5) Both the original and the amended articles together must contain all the provisions required by law to be set out in the articles (6) If the corporation is governed by a special law, the amended articles must be accompanied by a favorable recommendation of the appropriate government agency to the effect that such amendment is in accordance with law [Lopez] (7) Will take effect only  Upon their approval by the SEC by the issuance of a certificate of amended articles  Or from the date of filing with the SEC if not acted upon within 6 months from the date of filing for a cause not attributable to the corporation

VIII. NAME OF TREASURER ELECTED BY THE SUBSCRIBERS [Sec 15(10)]

IX. OTHER MATTERS (1) Classes of shares, as well as preferences or restrictions on any such class [Sec. 6]. (2) Denial or restriction of preemptive right [Sec.39]. (3) Prohibition against transfer of stock which would reduce stock ownership to less than the required minimum in the case of a nationalized business or activity [Sec. 15(11)]. No transfer clause J.G. Summit Holdings, Inc. v. CA (2005): If the foreign shareholdings of a landholding corporation exceeds 40%, it is not the foreign stockholders’ ownership of the shares which is adversely affected but the capacity of the corporation to own land – that is, the corporation becomes disqualified to own land. No law disqualifies a person from purchasing shares in a landholding corporation even if the latter will exceed the allowed foreign equity, what the law disqualifies is the corporation from owning land.

II. PROCEDURE (1) The original and amended articles together shall contain all provisions required by law to be set out in the articles of incorporation (2) The articles, as amended shall be indicated by underscoring the change or changes made (3) A copy shall be submitted to the SEC  Duly certified under oath by the corporate secretary and a majority of the directors or trustees  Stating the fact that the amendment or amendments have been duly approved

F.3. AMENDMENT Amendment of the Articles of Incorporation [Sec. 16] (1) By a majority vote of the BOD or trustees (2) And the vote or written assent of  2/3 of the outstanding capital stock, without prejudice to the appraisal right of dissenting stockholders in accordance with the provisions of this Code, 133

UP LAW BOC

CORPORATION CODE

by the required vote of the stockholders or members (3) The following items are amendable under Sec. 16: (1) Change of name of the Corporation (2) Adding to or changing the purpose/s (3) Change of principal office (4) Change in the number of directors or trustees (5) Increase or decrease in authorized capital stock [subject to Sec. 38]

(4) (5)

(6)

F.4. NON-AMENDABLE ITEMS (7)

The following items state accomplished facts, therefore, cannot be amended: (1) The names, nationalities and residences of the incorporators. Otherwise, an amendment would go against the definition of “incorporators” in Sec. 5 (2) Treasurer-in-trust (3) First set of directors or trustees (4) Original stock subscriptions and paid-in capital (5) Place and date of execution (6) Witnesses [De Leon]

MERCANTILE LAW

subscribed and at least 25% of such has been fully paid in cash or property Bank certificate covering the paid-up capital [Note: Current SEC rules no longer require this if payment for shares is made in cash] Letter authority authorizing the SEC to examine the bank deposit and other corporate books and records to determine the existence of paid-up capital Undertaking to change the corporate name in case there is another person or entity with same or similar name that was previously registered Certificate of authority from proper government agency whenever appropriate like BSP for banks and Insurance Commission for insurance corporations. [Sundiang and Aquino]

G.2. ISSUANCE OF CERTIFICATE OF INCORPORATION BY SEC Effect: Commencement of corporate existence and juridical personality [Sec. 19] Revocation of certificate of incorporation: If incorporators are found guilty of fraud in procuring the same after due notice and hearing [Sec. 6(i), PD 902-A]

Note: Articles of Incorporation must be accompanied by Treasurer’s sworn statement of compliance with Sec. 13 on amount of capital to be subscribed and paid for the purposes of incorporation; otherwise, SEC shall not accept the Articles of Incorporation [Sec. 14].

G.3. GROUNDS FOR DISAPPROVING THE ARTICLES OF INCORPORATION:  Does not substantially comply with form prescribed  Purpose is patently unconstitutional, illegal, immoral, contrary to government rules and regulations  Treasurer’s Affidavit concerning the amount of capital subscribed and or paid is false  Required percentage of ownership of Filipino citizens has not been complied with. [Sec. 17]

G. REGISTRATION AND ISSUANCE OF CERTIFICATE OF INCORPORATION G.1. REGISTRATION OF THE ARTICLES OF INCORPORATION DOCUMENTS TO BE FILED WITH SEC: (1) Articles of Incorporation (2) Treasurer’s Affidavit certifying that 25% of the total authorized capital stock has been 134

UP LAW BOC

CORPORATION CODE

REMEDY in case of rejection - petition for review in accordance with the Rules of Court [Sec. 6, last par., PD 902-A]

MERCANTILE LAW

with the SEC and the election of directors and officers [Campos].

H.1. NATURE AND FUNCTIONS OF BYLAWS

SEC shall give the incorporators reasonable time to correct or modify objectionable portions of the articles or amendment [Sec. 17].

Nature: It is a product of agreement of the stockholders or members [Campos].

H. ADOPTION OF BY-LAWS

Function: It establishes the rules for internal government of the corporation [Campos]. It also regulates the affairs and relationship between and among stockholders, BOD and corporation [Lopez].

By-laws – has traditionally been defined as regulations, ordinances, rules or laws adopted by an association or corporation for its internal governance, including rules for routine matters such as calling meetings [SMC v. Mandaue (2005)].

H.2. REQUISITES OF VALID BY-LAWS Approval requirement: Must be approved by the affirmative vote of the stockholders representing MAJORITY of the outstanding capital stock or majority of members

ADOPTION OF BY-LAWS [Sec. 46] May be done either: (1) Prior to incorporation - approved and signed by all the incorporators and submitted to SEC together with Articles of Incorporation; or (2) After incorporation - within 1 month after receipt of official notice of the issuance of its certificate of incorporation by the SEC.

If filed pre-incorporation: must be approved and signed by all incorporators Record-Keeping: Must be kept in the principal office of the corporation, subject to inspection of stockholders or members during office hours [Sec. 74]

EFFECT OF FAILURE TO FILE THE BYLAWS WITHIN THE PERIOD

Grace Christian High School v. CA (1997): No provision of the by-laws can be adopted if it is contrary to law.

Loyola Grand Villas Homeowners Association v. CA (1997): Does not imply the "demise" of the corporation. By-laws may be required by law for an orderly governance and management of corporations but they are not essential to corporate birth. Nonetheless, failure to file them within the period required by law by no means tolls the automatic dissolution of a corporation.

H.3. BINDING EFFECTS When Binding: ONLY from date of issuance of SEC of certification that by-laws are not inconsistent with the Code Pending approval, they stockholders or corporation

Note: Sec. 22 on the effect of failure to formally organize within 2 years from incorporation, the corporation’s corporate powers cease and the corporation is deemed dissolved. Organization includes: the filing and approval of by-laws

cannot

bind

Effect to 3rd parties: Mere internal rules among stockholders and cannot affect or prejudice 3rd persons who deal with the corporation unless they have knowledge of the same [China Banking Corp v CA (1997)]. 135

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

charitable, cultural, scientific, civic, or similar purposes: Provided, no corporation, domestic or foreign, shall give donations in aid of any political party or candidate or for purposes of partisan political activity; (10) Establish pension, retirement, and other plans for the benefit of its directors, trustees, officers and employees; and (11) Exercise such other powers as may be essential or necessary to carry out its purposes

H.4. AMENDMENT OR REVISION Effected by: majority vote of the members of the board and majority vote of owners of the Outstanding Capital Stock or members, in a meeting duly called for the purpose

I. DELEGATION TO THE BOD OF POWER TO AMEND OR REPEAL BY-LAWS: By vote of stockholders representing 2/3 of the Outstanding Capital Stock or 2/3 of the members

NOTE: The Corporation has implied powers which are deemed to exist because of the following provisions: (1) “Except such as are necessary or incidental to the exercise of the powers so conferred” [Sec. 45] (2) “Such powers as are essential or necessary to carry out its purpose or purposes as stated in the Articles of Incorporation” – catch-all phrase [Sec. 36(11)].

II. HOW DELEGATION REVOKED: Any power delegated to the BOD or trustees to amend or repeal any by-laws or adopt new bylaws shall be considered as revoked whenever stockholders owning or representing a majority of the outstanding capital stock or a majority of the members in non-stock corporations, shall so vote at a regular or special meeting.

VI. Corporate Powers

B. SPECIFIC POWERS, THEORY OF SPECIFIC CAPACITY [SECS. 37-44]

A. GENERAL POWERS, THEORY OF GENERAL CAPACITY [SEC. 36]

(1) Power to Extend or Shorten Corporate Term (2) Power to Increase or Decrease Capital Stock or Incur, Create, Increase Bonded Indebtedness (3) Power to Deny Pre-Emptive Rights (4) Power to Sell or Dispose of Corporate Assets (5) Power to Acquire Own Shares (6) Power to Invest Corporate Funds in Another Corporation or Business (7) Power to Declare Dividends (8) Power to Enter Into Management Contract

(1) (2) (3) (4) (5) (6)

Sue and be sued in its corporate name; Succession; Adopt and use a corporate seal; Amend its Articles of Incorporation; Adopt by-laws; For stock corporations - issue or sell stocks to subscribers and sell treasury stocks; for non-stock corporation - admit members to the corporation; (7) Purchase, receive, take or grant, hold, convey, sell, lease, pledge, mortgage and otherwise deal with such real and personal property, pursuant to its lawful business; (8) Enter into merger or consolidation with other corporations as provided in the Code; (9) Make reasonable donations, including those for the public welfare or for hospital,

B.1. EXTEND OR SHORTEN CORPORATE TERM [SEC. 37]

THE

(1) Must be approved by majority vote of the BOD/ BOT 136

UP LAW BOC

CORPORATION CODE

(2) Ratified at a meeting by shareholders representing 2/3 of the outstanding capital stock/ 2/3 of members of non-stock corporations (3) Written notice of meeting (includes proposed action, time and place of meeting) shall be addressed to each shareholders/member at his place of residence and deposited to the addressee in the post office, or served personally (4) Appraisal right may be exercised by the dissenting stockholder for BOTH extension and shortening of corporate term [See also Sec. 81]

MERCANTILE LAW

(d) any bonded indebtedness to be incurred, created or increased (e) the actual indebtedness of the corporation on the day of the meeting (f) the amount of stock represented at the meeting (g) the vote authorizing the increase or diminution of the capital stock, or the incurring, creating or increasing of any bonded indebtedness (3) prior approval of SEC is required (4) duplicate certificates shall be kept on file in the office of the corporation and the other shall be filed with the SEC, attached in the original articles of incorporation. (a) From and after approval of the SEC of its certificate of filing, the capital stock shall stand increased or decreased and the incurring, creating or increasing of any bonded indebtedness authorized (b) SEC shall not accept for filing any certificate of increase unless accompanied by the sworn statement of the treasurer of the corporation showing: (i) That at least 25% of such increased capital stock have been subscribed and (ii) that at least 25% of the amount subscribed has been paid or that there has been transferred to the corporation property the value of which is equivalent to 25% of the subscription (c) SEC shall not approve any decrease in the capital stock if its effect shall prejudice the rights of corporate creditors (5) Bonds issued by a corporation shall be registered with the SEC

B.2. INCREASE OR DECREASE CAPITAL STOCK OR INCUR, CREATE, INCREASE BONDED INDEBTEDNESS [SEC. 38] (1) Same requirements above from 1-3 (2) A certificate in duplicate must be signed by a majority of the directors of the corporation (countersigned by the chairman and the secretary of the shareholders meeting), setting forth: (a) That requirements of this section have been complied with (b) The amount of the increase or diminution of the capital stock (c) In case of increase, (i) the amount of capital stock or number of shares of no-par stock actually subscribed (ii) names, nationalities and residences of the persons subscribing (iii) the amount of no-par stock subscribed by each (iv) the amount paid by each on his subscription, or the amount of capital stock or number of shares of no-par stock allotted to each stockholder if such increase is for the purpose of making effective stock dividend

B.3. DENY PREEMPTIVE RIGHT [SEC. 39] General Rule: All shareholders of a stock corporation have preemptive right to subscribe 137

UP LAW BOC

CORPORATION CODE

to all issues or disposition of shares of any class, in proportion to their respective shareholdings

Caltex (Phils.) Inc. v. PNOC Shipping and Transport Corp. (2006): While the Corporation Code allows the transfer of all or substantially all the properties and assets of a corporation, the transfer should not prejudice the creditors of the assignor. The only way the transfer can proceed without prejudice to the creditors is to hold the assignee liable for the obligations of the assignor. The acquisition by the assignee of all or substantially all of the assets of the assignor necessarily includes the assumption of the assignor’s liabilities, unless the creditors who did not consent to the transfer choose to rescind the transfer on the ground of fraud. To allow an assignor to transfer all its business, properties and assets without the consent of its creditors and without requiring the assignee to assume the assignor’s obligations will defraud the creditors. The assignment will place the assignor’s assets beyond the reach of its creditors.

Exception: If such right is denied by the Articles of Incorporation or an amendment thereto Pre-emptive right shall not extend to: (1) shares to be issued in compliance with laws requiring stock offerings or minimum stock ownership by the public (2) shares to be issued in good faith with the approval of 2/3 of the stockholders representing outstanding capital stock, in exchange for property needed for corporate purposes or in payment of a previously contracted debt

B.4. SELL OR DISPOSE OF SUBSTANTIALLY ALL ITS ASSETS [SEC. 40] (1) Same requirements from 1-3 as Sec. 37 (2) (3) (4)

(5)

MERCANTILE LAW

above Any dissenting shareholders may exercise his appraisal right Deemed to cover substantially all the corporate property and assets After authorization by the shareholders/members, the BOD/BOT may abandon such sale, lease, exchange, mortgage, pledge or other disposition, subject to the rights of third parties under any contract relating thereto, without further action or approval by the shareholders/ members Corporation is not restricted in its power to sell or dispose of its assets without the authorization of shareholders or members: (a) if the same is necessary in the usual and regular course of business of the corporation or (b) if the proceeds of the sale will be appropriated for the conduct of its remaining business

B.5. ACQUIRE ITS OWN SHARES [SEC. 41] (1) For a legitimate corporate purpose/s, including but not limited to the following: (a) To eliminate fractional shares arising out of stock dividends (b) To collect or compromise an indebtedness to the corporation, arising out of unpaid subscription, in a delinquency sale, and to purchase delinquent shares sold during said sale; and (c) To pay dissenting or withdrawing stockholders (2) Provided there are unrestricted retained earnings in the corporate books to cover the shares purchased or acquired

B.6. INVEST IN ANOTHER CORPORATION OR BUSINESS [SEC. 42] (1) Same requirements from 1-3 as Sec. 37 above 138

UP LAW BOC

CORPORATION CODE

(2) Any dissenting shareholders shall have appraisal right (3) Where the investment is reasonably necessary to accomplish the corporation’s primary purpose, the approval of the shareholders/ members is not necessary

MERCANTILE LAW

(2) Payable in cash, in property, or in stock to all shareholders on the basis of outstanding stock held by them (3) Any cash dividend due on delinquent stock shall first be applied to the unpaid balance on the subscription plus costs and expenses (4) Stock dividends shall be withheld from the delinquent stockholder until his unpaid subscription is fully paid (5) Should be approved by 2/3 of shareholders representing the outstanding capital stock at a regular/special meeting called for that purpose (6) Stock corporations- prohibited from retaining surplus profits in excess of 100% of their paid-in capital stock, except: (a) When justified by definite corporate expansion projects or programs approved by the BOD (b) When the corporation is prohibited under any loan agreement with any financial institution or creditor from declaring dividends without its consent, and such consent has not yet been secured (c) When it can be clearly shown that such retention is necessary under special circumstances obtaining in the corporation

NOTES: If it is for the same purpose, or incidental, or related to its PRIMARY purpose, the board can invest the corporate fund WITHOUT the consent of the stockholders. No appraisal right. If the investment is in another corporation of different business or purpose BUT in pursuance of the SECONDARY purpose, the affirmative vote of majority of the board consented by stockholders/ members is required. If the investment is OUTSIDE the purpose/s for which the corporation was organized, Articles of Incorporation must be amended first, otherwise it will be an Ultra Vires act. De La Rama v. Ma-ao Sugar Central Co. (1969): A private corporation, in order to accomplish its purpose as stated in its articles of incorporation, and subject to the limitations imposed by the Corporation Law, has the power to acquire, hold, mortgage, pledge or dispose of shares, bonds, securities, and other evidences of indebtedness of any domestic or foreign corporation. Such an act, if done in pursuance of the corporate purpose, does not need the approval of the stockholders; but when the purchase of shares of another corporation is done solely for investment and not to accomplish the purpose of its incorporation, the vote of approval of the stockholders is necessary.

Nielson and Co. v. Lepanto Consolidated Mining (1968): Stock dividends cannot be issued to a person who is not a stockholder in payment of services rendered. A corporation may legally issue shares of stock in consideration of services rendered to it by a person not a stockholder, or in payment of its indebtedness. A share of stock issued to pay for services rendered is equivalent to a stock issued in exchange of property, because services is equivalent to property. It is the shares of stock that are originally issued by the corporation and forming part of the capital

B.7. DECLARE DIVIDENDS [SEC. 43] (1) Out of unrestricted retained earnings

139

UP LAW BOC

CORPORATION CODE

that can be exchanged for cash or services rendered, or property. A share of stock coming from stock dividends declared cannot be issued to one who is not a stockholder of a corporation.

B.8. ENTER INTO CONTRACTS [SEC. 44]

MERCANTILE LAW

NOTES 2 general restrictions on the power of the corporation to acquire and hold properties: (1) property must be reasonably and necessarily required by the business (2) that the power shall be subject to the limitations prescribed by other special laws and the Constitution (corporation may not acquire more than 30% of voting stocks of a bank; corporations are restricted from acquiring public lands except by lease of not more than 1000 hectares)

MANAGEMENT

(1) Should be approved by the BOD and by shareholders owning at least the majority of the outstanding capital stock or at least a majority of the members of both the managing and the managed corporation at a meeting duly called for that purpose (2) Should be approved by the 2/3 of stockholders owning outstanding capital stock/members of the managed corporation when: (1) A stockholder or stockholders representing the same interest of both the managing and managed corporations own more than 1/3 of the total outstanding capital stock entitled to vote of the managing corporation; or (2) A majority of the members of the BOD of the managing corporation also constitute a majority of the BOD of the managed corporation (3) No management contract shall be entered into for a period longer than 5 years for any one term (4) 1-3 above applies to any contract whereby a corporation undertakes to manage or operate all or substantially all of the business of another corporation, whether such are called service contracts, operating agreements or otherwise (5) Service contracts or operating agreements which relate to exploration, development, exploitation or utilization of natural resources may be entered into for such periods as may be provided in the pertinent laws and regulations

B.9. ULTRA VIRES ACTS Definition

Ultra Vires acts are those acts which a corporation is not empowered to do or perform because they are not conferred by its Articles of Incorporation or by the Corporation Code, or not necessary or incidental to the exercise of the powers so conferred [Sec. 45]. Types of Ultra Vires Acts (1) Acts done beyond the powers of the corporation as provided in the law or its articles of incorporation; (2) Acts or contracts entered into in behalf of a corporation by persons who have no corporate authority (Note: This is technically Ultra Vires acts of officers and not of the corporation); (3) Acts or contracts, which are per se illegal as being contrary to law. [Villanueva]

i. APPLICABILITY DOCTRINE

OF

ULTRA VIRES

Montelibano v. Bacolod-Murcia Milling Co., Inc.: It is a question, therefore, in each case of the logical relation of the act to the corporate purpose expressed in the charter. If that act is one which is lawful in itself, and not otherwise prohibited, is done for the purpose of serving corporate ends, and is reasonably tributary to the promotion of those ends, in a substantial, and not in a remote and fanciful sense, it may 140

UP LAW BOC

CORPORATION CODE

fairly be considered within the charter powers. The test to be applied is whether the act in question is in direct and immediate furtherance of the corporation’s business, fairly incident to the express powers and reasonably necessary to their exercise. If so, the corporation has the power to do it; otherwise, not.

is contrary to law, morals, or public policy or public duty, and are, like similar transactions between the individuals void. They cannot serve as basis of a court action, nor require validity. Ultra Vires acts on the other hand, or those which are not illegal and void ab initio, but are not merely within the scope of the articles of incorporation, are merely voidable and may become binding and enforceable when ratified by the stockholders.

ii. CONSEQUENCES OF ULTRA VIRES ACTS

Remedies in Case of Ultra Vires Acts (1) State (a) Dissolution of the corporation thru a quo warranto proceeding (b) Injunction (c) Suspension or revocation of the certificate of registration by the SEC (2) Stockholders (a) Injunction (b) Derivative suit (c) Ratification (except when a 3rd party is prejudiced or the act is illegal) (3) Creditors (a) Nullification of contract in fraud of creditors

(1) Executed contract – courts will not set aside or interfere with such contracts; (2) Executory contracts – no enforcement even at the suit of either party (void and unenforceable); (3) Partly executed and partly executory – principle of “no unjust enrichment at expense of another” shall apply; (4) Executory contracts apparently authorized but Ultra Vires – the principle of estoppel shall apply.

Ultra Vires Acts

Illegal Acts

Not necessarily unlawful, but outside the powers of the corporation Can be ratified Can bind the parties if wholly or partly executed

Unlawful; against law, morals, public policy, and public order Cannot be ratified Cannot bind the parties

MERCANTILE LAW

C. HOW (CORPORATE EXERCISED

POWERS)

C.1. BY THE SHAREHOLDERS i. CORPORATE ACTS REQUIRING APPROVAL OF STOCKHOLDERS OR MEMBERS (VOTING AND NON-VOTING SHARES)

Seaoil vs. Autocorp Group (2008, Nachura): An Ultra Vires act is distinguished from illegal act, the former being voidable which may be enforced by performance, ratification, or estoppel, while the latter is void and cannot be validated.

General Rule: Vote necessary to approve a particular corporate act as provided in this Code shall be deemed to refer only to stocks with voting rights [Sec. 6]

Pirovano v. De La Rama Steamship Co. (1954): A distinction should be made between corporate acts or contracts which are illegal and those which are merely Ultra Vires. The former contemplates the doing of an act which

Exceptions [Sec. 6] Voting and non-voting shares shall be entitled to vote in the following cases: 141

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

C.2. BY THE BOD

(1) Amendment of Articles of Incorporation (2) Adoption, Amendment and Repeal of ByLaws [Sec. 48] (3) Sale, Lease, Mortgage or Other Disposition of Substantially all corporate assets [Sec. 40] (4) Incurring, Creating or Increasing Bonded Indebtedness [Sec. 38] (5) Increase or Decrease of Capital Stock [Sec. 38] (6) Merger and Consolidation [Sec. 76-80] (7) Investment of funds in another corporation or business or for any purpose other than the primary purpose for which it was organized [Sec. 42]

BOARD AS REPOSITORY CORPORATE POWERS

OF

General Rule (Doctrine Of Centralized Management): The corporate powers of the corporation shall be exercised, all business conducted, and all property of controlled and held by the BOD or trustees. [Sec. 23] Exceptions: (1) Executive Committee duly authorized in the by-laws [Sec. 35]; (2) A contracted manager which may be an individual, a partnership, or another corporation. NOTE: In case the contracted manager is another corporation, the special rule in Sec. 44 applies. (3) In case of close corporations, the stockholders may manage the business of the corporation rather than by a BOD, if the Articles of Incorporation so provide [Sec. 97]

Requisites [Sec. 42] (Asked in 95): (a) Approval of majority of the BOD or trustees (b) Ratification by the stockholders representing at least 2/3 of the Outstanding Capital Stock or the members at a meeting duly called for the purpose (c) Written notice addressed to each stockholder or member at his place of residence as shown on the books of the corporation (d) Appraisal right available to dissenting stockholders or members

Spouses Constantine Firme v. Bukal Enterprises and Development Corporation (2003): The power to purchase real property is vested in the BOD or trustees. While a corporation may appoint agents to negotiate for the purchase of real property needed by the corporation, the final say will have to be with the board, whose approval will finalize the transaction.

(8) Dissolution of the Corporation [Sec. 118121]

ii. CORPORATE ACTS REQUIRING APPROVAL OF STOCKHOLDERS OR MEMBERS (VOTING SHARES ONLY)

Requisites of a VALID Corporate Act by the BOD [Sec. 25]: (a) The Board must act as a BODY in a meeting. (Note: Current SEC regulations allow BOD meetings by teleconferencing or videoconferencing) (b) There must be a VALIDLY constituted meeting.

(1) Declaration of Stock Dividends [Sec. 43] (2) Management Contracts [Sec. 44] (3) Fixing the Consideration of No-Par shares [Sec. 62] (4) Fixing the Compensation of Directors [Sec. 30]

142

UP LAW BOC

CORPORATION CODE

(c) Their act must be supported by a MAJORITY OF THE QUORUM duly assembled (Exception: Election of officers requires a vote of majority of ALL the members of the board) (d) The act must be within the powers conferred to the Board.

considered as a corporate office. Thus, the creation of an office pursuant to or under a byLaw enabling provision is not enough to make a position a corporate office. Guerrea v. Lezama (1958), the first ruling on the matter, held that the only officers of a corporation were those given that character either by the Corporation Code or by the By-Laws; the rest of the corporate officers could be considered only as employees or subordinate officials. A different interpretation can easily leave the way open for the BOD to circumvent the constitutionally guaranteed security of tenure of the employee by the expedient inclusion in the By-Laws of an enabling clause on the creation of just any corporate officer position.

C.3. BY THE OFFICERS Corporate Officer Position is provided for in the by-laws or under the Corporation Code RTC has jurisdiction in case of labor dispute

MERCANTILE LAW

Corporate Employee Employed through the action of the managing officer of the corporation NLRC has jurisdiction in case of labor disputes

Real v. Sangu Philippines (2011): “An ‘office’ is created by the charter of the corporation and the officer is elected (or appointed) by the directors or stockholders”

i. WHO ARE CORPORATE OFFICERS [SEC. 25] (1) President – must be a director; (2) Treasurer – may or may not be a director; as a matter of sound corporate practice, must be a resident and citizen of the Phil (SEC opinion) (3) Secretary – need not be a director unless required by the by-laws; must be a resident and citizen of the Philippines; and (4) Other officers as may be provided in the by-laws.

(Easycall Communications Phils., Inc. v. King, 2005). “Corporate officers’ in the context of PD No. 902-A are those officers of the corporation who are given that character by the Corporation Code or by the corporation’s by-laws. There are three specific officers whom a corporation must have under Sec. 25 of the Corporation Code. These are the president, secretary and the treasurer. The number of officers is not limited to these three. A corporation may have such other officers as may be provided for by its by-laws like, but not limited to, the vicepresident, cashier, auditor or general manager. The number of corporate officers is thus limited by law and by the corporation’s by-laws” (Garcia v. Eastern

NOTE Any 2 or more positions may be held concurrently by the same person, EXCEPT that no one shall act as president and secretary or as president and treasurer at the same time. Additional qualifications of officers may be provided for in the by-laws [Sec. 47(5)]

Telecommunications Philippines, Inc., 2009).

Matling Industrial and Commercial Corp. v. Coros (2010): Conformably with Sec. 25 of the Corporation Code, a position must be expressly mentioned in the by-Laws in order to be

ii. DISQUALIFICATIONS [SEC. 27]

143

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

(1) Convicted by final judgment of an offense punishable by imprisonment for a period exceeding 6 years (2) Convicted by final judgment of a violation of the Corporation Code committed within 5 years prior to the date of his election or appointment. This includes violations of rules and regulations issued by the SEC to implement the provisions of the Corporation Code.

to which creditors have a right to look for satisfaction of their claims."

III. AUTHORITY OFFICERS

This doctrine is the underlying principle in the procedure for the distribution of capital assets, embodied in Corporation Code, which allows the distribution of corporate capital only in three instances: (1) amendment of the Articles of Incorporation to reduce the authorized capital stock, (2) purchase of redeemable shares by the corporation, regardless of the existence of unrestricted retained earnings, and (3) dissolution and eventual liquidation of the corporation.

OF

Ong Yong v. Tiu (2003): "The Trust Fund Doctrine, first enunciated by this Court in the 1923 case of Philippine Trust Co. v. Rivera' provides that subscriptions to the capital stock of a corporation constitute a fund to which the creditors have a right to look for the satisfaction of their claims.

CORPORATE

A person dealing with a corporate officer is put on inquiry as to the scope of the latter’s authority but an innocent person cannot be prejudiced if he had the right to presume under the circumstances the authority of the acting officers.

Associated Nachura):

Bank

v.

Pronstroller

(2008,

Q: What is the Doctrine of Apparent Authority? A: If a corporation knowingly permits one of its officers, or any other agent, to act within the scope of an apparent authority, it holds him out to the public as possessing the power to do those acts; the corporation will, as against anyone who has in good faith dealt with it through such agent, be estopped from denying the agent’s authority.

Furthermore, the doctrine is articulated in Sec. 41 on the power of a corporation to acquire its own shares and in Sec. 122 on the prohibition against the distribution of corporate assets and property unless the stringent requirements therefore are complied with. Boman Environmental Development Corporation v. CA (1988): Trust Fund Doctrine means that the capital stock, properties and other assets of a corporation are regarded as equity in trust for the payment of corporate creditors. Stated simply, the trust fund doctrine states that all funds received by the corporation in payment of the shares of stock shall be held in trust for the corporate creditors and other stockholders of the corporation. Under such doctrine no fund shall be used to buy back the issued shares of stock except only in instances specifically allowed by the Corporation Code.

D. TRUST FUND DOCTRINE Philippine Trust Co. v. Rivera (1923): Under Sec. 43 of Code, the corporation can declare dividends only out of "unrestricted retained earnings;" and that under Sec. 122, no corporation shall distribute any of its assets or property except upon lawful dissolution and after payment of all its debts and liabilities. These provisions in essence provide for the "trust fund doctrine" where the "subscription to the capital of a corporation constitute a fund

144

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

obligation of paying for his shares, in whole or in part, without a valuable consideration, or fraudulently, to the prejudice of creditors. The creditor is allowed to maintain an action upon any unpaid subscriptions and thereby steps into the shoes of the corporation for the satisfaction of its debt. To make out a prima facie case in a suit against stockholders of an insolvent corporation to compel them to contribute to the payment of its debts by making good unpaid balances upon their subscriptions, it is only necessary to establish that the stockholders have not in good faith paid the par value of the stocks of the corporation.

Steinberg v. Velasco (1929): The creditors of a corporation have the right to assume that so long as there are debts and liabilities, the BOD will not use corporate assets to purchase its own shares of stock or to declare dividends to its stockholders when the corporation is insolvent. NTC v. CA (1999): The subscribed capital is the same amount that can loosely be termed as the “trust fund” of the corporation. The “Trust Fund” doctrine considers this subscribed capital as a trust fund for the payment of the debts of the corporation, to which the creditors may look for satisfaction. Until the liquidation of the corporation, no part of the subscribed capital may be returned or released to the stockholder (except in the redemption of redeemable shares) without violating this principle. Thus, dividends must never impair the subscribed capital; subscription commitments cannot be condoned or remitted; nor can the corporation buy its own shares using the subscribed capital as the consideration therefor.

VII. BOARD OF DIRECTORS AND TRUSTEES A. DOCTRINE MANAGEMENT

OF

CENTRALIZED

A.1. BOARD IS SEAT OF CORPORATE POWERS

Donnina Halley v. Printwell, Inc. (2011): The trust fund doctrine is not limited to reaching the stockholder’s unpaid subscriptions. The scope of the doctrine when the corporation is insolvent encompasses not only the capital stock, but also other property and assets generally regarded in equity as a trust fund for the payment of corporate debts. All assets and property belonging to the corporation held in trust for the benefit of creditors that were distributed or in the possession of the stockholders, regardless of full payment of their subscriptions, may be reached by the creditor in satisfaction of its claim. Also, under the trust fund doctrine, a corporation has no legal capacity to release an original subscriber to its capital stock from the

General Rule: Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the BOD or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for 1 year until their successors are elected and qualified. [Sec. 23] Exceptions: (1) In case of an Executive Committee duly authorized in the by-laws; [Sec. 35]

145

UP LAW BOC

CORPORATION CODE

(2) In case of a contracted manager which may be an individual, a partnership, or another corporation Note: In case the contracted manager is another corporation, the special rule in Sec. 44 applies. (3) In case of close corporations, the stockholders may manage the business of the corporation rather than by a BOD, if the Articles of Incorporation so provide [Sec. 97]

MERCANTILE LAW

lodged in the board, subject to the articles of incorporation, by-laws, or relevant provisions of law. In the absence of authority from the BOD, no person, not even its officers, can validly bind a corporation. However, just as a natural person may authorize another to do certain acts for and on his behalf, the BOD may validly delegate some of its functions and powers to its officers, committees or agents. The authority of these individuals to bind the corporation is generally derived from law, corporate by-laws or authorization from the board, either expressly or impliedly by habit, custom or acquiescence in the general course of business.

Spouses Constantine Firme v. Bukal Enterprises and Development Corporation (2003): The power to purchase real property is vested in the BOD or trustees. While a corporation may appoint agents to negotiate for the purchase of real property needed by the corporation, the final say will have to be with the board, whose approval will finalize the transaction.

i. REQUISITES OF A VALID CORPORATE ACT BY THE BOD (a) The Board must act as a BODY in a meeting. (b) There must be a VALIDLY constituted meeting. (c) There act must be supported by a MAJORITY OF THE QUORUM duly assembled (Exception: Election of officers requires a vote of majority of ALL the members of the board) (d) The act must be within the powers conferred to the Board.

Great Asian Sales Center Corp v. CA, (2002): The Corporation Code of the Philippines vests in the BOD the exercise of the corporate powers of the corporation, save in those instances where the Code requires stockholders’ approval for certain specific acts. Gamboa v. Teves, (2011): Indisputably, one of the rights of a stockholder is the right to participate in the control or management of the corporation. This is exercised through his vote in the election of directors because it is the BOD that controls or manages the corporation.

ii. LIMITATIONS BOD/TRUSTEES

ON

POWERS

OF

(1) Limitations imposed by the Constitution, statutes, articles of incorporation or bylaws; (2) Certain acts of the corporation that require joint action of the stockholders and BOD: (a) Removal of director [Sec. 28] (b) Amendments of Articles of Incorporation [Sec. 16] (c) Fundamental changes [Sec. 6] (d) Declaration of stock dividends [Sec. 43] (e) Entering into management contracts [Sec. 44]

Banate v. Philippine Countryside Rural Bank, (2010): Sec. 23 of the Corporation Code expressly provides that the corporate powers of all corporations shall be exercised by the BOD. The power and the responsibility to decide whether the corporation should enter into a contract that will bind the corporation are 146

UP LAW BOC

CORPORATION CODE

(f) Fixing of consideration of non-par shares [Sec. 62] (g) Fixing of compensation of directors [Sec. 30] (3) Cannot exercise powers not possessed by the corporation.

MERCANTILE LAW

or are guilty of gross negligence or bad faith); and (3) if they violate Sec. 34 (disloyalty of a director who acquires for himself a business opportunity that should have belonged to the corporation, unless his act is ratified by a 2/3 vote of stockholders).

A.2. PRINCIPLE ON DELEGATION OF BOARD POWER

Consequences of the Business Judgment Rule:

Sec. 23 embodies the essence of the “Business

People’s Aircargo v. CA, (1998): Under Sec 23, the power and the responsibility to decide whether the corporation should enter into a contract that will bind the corporation is lodged in the board, subject to the articles of incorporation, by-laws, or relevant provisions of law. However, just as a natural person may authorize another to do certain acts for and on his behalf, the BOD may validly delegate some of its functions and powers to officers, committees or agents. The authority of such individuals to bind the corporation is generally derived from law, corporate by-laws or authorization from the board, either expressly or impliedly by habit, custom or acquiescence in the general course of business,.

Judgment Rule,” that unless otherwise provided in the Code, all corporate powers and prerogatives are vested directly in the BOD. Consequently: (1) The resolution, contracts and transactions of the board cannot be overturned or set aside by the stockholders or members and not even by the courts under the principle that the business of the corporation has been left to the hands of the board (2) Directors and duly authorized officers cannot be held personally liable for acts or contracts done with the exercise of their business judgment. Exceptions: (1) When the Corporation Code expressly provides otherwise (2) When the Directors or officers acted with fraud, gross negligence or in bad faith (Sec. 31). (3) When Directors or officers act against the corporation in conflict of interest situation (Villanueva).

B. BUSINESS JUDGMENT RULE General Rule: Directors cannot be held liable for mistakes or errors in the exercise of their business judgment as long as they acted in good faith, with due care and prudence. Contracts entered into by the BOD are binding upon the corporation and courts will not interfere.

Remedies in case of Mismanagement (1) Removal of directors pursuant to Sec. 28 (2) Derivative suit or complaint filed with the SEC (now the RTC) (PD 902-A) (3) Receivership (4) Injunction if the act has not yet been done (5) Dissolution if abuse amounts to a ground for quo warranto but Solicitor General Refuses to act

Exceptions: (1) If the contracts are so unconscionable and oppressive as to amount to a wanton destruction of the rights of the minority; (2) if they violate their duties under Sec. 31 (director willfully and knowingly assents to patently unlawful acts of the corporation,

147

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

longer) than the term for reasons within or beyond the power of the incumbent. Based on the above discussion, when Sec. 23 of the Corporation Code declares that "the BOD…shall hold office for 1 year until their successors are elected and qualified," we construe the provision to mean that the term of the members of the BOD shall be only for one year; their term expires one year after election to the office. The holdover period – that time from the lapse of one year from a member’s election to the Board and until his successor’s election and qualification – is not part of the director’s original term of office, nor is it a new term; the holdover period, however, constitutes part of his tenure.

NOTE: Dean Villanueva opined that a derivative suit may be an exception to such Rule: this occurs when it is apparent that the Board is not in a position to validly exercise its business judgment for the protection of the corporation, e.g., when the Board itself has committed an act causing damage to the corporation or when the Board is placed in a conflict of interests scenario whereby it is unlikely that it would use such business discretion to file such suit for the best interest of the corporation.

C. TENURE, QUALIFICATIONS AND DISQUALIFICATIONS OF DIRECTORS OR TRUSTEES

C.2. QUALIFICATIONS

C.1. TENURE

(1) If STOCK, director must own at least 1 share of the capital stock, which stock shall stand in his own name [Sec. 23] Exception: Trustee in a voting trust may be elected director/trustee. (2) If NON-STOCK, trustee must be a member.

Directors shall hold office for 1 year until their successors are elected and qualified [Sec. 23] Term: 1 year Tenure: The period within which the director actually holds office, including the holdover period after the end of his term.

Qualifications: (1) Majority of the directors/trustees must be residents of the Philippines. (2) Natural person (3) Of Legal Age (4) Other qualifications as may be prescribed in the by-laws of the corporation.

Valle Verde Country Club v. Africa, 2009: In several cases, we have defined "term" as the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The term of office is not affected by the holdover. The term is fixed by statute and it does not change simply because the office may have become vacant, nor because the incumbent holds over in office beyond the end of the term due to the fact that a successor has not been elected and has failed to qualify. Term is distinguished from tenure in that an officer’s "tenure" represents the term during which the incumbent actually holds office. The tenure may be shorter (or, in case of holdover,

Lee v. CA (1992): With the omission of the phrase "in his own right" the election of trustees and other persons who in fact are not beneficial owners of the shares registered in their names on the books of the corporation becomes formally legalized. Hence, this is a clear indication that in order to be eligible as a director, what is material is the legal title to, not beneficial ownership of, the stock as appearing on the books of the corporation. 148

UP LAW BOC

CORPORATION CODE

ii. CUMULATIVE DISTRIBUTION

C.3. DISQUALIFICATIONS [SEC. 27]

MERCANTILE LAW

VOTING

BY

A stockholder may cumulate his shares by multiplying the number of his shares by the number of directors to be elected and distribute the same among as many candidates as he shall see fit.

(1) Convicted by final judgment of an offense punishable by imprisonment for a period exceeding 6 years; or (2) A violation of the Corporation Code, committed within 5 years prior to the date of his election. This includes violations of rules and regulations issued by the SEC to implement the provisions of the Corporation Code.

ILLUSTRATION In the illustration above, Pedro instead may choose to give 100 votes to candidate 1, 100 votes to candidate 2, 100 votes to candidate 3, 150 votes to candidate 4, and 50 votes to candidate 5.

Gokongwei, Jr. v. SEC (1979): An amendment to the corporation’s by-laws which renders a stockholder ineligible to be a director, if he be also a director in a corporation whose business is in competition with that of the other corporation, has been sustained as valid. This is based upon the principle that where the director is so employed in the service of a rival company, he cannot serve both, but must betray one or the other. Such an amendment "advances the benefit of the corporation and is good."

iii. STRAIGHT VOTING Every stockholder may vote such number of shares for as many persons as there are directors to be elected.

D.2. QUORUM There must be present, in person or by representative authorized to act by written proxy, the owners of majority of the Outstanding Capital Stock or majority of the members entitled to vote in the meeting.

D. ELECTIONS

Election must be by ballot if requested.

D.1. CUMULATIVE VOTING i. CUMULATIVE CANDIDATE

VOTING

FOR

A stockholder cannot be deprived in the articles of incorporation or in the by-laws of his statutory right to use any of the methods of voting in the election of directors.

ONE

A stockholder is allowed to concentrate his votes and give one candidate as many votes as the number of directors to be elected multiplied by the number of his shares shall equal.

No delinquent stock shall be voted. The candidates receiving the highest number of votes shall be declared elected.

ILLUSTRATION If there are 5 directors to be elected and Pedro, as shareholder, has 100 shares, Pedro can give 500 (5 x 100 shares) votes to just one candidate.

E. REMOVAL General Rule: Any Director or Trustee of a corporation may be removed from office, with or without cause. [Sec. 28] 149

UP LAW BOC

CORPORATION CODE

Exception: Directors who have been elected by minority stockholders exercising cumulative voting can only be removed for cause. Removal without cause may not be used to deprive minority stockholders or members of the right of representation to which they may be entitled under Sec. 24.

MERCANTILE LAW

Vacancy/ies may be filled by the vote of at least a majority of the remaining directors or trustees, if still constituting a quorum.

G. COMPENSATION [SEC. 30] General Rule: Directors are only entitled to reasonable per diems. They are not entitled to compensation as directors.

Other requisites: (1) by a vote of the stockholders holding or representing 2/3 of the outstanding capital stock, or if the corporation be a non-stock corporation, by a vote of 2/3 of the members entitled to vote (2) At a regular or special meeting after proper notice is given

Exceptions: (1) When Articles of Incorporation, by-laws, or an advance contract provides for compensation. (2) Compensation other than per diems may also be granted to directors by the vote of the stockholders representing at least a majority of the Outstanding Capital Stock at a regular or special stockholders’ meeting.

F. FILLING OF VACANCIES F.1. VACANCY (1) BY REMOVAL; OR (2) BY EXPIRATION OF TERM; OR (3) WHEN THE REMAINING DIRECTORS DO NOT CONSTITUTE A QUORUM

The total yearly compensation of directors shall not exceed 10% of the net income before income tax of the corporation during the preceding year.

Vacancy/ies must be filled by the stockholders in a regular or special meeting called for that purpose.

COMPENSATION OF DIRECTORS AS CORPORATE OFFICERS

A director or trustee elected to fill a vacancy shall be elected only for the unexpired term of his predecessor in office.

Western Institute of Technology v. Salas (1997): The position of being chairman and ViceChairman, like that of treasurer and secretary, are not considered directorship positions but officership positions that would entitle the occupants to compensation. Likewise, the limitation placed under Sec. 30 of the Corporation Code that directors cannot receive compensation exceeding 10% of the net income of the corporation would not apply to the compensation given to such positions since it is being given in their capacity as officers of the corporation and not as board members.

F.2. VACANCY BY REASON OF INCREASE IN THE NUMBER OF THE DIRECTORS/TRUSTEES Vacancy/ies must be filled by the stockholders: (1) in a regular or special meeting called for that purpose; or (2) in the same meeting authorizing the increase of directors or trustees if so stated in the notice of the meeting.

F.3. VACANCY BY OTHER CAUSES 150

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

foundations to be first laid out in appropriate judicial proceedings. Hence, concluding that a person breached fiduciary duties as an officer and member of the BOD of a corporation without competent evidence thereon would be unwarranted and unreasonable.

H. FIDUCIARY DUTIES AND LIABILITY RULES H.1. DUTIES Strategic Alliance Development Corp v. Radstock Securities Ltd. (2009): In this jurisdiction, the members of the BOD have a three-fold duty: duty of obedience, duty of diligence, and duty of loyalty. Accordingly, the members of the BOD (1) Duty of Obedience - shall direct the affairs of the corporation only in accordance with the purposes for which it was organized; (2) Duty of Diligence - shall not willfully and knowingly vote for or assent to patently unlawful acts of the corporation or act in bad faith or with gross negligence in directing the affairs of the corporation; and (3)Duty of Loyalty - shall not acquire any personal or pecuniary interest in conflict with their duty as such directors or trustees.

Duty of Loyalty Directors and trustees should not acquire any personal or pecuniary interest in conflict with their duty as such directors or trustees, otherwise they shall be held liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members and other persons. [Sec. 31] Where a director, by virtue of his office, acquires for himself a business opportunity which should belong to the corporation, thereby obtaining profits to the prejudice of such corporation, he must account to the latter for all such profits by refunding the same, unless his act has been ratified by a vote of the stockholders owning or representing at least 2/3 of the outstanding capital stock [Sec. 34]

Duty of Obedience The Directors or Trustees and Officers to be elected shall perform the duties enjoined on them by law and by the by-laws of the corporation [Sec. 25]

Doctrine of Corporate Opportunity Unless his act is ratified, a director shall refund to the corporation all the profits he realizes on a business opportunity which: (1) corporation is financially able to undertake (2) from its nature, is in line with corporation’s business and is of practical advantage to it; and (3) one in which the corporation has an interest or a reasonable expectancy.

Duty of Diligence Directors or trustees who (i) willfully and knowingly vote for or assent to patently unlawful acts of the corporation or (ii) who are guilty of gross negligence or bad faith in directing the affairs of the corporation or (iii) acquire any personal or pecuniary interest in conflict with their duty as such directors or trustees shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members and other persons. [Sec 31]

The rule shall be applied notwithstanding the fact that the director risked his own funds in the venture. [Sec. 34]

Republic of the Philippines v. Sandiganbayan (First Division) et al. (2011): The conditions for the application of Sec. 31 of the Corporation Code require factual

By embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation. Hence, 151

UP LAW BOC

CORPORATION CODE

the law does not permit him to seize the opportunity even if he will use his own funds in the venture. [Sundiang and Aquino]

MERCANTILE LAW

who, having knowledge thereof, does not forthwith express his objection in writing and file the same with the corporate secretary shall be solidarily liable with the stockholder concerned to the corporation and its creditors for the difference in value [Sec. 65]

NOTE: Differences between Sec. 31 and Sec. 34: (1) First, while both involve the same subject matter (business opportunity) they concern different personalities; Sec. 34 is applicable only to directors and not to officers, whereas Sec. 31 applies to directors, trustees and officers. (2) Second, Sec. 34 allows a ratification of a transaction by a self-dealing director by vote of stockholders representing at least 2/3 of the outstanding capital stock.

iii. PERSONAL LIABILITIES GENERAL RULE Price v. Innodata Phils., Inc. (2008): Members of the Board, who purport to act in good faith for and in behalf of the corporation within the lawful scope of their authority, are not liable for the consequences of their acts. When the acts are of such nature and done under those circumstances, they are attributed to the corporation alone and no personal liability is incurred. The provisions on seizing corporate opportunity and disloyalty [Secs. 31 and 34] shall also apply to corporate officers.

[Villanueva]

H.2. LIABILITIES i. SOLIDARY LIABILITY FOR DAMAGES (1) Willfully and knowingly voting for and assenting to patently unlawful acts of the corporation; [Sec. 31] (2) Gross negligence or bad faith in directing the affairs of the corporation; [Sec. 31] (3) Acquiring any personal or pecuniary interest in conflict of duty; [Sec. 31] (4) Consenting to the issuance of watered stocks, or, having knowledge thereof, failing to file objections with secretary; [Sec. 65] (5) Agreeing or stipulating in a contract to hold himself liable with the corporation; or (6) By virtue of a specific provision of law

NOTE: Members of the BOD who are also officers are held to a more stringent liability because they are in-charge of day-to-day activities [Campos] Doctrine Of Limited Liability Shields the corporators from corporate liability beyond their agreed contribution to the capital or shareholding in the corporation.

ii. LIABILITY FOR WATERED STOCKS Watered Stocks – stocks issued for a consideration less than its par or issued value or for a consideration in any form other than cash, valued in excess of its fair value.

Doctrine Of Immunity Protects a person acting for and in behalf of the corporation from being himself personally liable for his authorized actions

Tramat Mercantile, Inc. vs. CA, (1994), reiterated in Atrium Management Corp. v. CA, (2001): Liability of Director, Trustee or Officer (Asked in 96 and 97)

Any director or officer of a corporation consenting to the issuance of watered stocks or 152

UP LAW BOC

CORPORATION CODE

Personal liability of a corporate director, trustee or officer along (although not necessarily) with the corporation may so validly attach, as a rule, only when: (1) He assents (a) to a patently unlawful act of the corporation, or (b) for bad faith or gross negligence in directing its affairs, or (c) for conflict of interest, resulting in damages to the corporation, its stockholders or other persons; (2) He consents to the issuance of watered stocks or who, having knowledge thereof, does not forthwith file with the corporate secretary his written objection thereto; (3) He agrees to hold himself personally and solidarily liable with the corporation; or (4) He is made, by a specific provision of law, to personally answer for his corporate action

MERCANTILE LAW

Special Facts Doctrine: Conceding the absence of a fiduciary relationship in the ordinary case, courts nevertheless hold that where special circumstances or facts are present which make it inequitable for the director to withhold information from the stockholder, the duty to disclose arises and concealment is fraud. [Strong v. Repide, 1909]

I. RESPONSIBILITY FOR CRIMES Since a corporation as a person is a mere legal fiction, it cannot be proceeded against criminally because it cannot commit a crime in which personal violence or malicious intent is required. West Coast Life Ins. Co. v. Hurd (1914); Time Inc. v. Reyes (1971): Criminal action is limited to the corporate agents guilty of an act amounting to a crime and never against the corporation itself. Since the BOD is the repository of corporate powers and acts as the agent of the corporation, the directors may be held criminally liable.

iv. Special Facts Doctrine Strong v. Repide (1909): Even though a director may not be under the obligation of a fiduciary nature to disclose to a shareholder his knowledge affecting the value of the shares, that duty may exist in special cases.

Ong v. CA (2003): The Trust Receipts Law recognizes the impossibility of imposing the penalty of imprisonment on a corporation. Hence, if the entrustee is a corporation, the law makes the officers or employees or other persons responsible for the offense liable to suffer the penalty of imprisonment. The reason is obvious: corporations, partnerships, associations and other juridical entities cannot be put to jail. Hence, the criminal liability falls on the human agent responsible for the violation of the Trust Receipts Law.

General Rule: Majority view: Directors only owe its duty to the corporation. They owe no fiduciary duty to stockholders but they may deal with each other at fair and reasonable terms, as if they were unrelated. No duty to disclose facts known to the director or officer. [Taylor v. Wright, 1945] NOTE: Minority View (Realistic View) recognizes the directors’ obligation to the stockholders individually as well as collectively, and refuses to permit him to profit at the latter’s expense by the use of information obtained as a result of official position and duties.

J. INSIDE INFORMATION

Exception:

153

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

The fiduciary position of insiders 1 , directors, and officers prohibits them from using confidential information relating to the business of the corporation to benefit themselves or any competitor corporation in which they may have a mere substantial interest.

(b) That the vote of such director or trustee was not necessary for the approval of the contract; (c) That the contract is fair and reasonable under the circumstances; and (d) That in case of an officer, the contract has been previously authorized by the BOD.

Since loss and prejudice to the corporation is not a requirement for liability, the corporation has a cause of action as long as there is unfair use of inside information

Ratification In case of absence of the first two conditions above, contract may be ratified if: (a) Stockholders representing at least 2/3 of the outstanding capital stock or at least 2/3 of the members in a meeting called for the purpose voted to ratify the contract. (b) Full disclosure of the adverse interest of the directors or trustees involved is made at such meeting. (c) Contract is fair and reasonable under the circumstances

It is inside information if it is not generally available to others and is acquired because of the close relationship of the director or officer to the corporation

K. CONTRACTS K.1. BY SELF-DEALING DIRECTORS WITH THE CORPORATION

K.2. BETWEEN CORPORATIONS WITH INTERLOCKING DIRECTORS

General Rule: A contract of the corporation with one or more of its directors or trustees is VOIDABLE, at the option of such corporation. [Sec. 32]

If the interests of the interlocking director in the corporations are both substantial (stockholdings exceed 20% of outstanding capital stock).

Exceptions: Such contract is VALID if all of the following conditions are present: (a) That the presence of such director or trustee in the board meeting in which the contract was approved was not necessary to constitute a quorum for such meeting;

General Rule: A contract between two or more corporations having interlocking directors shall not be invalidated on that ground alone. [Sec. 32] Exception: If contract is fraudulent or not fair and reasonable under the circumstances If the interest of the interlocking director in one of the corporations is nominal (stockholdings 20% or less) while substantial in the other, the contract shall be VALID, if the following conditions are met:

1 “Insider” means: (a) the issuer; (b) a director or officer (or person performing similar functions) of, or a person controlling the issuer; (c) a person whose relationship or former relationship to the issuer gives or gave him access to material information about the issuer or the security that is not generally available to the public; (d) a government employee, or director, or officer of an exchange, clearing agency and/or self-regulatory organization who has access to material information about an issuer or a security that is not generally available to the public; or (e) a person who learns such information by a communication from any of the foregoing insiders (§3.8, Sec Regulations Code)

(a) The presence of such director or trustee in the board meeting in which the contract

154

UP LAW BOC

CORPORATION CODE

was approved was NOT necessary to constitute a quorum for such meeting (b) That the vote of such director or trustee was not necessary for the approval of the contract (c) That the contract is fair and reasonable under the circumstances.

MERCANTILE LAW

(2) Filling up of board vacancies; (3) Amendment, repeal or adoption of by-laws [Sec. 35]; (4) Amendment or repeal of any resolution of the Board which by its express terms is not amendable or repealable [Sec. 35]; (5) Cash dividend distribution [Sec. 35]; and (6) Acts which would render the BOD powerless and free from all responsibilities imposed on it by law [Campos]

Where (a) and (b) are absent, the contract can be ratified by the vote of the stockholders representing at least 2/3 of the outstanding capital stock or at least 2/3 of the members in a meeting called for the purpose voted to ratify the contract, provided that: (a) Full disclosure of the adverse interest of the directors/trustees involved is made on such meeting; (b) The contract is fair and reasonable under the circumstances.

Filipinas Port Services Inc. v. Go (2007): Under Sec. 35 of the Corporation Code, the creation of an executive committee must be provided for in the by-laws of the corporation. Unfortunately, the by-laws of the corporation in this case are silent as to the creation by its BOD of an executive committee. (1) Notwithstanding the silence of the by-laws on the matter, the SC did not rule that the BOD’s creation of the executive committee is illegal or unlawful. (2) One reason is the absence of a showing as to the true nature and functions of said executive committee considering that the "executive committee," referred to in Sec. 35 of the Corporation Code which is as powerful as the BOD and in effect acting for the board itself, should be distinguished from other committees which are within the competency of the board to create at anytime and whose actions require ratification and confirmation by the board. (3) Another reason is that the BOD has the power to create positions not provided for in the by-laws since the board is the corporation’s governing body.

K.3. MANAGEMENT CONTRACTS [SEC 44] See: Corporate Powers (2)(h) above

L. EXECUTIVE COMMITTEE L.1. CREATION The by-laws of a corporation may create an executive committee, composed of not less than three members of the board, to be appointed by the board. Said committee may act, by majority vote of all its members, on such specific matters within the competence of the board, as may be delegated to it in the by-laws or on a majority vote of the board [Sec. 35]

M. MEETINGS

L.2. LIMITATION ON ITS POWERS

M.1. REGULAR OR SPECIAL

CANNOT act on the following: (1) Matters needing stockholder approval [Sec. 35];

Who May Attend?

155

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

M.3. QUORUM

The members of the Board themselves; directors in Board meetings cannot be represented or voted by proxies.

General Rule: Majority of the number of directors or trustees as fixed in the articles of incorporation. [Sec. 25]

Expertravel and Tours, Inc. v. CA, (May 26, 2005): In the Philippines, teleconferencing and videoconferencing of members of BOD of private corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange Commission issued SEC Memorandum Circular No. 15, on November 30, 2001, providing the guidelines to be complied with in relation to such conferences.

Exceptions: (1) Unless the articles of incorporation or the by-laws provide for a GREATER majority, or (2) In case of election of officers where a vote of a majority of all the members of the board is needed. Tan v. Sycip (2006): Whether or not "dead members" are entitled to exercise their voting rights (through their executor or administrator), depends on the articles of incorporation or by-laws.

i. WHEN AND WHERE When? [Sec.53] (1) Regular meetings of directors or trustees shall be held monthly, unless the by-laws provide otherwise. (2) Special meetings of the BOD or trustees may be held at any time upon the call of the president or as provided in the by-laws.

The quorum in a members’ meeting is to be reckoned as the actual number of members of the corporation. What happens in the event of the death of one of them? (1) In stock corporations, shareholders may generally transfer their shares. Thus, on the death of a shareholder, the executor or administrator duly appointed by the Court is vested with the legal title to the stock and entitled to vote it. Until a settlement and division of the estate is effected, the stocks of the decedent are held by the administrator or executor. (2) On the other hand, membership in and all rights arising from a non-stock corporation are personal and non-transferable, unless the articles of incorporation or the bylaws of the corporation provide otherwise. In other words, the determination of whether or not “dead members” are entitled to exercise their voting rights (through their executor or administrator), depends on the Articles of Incorporation or by-laws.

Where? [Sec. 53] Meetings of directors or trustees of corporations may be held anywhere in or outside of the Philippines, unless the by-laws provide otherwise.

ii. NOTICE Notice of regular or special meetings stating the date, time and place of the meeting must be sent to every director or trustee at least 1 day prior to the scheduled meeting, unless otherwise provided by the by-laws. A director or trustee may waive this requirement, either expressly or impliedly

M.2. WHO PRESIDES The president presides, unless the by-laws provide otherwise. [Sec. 54]

M.4. RULE ON ABSTENTION 156

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

Incorporation is silent on such differences. [CIR v. CA, CTA, and A. Soriano Corporation (1999)]

A vote of abstention is considered to be a vote in itself. Abstentions will not be counted towards the affirmative and such refusal to vote does not indicate acquiescence in the action of those who vote.

Doctrine of Equality of Shares provides that where the Articles of Incorporation do not provide for any distinction of the shares of stock, all shares issued by the corporation are presumed to be equal and enjoy the same rights and privileges and are also subject to the same liabilities. [Sundiang and Aquino]

VIII. Stockholders and Members

The default rule is that all stockholders have equal right and obligations, expressed in the last paragraph of Sec. 6 of the Corporation Code which provides, “each share shall be equal in all respects to every other share.” [Villanueva]

A. RIGHTS OF A STOCKHOLDER AND MEMBERS (1) Direct or indirect participation in management (Sec. 6) (2) Voting rights (Sec. 6) (3) Right to remove directors (Sec. 28) (4) Proprietary rights (a) Right to dividends (Secs. 43 and 71) (b) Appraisal right (Sec. 81) (c) Right to issuance of stock certificate for fully paid shares (Sec. 64) (d) Proportionate participation in the distribution of assets in liquidation (Sec. 122) (e) Right to transfer of stocks in corporate books (Sec. 63) (f) Pre-emptive right (Sec. 39) (5) Right to inspect books and records (Sec. 74) (6) Right to be furnished with the most recent financial statements/reports (Sec. 75) (7) Right to recover stocks unlawfully sold for delinquent payment of subscription (Sec. 69) (8) Right to file individual suit, representative suit and derivative suits

Note: However, when preferences or restrictions are made to apply to a class of shares, then such preferences on restrictions shall exist and be valid only when “provided in the articles of incorporation and stated in the certificate of stock.” [Villanueva] Sec. 6 of the Corporation Code also contains a “Board-enabling” clause that although the default rule is that all shareholders have equal rights and obligations, nevertheless, when authorized by the articles of incorporation, the BOD, may fix the terms and conditions of preferred shares of stock or any series thereof, or to classify its shares for the purpose of insuring compliance with constitutional or legal requirements; but such terms and conditions shall be effective upon filing of a certificate thereof with the SEC. Thus, a preference or restriction on shares may be valid and effective only if the same has formally been registered with the SEC and thereby becomes public records binding on the public. [Villanueva]

A.1. DOCTRINE OF EQUALITY OF SHARES All stocks issued by the corporation are presumed equal with the same privileges and liabilities, provided that the Articles of

Nature of the Rights of Members

157

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

The eleemosynary nature of every non-stock corporation defines the characteristic of membership therein as being essentially personal in character and therefore essentially non-transferable in nature.

(2) Signed by the stockholder or member of record; and (3) Filed with the corporation before the scheduled meeting with the Corporate Secretary

Sec. 89 of the Corporation Code specifically provides that in a non-stock corporation, the right of members of any class or classes to vote “may be limited, broadened or denied to the extent specified in the articles of incorporation or the by-laws.”

Procedural Matters Relating to Proxies: (1) “Proxy solicitation” involves the securing and submission of proxies, while “proxy validation” concerns the validation of such secured and submitted proxies; (2) The SEC’s power to pass upon the validity of proxies in relation to election controversies has effectively been withdrawn, tied as it is to its abrogated quasi-judicial powers, and has been transferred to the RTC Special Commercial Courts pursuant to the terms of Sec. 5.2 of the Securities Regulation Code; (3) Nevertheless, although an intra-corporate controversy may animate a disgruntled shareholder to complain to the SEC a corporation’s violations of SEC rules and regulations, but that motive alone should not be sufficient to deprive the SEC of its investigatory and regulatory powers, especially so since such powers are exercisable on a motu proprio basis.

The SEC has opined that the rule in Sec. 6 allowing non-voting shares to vote on specified fundamental matters does not apply to nonvoting members of a non-stock corporation; that insofar as members of a non-stock corporation, the applicable provision is Sec. 89, which specifically provides that members may be denied entirely their voting rights in the articles of incorporation or by-laws of the corporation. [SEC Opinion, 4 September 1995]

B. PARTICIPATION IN MANAGEMENT B.1. PROXY Stockholders and members may vote in person or by proxy in all meetings of stockholders or members (Sec. 58).

The fact that the jurisdiction of the RTC Special Commercial Courts is confined to the voting on election of officers, and not all matter which may be voted upon by stockholders, elucidates that the power of the SEC to regulate proxies remains extant and could very well be exercised when stockholders vote on matters other than the election of directors. [GSIS v. CA (2009):]

The right to issue a proxy is vested with public interest when it comes to stock corporations; although it may be regulated under the bylaws, it cannot be denied, since it is an aspect of ownership interest of stockholders. However, the right of members to vote by proxy may be denied under the articles of incorporation or by-laws of a non-stock corporation (Sec. 89)

B.2. VOTING TRUST An arrangement created by one or more stockholders for the purpose of conferring upon a trustee or trustees the right to vote and other rights pertaining to the shares for a

Requisites for a Valid and Enforceable Proxy: (1) It must be in writing

158

UP LAW BOC

CORPORATION CODE

period not exceeding 5 years at any time (Sec. 59).

PROXY Revocable at will in any manner, EXCEPT if coupled with an interest. Max of 5 yrs at a time

Under a voting trust arrangement, a stockholder of a stock corporation parts with the naked or legal title, including the power to vote, of the shares and only retains the beneficial ownership of the stock. A voting trustee is a share owner vested with colorable and naked title of the shares covered for the primary purpose of voting upon stocks that he does not own.

MERCANTILE LAW TRUSTEE Irrevocable, as long as no misconduct or fraud.

Max of 5 yrs at a time (unless the voting trust is specifically required as a condition in a loan agreement) SEC can pass on validity

B.3. CASES WHEN STOCKHOLDERS’ ACTION IS REQUIRED

A voting trust agreement shall be ineffective and unreasonable unless: (1) It is in writing and notarized; (2) Specify the terms and conditions thereof; and (3) A certified copy of such agreement shall be filed with the corporation and with the SEC.

Under Sec. 6 of the Corporation Code, each share of stock is entitled to vote, unless otherwise provided in the articles of incorporation or declared delinquent under Sec. 67 of the Code. [Tan v. Sycip (2006)] In non-stock corporations, the voting rights attach to membership. Members vote as persons, in accordance with the law and the by-laws of the corporation. Each member shall be entitled to one vote unless so limited, broadened, or denied in the articles of incorporation or by-laws. When the principle for determining the quorum for stock corporations is applied by analogy to nonstock corporations, only those who are actual members with voting rights should be counted.

PROXY TRUSTEE Principal–agent Trustee-beneficiary Proxy cannot exceed The only limit to delegated authority. authority is that the act must be for the benefit of trustee. (fiduciary obligation) Must be in writing Must be in writing and notarized Copy must be filed Copy must be filed with with the SEC and the corporation. corporation. No transfer. Transfer of legal title to trustee. Proxy exercises Trustee exercises voting rights only for absolute voting rights a specific meeting continuously, subject (unless otherwise only to fiduciary duty. provided) Proxy cannot be Trustee can be director director because he holds legal title over the shares

i. By a Majority Vote 1. Power to enter into management contracts (Sec. 44) General Rule Requires approval by majority of the BOD/BOT and approval by stockholders owning at least the majority of the outstanding capital stock/majority of members of both the managing and the managed corporation Exceptions

159

UP LAW BOC

CORPORATION CODE

(1) Where a stockholder/s representing the same interest of both the managing and the managed corporations own or control more than one-third (1/3) of the total outstanding capital stock entitled to vote of the managing corporation; or (2) Where a majority of the members of the managing corporation’s BOD also constitute a majority of the managed corporation’s BOD

MERCANTILE LAW

5. Granting compensation other than per diems to directors (Sec. 30) Compensation other than per diems may be granted to directors by the vote of the stockholders representing at least a majority of the outstanding capital stock 6. Consideration for no-par shares (Sec. 62) When the Articles of Incorporation or the BOD does not provide for the value of no-par shares, the value of such shares shall be determined by the stockholders representing at least a majority of the outstanding capital stock

Requires at least 2/3 votes of the outstanding capital stock/membership of the managed corporation. BUT only majority vote is required for the managing corporation.

ii. By a Two-Thirds Vote

2. Amendments to by-laws (Sec. 48)

1. Amendment of Articles of Incorporation (Sec. 16)

Requires approval by majority of the BOD/BOT and approval by stockholders owning at least the majority of the outstanding capital stock/majority of members

Amendment of the Articles of Incorporation may be made by a majority vote of the BOD/BOT and the vote or written assent of the stockholders representing at least two-thirds 2/3 of the outstanding capital stock, without prejudice to the appraisal right of dissenting stockholders.

Includes all stockholders with or without voting rights 3. Revocation of delegation to the BOD of the power to amend or repeal or adopt by-laws (Sec. 48)

Includes all stockholders with or without voting rights

Requires approval by stockholders owning at least the majority of the outstanding capital stock/majority of members

Amendment of Articles of Incorporation of close corporations (Sec 103) Amendment to the Articles of Incorporation which seeks to delete or remove any provision required to be contained in the Articles of Incorporation of Close Corporations or to reduce a quorum or voting requirement stated in said Articles of Incorporation requires the affirmative vote of at least 2/3 of the outstanding capital stock, whether with or without voting rights, or of such greater proportion of shares as may be specifically

4. Calling a meeting to remove directors (Sec. 28) Meeting for the removal of directors or trustees, or any of them, must be called by the secretary on order of the president or on the written demand of the stockholders representing or holding at least a majority of the outstanding capital stock/majority of members

160

UP LAW BOC

CORPORATION CODE

provided in the Articles of Incorporation at a meeting duly called.

MERCANTILE LAW

Shares issued in good faith in exchange for property or previously incurred indebtedness with the approval of the stockholders representing 2/3 of the outstanding capital stock are not subject to pre-emptive rights.

2. Delegating the power to amend or repeal bylaws or adopt new by-laws (Sec. 48) Delegation to the BOD/BOT of the power to amend or repeal by-laws or adopt new by-laws requires approval by at least 2/3 of the outstanding capital stock/membership.

7. Sale/disposition of all or substantially all of corporate assets(Sec. 40) Requires approval by a majority vote of the BOD/BOT and approval by at least 2/3 of the outstanding capital stock/membership.

Revocation of the delegation requires only majority vote of the outstanding capital stock/membership.


3. Extending/shortening corporate term (Sec. 37)

Note: In non-stock corporations where there are NO members with voting rights, the vote of at least the majority of the BOT will be sufficient authorization for any sale or disposition of all or substantially all of corporate assets. (Sec. 40)

Requires approval by a majority vote of the BOD/BOT and approval by at least 2/3 of the outstanding capital stock/membership. Includes all stockholders with or without voting rights 4. Increasing/decreasing capital stock (Sec. 38)

8. Investment of funds in another business (Sec. 42)

Requires approval by a majority vote of the BOD and approval by at least 2/3 of the outstanding capital stock.

Requires approval by a majority vote of the BOD/BOT and approval by at least 2/3 of the outstanding capital stock/membership.



5. Incurring, creating, increasing bonded indebtedness (Sec. 38)

9. Dividend declaration (Sec. 43)

Requires approval by a majority vote of the BOD and approval by at least 2/3 of the outstanding capital stock.

No stock dividend shall be issued without the approval of stockholders representing not less than 2/3 of the outstanding capital stock.


10. Power to enter into management contracts (Sec. 44)

6. Issuance of shares not subject to pre-emptive right (Sec. 39)

Please see discussion under By a Majority Vote

161

UP LAW BOC

CORPORATION CODE

11. Removal of directors or trustees (Sec. 28)

MERCANTILE LAW

His act may be ratified by a vote of the stockholders owning or representing at least 2/3 of the outstanding capital stock.

Any director or trustee may be removed from office by a vote of the stockholders holding or representing at least 2/3 of the outstanding capital stock/membership.

14. Stockholders’ approval of the plan of merger or consolidation (Sec. 77)

12. Ratifying contracts with respect to dealings with directors/ trustees (Sec. 32)

Requires approval by majority of each of the BOD/BOT of the constituent corporations of the plan of merger or consolidation and approval by at least 2/3 of the outstanding capital stock/membership of each corporation at separate corporate meetings duly called.

A contract of the corporation with one or more of its directors is voidable, at the option of such corporation, unless all the following conditions are present: (1) The director’s presence in the BOD meeting in which the contract was approved was not necessary to constitute a quorum (2) The vote of such director was not necessary for the approval of the contract (3) The contract is fair and reasonable under the circumstances (4) In case of an officer, the contract has been previously authorized by the BOD.

Amendments to the plan of merger or consolidation also requires approval by majority vote of each of the BOD and 2/3 vote of the outstanding capital stock/membership of each corporation voting separately. Includes all stockholders with or without voting rights 15. Distribution of corporations (Sec. 95)

Where any of the first two conditions is absent, in the case of a contract with a director, such contract may be ratified by the vote of the stockholders representing at least 2/3 of the outstanding capital stock provided that the contract is fair and reasonable under the circumstances.

assets

in

non-stock

The BOT shall, by majority vote, adopt a resolution recommending a plan of distribution which shall be approved by at least 2/3 of the members with voting rights. 16. Incorporation of a religious society (Sec. 116)

13. Ratifying acts of disloyalty of a director (Sec. 34)

Any religious society or religious order, or any diocese, synod, or district organization of any religious denomination, sect or church, unless forbidden by the constitution, rules, regulations, or discipline of the religious denomination, sect or church of which it is a part, or by competent authority, may, upon written consent and/or by an affirmative vote at a meeting called for the purpose of at least 2/3 of its membership, incorporate for the administration of its temporalities or for the

General Rule Where a director, by virtue of his office, acquires for himself a business opportunity which should belong to the corporation, thereby obtaining profits, he must account to the corporation for all such profits by refunding it. Exception

162

UP LAW BOC

CORPORATION CODE

management of its affairs, properties and estate.

MERCANTILE LAW

17. Voluntary dissolution of a corporation (Sec. 118-119)

(2) Stock dividends, even if already declared, may be revoked prior to actual issuance since these are not distributions but merely representations of changes in the capital structure.

Requires a resolution adopted by a majority vote of the BOD/BOT, and by a resolution duly adopted by the affirmative vote of the stockholders owning at least 2/3 of the outstanding capital stock/membership at a meeting to be held upon call for such purpose.

Note: Right to dividends vests upon declaration so whoever owns the stock at such time also owns the dividends. Subsequent transfer of stock would not carry with it right to dividends UNLESS agreed upon by the parties.

C.2. RIGHT OF APPRAISAL

iii. By Cumulative Voting Election of Directors or Trustees (Sec. 24) - A stockholder may vote such number of shares for as many persons as there are directors to be elected or he may cumulate said shares and give one candidate as many votes as the number of directors to be elected multiplied by the number of his shares shall equal, or he may distribute them on the same principle among as many candidates as he shall see fit:

Right to withdraw from the corporation and demand payment of the fair value of the shares after dissenting from certain corporate acts involving fundamental changes in corporate structure (Sec. 81). The amount paid to the stockholder is the fair value of his shares as of the day prior to the date on which the vote was taken, excluding any appreciation or depreciation in anticipation of the corporate action (Sec. 82).

Provided, That the total number of votes cast by him shall not exceed the number of shares owned by him as shown in the books of the corporation multiplied by the whole number of directors to be elected.

i. Instances of appraisal right (1) Extension or reduction or corporate term (Sec. 81) (2) Amendment to Articles of Incorporation which involves change in the rights of stockholders, authorize preferences superior to those stockholders, or restrict the right of any stockholder (Sec. 81) (3) Investment of corporate funds in another business or purpose (Sec. 42) (4) Sale or disposal of all or substantially all assets of the corporation (Sec. 81) (5) Merger or consolidation (Sec. 81)

C. PROPRIETARY RIGHTS C.1. RIGHT TO DIVIDENDS General Rule The right to dividends vests upon lawful declaration by the BOD. From that time, dividends become a debt owing to the shareholders. No revocation can be made.

ii. Requirements for exercise of appraisal right (Secs. 82, 86) (1) Stockholder must have voted against the corporate act. (2) Stockholder must make a written demand on the corporation within 30 days after the

Exceptions (1) Dividends are revocable if NOT yet announced or communicated to the stockholders.

163

UP LAW BOC

CORPORATION CODE

vote was taken for payment of the fair value of his shares (failure to make demand within such period shall be deemed waiver of the appraisal right). (3) Stockholder must submit his certificates of stock to the corporation for notation within 10 days after demand for payment. Otherwise, right to appraisal may be terminated at the option of corporation.

MERCANTILE LAW

ii. Records/Books to be Kept (Sec. 74) (1) Books that record all business transactions of the corporation which shall include contract, memoranda, journals, ledgers, etc; (2) Minute book for meetings of the stockholders/members; (3) Minute book for meetings of the board/trustees; (4) Stock and transfer book

iii. Effect of demand (Sec. 83) ALL rights accruing to such shares, including voting and dividend rights, shall be suspended

Stock transfer agent - One engaged principally in the business of registering transfers of stocks in behalf of a stock corporation (licensed by the SEC).

EXCEPT the right of such stockholder to receive payment of the fair value thereof

The corporate secretary is the one duly authorized to make entries in the stock and transfer book.

Immediate RESTORATION of voting and dividend rights if the dissenting stockholder is not paid the value of his shares within 30 days after the award.

It is the corporate secretary's duty and obligation to register valid transfers of stocks and if said corporate officer refuses to comply, the transferor-stockholder may rightfully bring suit to compel performance. [Torres et al v. CA (1997)]

iv. Extinguishment of appraisal right (Sec. 84) (1) Withdrawal of demand by the stockholder WITH CONSENT of the corporation (2) Abandonment of the proposed action (3) Disapproval by SEC of the proposed action

iii. Financial Statements (Sec. 75) Within 10 days from written request, the corporation shall furnish its most recent financial statement (balance sheet and profit or loss statement as of last taxable year)

C.3. RIGHT TO INSPECT i. Basis of Right As the beneficial owners of the business, the stockholders have the right to know the financial condition and management of corporate affairs.

At a regular meeting, the Board shall present a financial report of the operations of the corporation for the preceding year, which shall include financial statements duly signed and certified by an independent CPA.

A stockholder’s right of inspection is based on his ownership of the assets and property of the corporation. Therefore, it is an incident of ownership of the corporate property, whether this ownership or interest is termed an equitable ownership, a beneficial ownership, or quasi-ownership. Such right is predicated upon the necessity of self-protection. [Gokongwei Jr. v. SEC (1979)]

Exception If the paid-up capital is less than P50,000 – the financial statements may be certified under oath by the treasurer or any responsible officer of the corporation (instead of an independent CPA).

164

UP LAW BOC

CORPORATION CODE

iv. Requirements for the exercise of the right of inspection (Sec. 74) (1) It must be exercised at reasonable hours on business days and in the place where the corporation keeps all its records (i.e., principal office). (2) The stockholder has not improperly used any information he secured through any previous examination. (3) Demand is made in good faith or for a legitimate purpose. If the corporation or its officers contest such purpose or contend that there is evil motive behind the inspection, the burden of proof is with the corporation or such officer to show the same.

MERCANTILE LAW

purpose in making his demand." [Gonzales v. PNB (1983)] Directors of a corporation have the unqualified right to inspect the books and records of the corporation at all reasonable times. The right of inspection is not to be denied on the ground that the director or shareholder is on unfriendly terms with the officers of the corporation whose records are sought to be inspected. A director or stockholder can make copies, abstracts, and memoranda of documents, books, and papers as an incident to the right of inspection, but cannot, without an order of a court, be permitted to take books from the office of the corporation. However, a director or stockholder does not have any absolute right to secure certified copies of the minutes of the corporation until these minutes have been written up and approved by the directors. [Veraguth v. Isabela Sugar (1932)]

TEST to determine whether the purpose is legitimate – A legitimate purpose is one which is germane to the interests of the stockholder as such and not contrary to the interests of the corporation. [Gokongwei v. SEC (1979)]

A stockholder of a sequestered company has the right to inspect and/or examine the records of the corporation pursuant to Sec. 74 of the Corporation Code. [Africa v. PCGG (1992)]

Among the changes introduced in the new Code with respect to the right of inspection granted to a stockholder are the following: (1) The records must be kept at the principal office of the corporation; (2) The inspection must be made on business days; (3) The stockholder may demand a copy of the excerpts of the records or minutes; (4) The refusal to allow such inspection shall subject the erring officer or agent of the corporation to civil and criminal liabilities. However, while seemingly enlarging the right of inspection, the new Code has prescribed limitations to the same. It is now expressly required as a condition for such examination that the one requesting it must not have been guilty of using improperly any information through a prior examination, and that the person asking for such examination must be "acting in good faith and for a legitimate

v. Remedies when inspection is refused (1) Mandamus (2) Injunction (3) Action for damages (4) File an action under Sec. 144 to impose a penal offense by fine and/or imprisonment Refusal to allow inspection is a criminal offense. Such refusal, when done in violation of Sec 74(4) of the Corporation Code, properly falls within the purview of Sec. 144 of the same code and thus may be penalized as an offense. [Yujuico and Sumbilla v Quiambao and Pilapil (2014)] Because the obligations provided for in Sec. 74 fall on the corporation, violation of the same is 165

UP LAW BOC

CORPORATION CODE

done by the corporation; thus criminal action based on such violation can only be maintained against corporate officers or other such persons acting on behalf of the corporations.

MERCANTILE LAW

intention is to include it in its application. (SEC Opinion, 14 January 1993). A pre-emptive right is a right claimed against the corporation on unissued shares of its capital stock, and likewise on treasury shares held by the corporation; while the right of first refusal is a right exercisable against another stockholder on his shares of stock. [Villanueva]

C.4. PRE-EMPTIVE RIGHT i. Definition and Distinguished from Right of First Refusal

Basis of Preemptive Right: to preserve the existing proportional rights of the stockholders [Campos]

Pre-emptive right is an option privilege of an existing stockholder to subscribe to a proportionate part of shares subsequently issued by the corporation before the same can be disposed of in favor of others; this right includes all issues and disposition of shares of any class. It is a common law right and may be exercised by stockholders even without legal provision. On the other hand, a right of first refusal arises only by virtue of contract stipulations, by which the right is strictly construed against the right of person to dispose or deal with their property.

ii. Limitations to exercise of pre-emptive right (Sec. 39) 



Stockholders of a corporation shall enjoy preemptive right to subscribe to ALL ISSUES OR DISPOSITIONS OF SHARES OF ANY CLASS, in proportion to their respective shareholdings. The purpose is to enable the shareholder to retain his proportionate control in the corporation and to retain his equity in the surplus.





Note: The broad phrase “all issues or disposition of shares of any class” is construed to include not only new shares issued in pursuance of an increase in capital stock or from the unissued shares which form part of the ACS, but also covers “treasury shares.” Treasury shares would come under the term “disposition.” Likewise considering that it is not included among the exceptions enumerated therein, where pre-emptive right shall not extend, the

Such pre-emptive right shall NOT extend to shares to be issued in compliance with laws requiring stock offerings or minimum stock ownership by the public; It shall also NOT extend to shares to be issued in good faith with the approval of the stockholders representing 2/3 of the outstanding capital stock, in exchange for property needed for corporate purposes or in payment of a previously contracted debt It shall not take effect if denied in the Articles of Incorporation or an amendment thereto. If one shareholder does not want to exercise his pre-emptive right, the other shareholders are not entitled to purchase the corresponding shares of the shareholder who declined. But if nobody purchased the same and later on the board re-issued the shares, the pre-emptive right applies. [Sundiang and Aquino]

iii. Remedies in case of unwarranted denial   

166

Injunction Mandamus The suit should be individual and not derivative because the wrong done is to the stockholders individually

UP LAW BOC 

CORPORATION CODE

SEC can cancel shares if the 3rd party is not innocent

The right of first refusal provides that a stockholder who may wish to sell or assign his shares must first offer the shares to the corporation or to the other existing stockholders under terms and conditions which are reasonable; and that only when the corporation or the other stockholders do not or fail to exercise their option, is the offering stockholder at liberty to dispose of his shares to third parties.

iv. Waiver/ Denial of Preemptive Right 



Allowed by the Code provided that it is made in the Articles of Incorporation o Waiver made through Articles of Incorporation – would bind present and subsequent shareholders o 2/3 vote of the outstanding capital stock is necessary before waiver is binding o Result of Non-placement of waiver clause in Articles of Incorporation: waiver shall not bind future stockholders but only those who agreed to it The shareholders must be given reasonable time within which to exercise their pre-emptive rights. Upon expiration of such period, any shareholders who did not exercise such will be deemed to have waived it. This is necessary so as to not hinder future financing plans of the corporation. Some new investors may be willing to invest only if all the new shares will be issued to them [Campos].

An agreement entered into between the two majority stockholders of a corporation whereby they mutually agreed not to sell, transfer, or otherwise dispose of any part of their shareholdings till after one year from the date of the agreement. [Lambert v. Fox (1914)] The right of first refusal is primarily an attribute of ownership, and consequently can be effected only through a contractual commitment by the owner of the shares; consequently, the waiver of a right of first refusal when duly constituted can be effected only by the registered owner. [PCGG v. SEC, unreported (1988)]

D. REMEDIAL RIGHTS D.1. INDIVIDUAL SUIT

C.5. Right to Vote 

    

MERCANTILE LAW

A suit brought by the shareholder in his own name against the corporation when a wrong is directly inflicted against him.

Non-voting shares are not entitled to vote except as provided for in the last paragraph of Sec. 6. Preferred or redeemable shares may be deprived of the right to vote Fractional shares of stock cannot be voted Treasury shares have no voting rights as long as they remain in the treasury. No delinquent stock shall be voted (Sec. 71) A transferee of stock cannot vote if his transfer is not registered in the stock and transfer book of the corporation.

D.2. REPRESENTATIVE SUIT A suit brought by the stockholder in behalf of himself and all other stockholders similarly situated when a wrong is committed against a group of stockholders.

D.3. DERIVATIVE SUIT A suit is brought by a stockholder for wrongful acts committed by directors/trustees of the corporation, when the stockholder finds that

C.6. RIGHT OF FIRST REFUSAL 167

UP LAW BOC

CORPORATION CODE

he has no redress because the directors/trustees are the ones vested by law to decide whether or not to sue.

MERCANTILE LAW

Requisites of a Derivative Suit according to Jurisprudence [SMC v. Kahn, 1989] (1) the party bringing the suit should be a shareholder as of the time of the act or transaction complained of, the number of his shares not being material; (2) he has tried to exhaust intra-corporate remedies, i.e., has made a demand on the BOD for the appropriate relief but the latter has failed or refused to heed his plea; and (3) the cause of action actually devolves on the corporation, the wrongdoing or harm having been, or being caused to the corporation and not to the particular stockholder bringing the suit. [Lisam Enterprises, Inc., represented by Lolita A. Soriano and Lolita A. Soriano v. Banco de Oro Unibank, Inc., et al., 2012]

Derivative Suit as defined in jurisprudence It is a suit by a shareholder to enforce a corporate cause of action. The corporation is a necessary party to the suit, and the relief which is granted is a judgment against a third person in favor of the corporation. [Chua v. CA (2004)] It is a suit brought by one or more stockholders/members in the name and on behalf of the corporation to redress wrongs committed against it, or protect/vindicate corporate rights whenever the officials of the corporation refuse to sue, or the ones to be sued, or has control of the corporation. [Sundiang and Aquino]

NOTE: The “wrong” contemplated in a derivative suit is one in which the injury alleged be indirect as far as the stockholders are concerned and direct only insofar as the corporation is concerned. [De Leon]

Suits of stockholders based on wrongful or fraudulent acts of directors or other persons. Requisites of Derivative Actions (1) That the person instituting the action be a stockholder or member at the time the acts or transactions subject of the action occurred and the time the action was filed; (2) That the stockholder or member exerted all reasonable efforts, and alleges the same with particularity in the complaint, to exhaust all remedies available under the Articles of Incorporation, by-laws, laws or rules governing the corporation or partnership to obtain the relief he desires. (3) That there is no appraisal right available for the act(s) complained of; (4) That the benefit recovered by the stockholder/member in such suit is accounted for the corporation; and (5) That the suit is not a nuisance or harassment suit. (Rule 8, Interim Rules of Procedure for Intra-Corporate Controversies)

Corporation should be made a party to the suit, either as plaintiff or defendant, for res judicata to apply. BUT the personal injury suffered by the stockholder cannot disqualify him from filing a derivative suit in behalf of the corporation. It merely gives rise to an additional cause of action for damages against the erring corporate officers. [Gochan v. Young (2001)] Requisites based on jurisprudence Evangelista vs. Santos (1950); SMC v. Kahn (1989): The cause of action actually devolves on the corporation, the wrong or harm having been, or being caused to it and not the shareholder filing the suit. Symaco Trading Corp. v. Santos (2005): The reliefs sought pertain to the corporation.

168

UP LAW BOC

CORPORATION CODE

Recent rulings on the matter 



MERCANTILE LAW

A subscription contract is unconditional (i.e., obligation to pay is not be subject to any contingency) and indivisible (as to the amount and transferability — [Fua Cun v. Summers, (1923)]. Hence, if the subscriber paid 20% of his subscription, he is not entitled to the issuance of certificates corresponding to 20% of the shares.

Status of heirs as co-owners of shares before partition of estate does not make them shareholders until there is compliance with Sec. 63 on the manner of transferring shares, thus the heirs are not automatically registered shareholders of the corporation. [Reyes v. RTC of Makati (2008)] Stockholder may commence a derivative suit “for mismanagement, waste or dissipation of corporate assets because of a special injury to him for which he is otherwise without redress. In effect, the suit is an action for specific performance of an obligation owed by the corporation to the stockholders to assist its right of action when the corporation is put on default by the wrongful refusal of the directors or management to make suitable measures for its protection.” [Yu v. Yukayguan (2009)]

Unpaid claim refers to any unpaid subscription and not to any indebtedness which a subscriber may owe the corporation rising from any other transaction. [China Banking Corp. v. CA (1997)]

E.2. LIABILITY TO THE CORPORATION FOR INTEREST ON UNPAID SUBSCRIPTION IF SO REQUIRED BY THE BY-LAWS (SEC. 66) General Rule: Subscribers for stock are NOT liable to pay interest on his unpaid subscription

The power to sue and be sued in any court by a corporation even as a stockholder is lodged in the BOD that exercises its corporate powers and not in the president or officer thereof. But where corporate directors are guilty of a breach of trust, not of mere error of judgment or abuse of discretion, and intra-corporate remedy is futile or useless, a shareholders may institute a derivative suit in behalf of himself and other stockholders and for the benefit of the corporation, to bring about a redress of the wrong inflicted directly upon the corporation and indirectly upon the stockholders. [Bitong v. CA (1998)]

Exception: If so required in the by-laws at the rate fixed in the by-laws. If no rate is fixed in the by-laws, such rate shall be deemed to be the legal rate (Sec. 66) Notes: Transfer for consideration of treasury shares is a sale (or disposition) by the corporation (not subscription). A transfer of previously issued shares by a stockholder to a third person is a sale (or disposition). Transfer of unissued shares is subscription. Shareholders are not creditors of the corporation with respect to their shareholdings thereto and the principle of compensation or set-off has no application.

Jurisdiction over derivative suits lies with the RTC (Sec. 5.2, Securities Regulation Code)

E. OBLIGATION OF A STOCKHOLDER

Subscription contract is NOT required to be in writing.

E.1. LIABILITY TO THE CORPORATION FOR UNPAID SUBSCRIPTION (SEC. 67) 169

UP LAW BOC

CORPORATION CODE

E.3. LIABILITY FOR WATERED STOCKS (SEC. 65)

MERCANTILE LAW

On the issue of the solidary obligation of the corporate officers impleaded vis-à-vis the corporation for Mapua’s illegal dismissal, "[i]t is hornbook principle that personal liability of corporate directors, trustees or officers attaches only when: (a) they assent to a patently unlawful act of the corporation, or when they are guilty of bad faith or gross negligence in directing its affairs, or when there is a conflict of interest resulting in damages to the corporation, its stockholders or other persons; (b) they consent to the issuance of watered down stocks or when, having knowledge of such issuance, do not forthwith file with the corporate secretary their written objection; (c) they agree to hold themselves personally and solidarily liable with the corporation; or (d) they are made by specific provision of law personally answerable for their corporate action. [SPI Technologies Inc. v Mapua (2014)]

i. Definition These are shares issued as fully paid when in truth no consideration is paid, or the consideration received is known to be less than the par value or issued value of the shares. (Sec. 65) These include the following:  Issued without consideration (bonus share)  Issued as fully paid when the corporation has received less sum of money than its par or issued value (discounted share)  Issued for consideration other than actual cash (i.e., property or services), the fair valuation of which is less than its par or issued value  Issue stock dividend when there are no sufficient retained earnings or surplus profit to justify it.

E.4. LIABILITY FOR UNLAWFULLY PAID

Note: Subsequent increase in the value of the property used in paying the stock does not do away with the watered stocks. Subsequent increase in the value of the property used in paying the stock does not cure the defect in issuance. The existence of watered stocks is determined at the time of issuance of the stock.

DIVIDENDS

ii. Liability of directors or officers

When a director, trustee or officer attempts to acquire or acquires, in violation of his duty, any interest adverse to the corporation in respect of any matter which has been reposed in him in confidence, as to which equity imposes a disability upon him to deal in his own behalf, he shall be liable as a trustee for the corporation and must account for the profits which otherwise would have accrued to the corporation (Sec. 31).

Any director or officer of a corporation consenting to the issuance of watered stocks or who, having knowledge thereof, does not forthwith express his objection in writing and file the same with the corporate secretary shall be SOLIDARILY liable with the stockholder concerned to the corporation and its creditors for the difference in value (Sec. 65).

Violations of any of the provisions of the Corporation Code not otherwise specifically penalized therein shall be punished by a fine of not less than one thousand (P1,000.00) pesos but not more than ten thousand (P10,000.00) pesos or by imprisonment for not less than thirty (30) days but not more than 5 years, or both, in the discretion of the court (Sec. 144).

170

UP LAW BOC

CORPORATION CODE

E.5. LIABILITY FOR ASSUMING TO ACT AS A CORPORATION KNOWING IT TO BE WITHOUT AUTHORITY



MERCANTILE LAW

owners, unless there is a written proxy, signed by all the co-owners(Sec. 56) Any one of the joint owners of shares owned in an "and/or" capacity or a proxy thereof(Sec. 56)

All persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all debts, liabilities and damages incurred or arising as a result thereof.

F.1. REGULAR OR SPECIAL

When any such ostensible corporation is sued on any transaction entered or on any tort committed by it as a corporation, it shall not be allowed to use as a defense its lack of corporate personality.

When? (Sec. 50) Regular meetings of stockholders or members shall be held annually on a date fixed in the by-laws, or if not so fixed, on any date in April of every year as determined by the BOD or trustees.

i. When and Where

One who assumes an obligation to an ostensible corporation cannot resist performance thereof on the ground that there was in fact no corporation (Sec. 21).

Where?  Stock: City or municipality where the principal office of the corporation is located, or, if practicable, in the principal office of the corporation: Provided, Metro Manila shall be considered a city or municipality. (Sec. 51)  Non-stock: Any place even outside the place where the principal office is located, within the Philippines (Sec. 93)

F. MEETINGS General Rule: Stockholders’ or members’ approval is expressed in a meeting duly called and held for the purpose. Exception: In case of amendment of Articles of Incorporation, approval may be expressed by referendum or written assent of the stockholders or members (Sec. 16)

ii. Notice Notice (Sec. 50)  Regular Meeting—written notice sent to all shareholders or members at least 2 weeks prior to the meeting, unless a different period is required by the by-laws  Special Meeting—written notice sent at least 1 week prior to the meeting, unless otherwise provided in the by-laws.  Subject to waiver, expressly or impliedly (i.e., attendance despite no notice)

Who May Attend and Vote?  Stockholders, either in person or by proxy  Pledgors or mortgagors (Sec. 55)  Pledgee or mortgagee, IF expressly given such right by the pledgor or mortgagor in writing which is recorded on the corporate books(Sec. 55)  Executors, administrators, receivers, and other legal representatives duly appointed by the court, without need of any written proxy(Sec. 55)  ALL joint owners of stocks, or any one of them with the consent of ALL the co-

Effect of Failure to Give Notice: Failure to give notice would render a meeting VOIDABLE at the instance of an absent stockholder, who was not notified of the meeting (Board v. Tan, 1959).

F.2. WHO CALLS THE MEETINGS 171

UP LAW BOC

CORPORATION CODE   

Any petitioning stockholder or member upon order of the SEC when there is no person authorized to call a meeting. (Sec. 50)

 

F.3. WHO PRESIDES AT THE MEETINGS The president, unless the by-laws provide otherwise.(Sec. 54)

MERCANTILE LAW

how the meeting was authorized; the notice given; whether the meeting was regular or special, if special its object; those present and absent; and every act done or ordered done at the meeting.

Upon demand by any director/trustee or shareholders/member, the following shall also be noted in the minutes:  the time when any director, trustee, stockholder or member entered or left the meeting;  the yeas and nays on any motion or proposition;  the protest of any director/trustee or stockholder/member on any action or proposed action.

The petitioning stockholder or member (when there is no person authorized to call a meeting) shall preside thereat until at least a majority of the stockholders or members present have chosen one of them as presiding officer.(Sec. 50)

F.4. QUORUM General Rule: Stockholders representing majority of the Outstanding Capital Stock or majority of the members

Notes: The minutes of any meetings shall be open to inspection by any director/trustee or stockholder/member at reasonable hours on business days.

Exception: The Code or the by-laws provide otherwise Where quorum is present at the start of a lawful meeting, stockholders present cannot without justifiable cause break the quorum by walking out from said meeting so as to defeat the validity of any act proposed and approved by the majority. (However, stockholders can break the quorum for justifiable causes.) (Johnston vs. Johnston, 1965 CA decision)

The director/trustee or stockholder/member may demand, in writing, for a copy of excerpts from said records or minutes, at his expense. Any officer or agent of the corporation refusing to allow the examination and copying of the minutes shall be: (1) liable to the director/trustee or stockholder/ member; and (2) guilty of an offense punishable under Sec. 144 (Sec. 74)

F.5. MINUTES OF THE MEETINGS

However, the officer of agent may use as a defense that: (1) the person demanding examination or copy thereof made improper use of any information secured through any prior examination of the records or minutes of

A record of all the minutes of all meetings of stockholders or members, or of the BOD or trustees shall be kept and preserved at the principal office of every corporation. Contents:  time and place of holding the meeting; 172

UP LAW BOC

CORPORATION CODE

such corporation or of any other corporation thereby; (2) the person demanding examination or copy acts in bad faith or has no legitimate purpose in making his demand.

MERCANTILE LAW

whether the consideration is fully paid or not).  Once a subscription contract is perfected, the stockholder becomes a debtor to the corporation and may be liable to pay any unpaid portion thereof upon call by the BOD. (2) By acquisition of already issued shares through: (a) purchase of TREASURY SHARES from the corporation (b) acquisition of shares from existing shareholders by SALE OR ANY OTHER CONTRACT [Sundiang and Aquino]

XIV. Capital Structure A. SUBSCRIPTION AGREEMENTS Any contract for the acquisition of unissued stock in an existing corporation or a corporation still to be formed shall be deemed a subscription contract (Sec. 60).

A. 1. CHARACTERISTICS A subscription is a contract for the acquisition of unissued stock of a corporation whether existing or still to be formed, and is in effect the contribution or promised contribution of a person to the capital of a corporation [Campos].

NOTES Transfer of unissued shares = SUBSCRIPTION Transfer of already issued shares = NOT SUBSCRIPTION; can either be:  SALE/DISPOSITION BY CORPORATION of treasury shares  SALE/DISPOSITION BY STOCKHOLDER TO A THIRD PERSON

There can be a subscription only with reference to unissued shares of the Authorized Capital Stock (ACS), in the following cases: (1) The original issuance of the ACS at the time of incorporation. (2) The opening, during the life of the corporation, of the portion of the original ACS previously unissued; or (3) The increase in ACS achieved through a formal amendment of the Articles and registration thereof with the SEC. [Villanueva]

A. 3. TYPES OF SUBSCRIPTION CONTRACTS I. PRE-INCORPORATION SUBSCRIPTION (SEC. 61) It is a subscription for shares of stock of a corporation still to be formed. When pre-incorporation subscription is IRREVOCABLE: (1) For a period of at least 6 months from the date of subscription, UNLESS (a) all of the other subscribers consent to the revocation, or (b) the incorporation fails to materialize within 6 months or within a longer period as may be stipulated in the contract of subscription; or

A. 2. STATUS AS SHAREHOLDER One may become a shareholder in a corporation in either of two ways: (1) By entering into a SUBSCRIPTION CONTRACT with an existing or still to be formed corporation (he becomes a stockholder upon acceptance of the corporation of his offer to subscribe

173

UP LAW BOC

CORPORATION CODE

(2) After the submission of the Articles of Incorporation to the SEC.

 

II. POST-INCORPORATION SUBSCRIPTION

MERCANTILE LAW

Labor performed for or services actually rendered to the corporation; Amounts transferred from unrestricted retained earnings to stated capital (declaration of stock dividends); and Outstanding shares exchanged for stocks in the event of reclassification or conversion; Previously incurred indebtedness of the corporation;

It is entered into after incorporation.



A. 4. INTEREST ON UNPAID SUBSCRIPTION



General Rule Stockholder is NOT liable to pay interest on his unpaid subscription.

B. 2. LIMITATIONS ON CONSIDERATION Stocks shall NOT be issued:  for a consideration less than the par or issued price thereof  in exchange for promissory notes or future service

Exception If so required by the by-laws RATE: that fixed in the by-laws, otherwise, the legal rate (Sec. 66)

NOTES Promissory notes and future service may be used as consideration provided that certificates of stock will be issued ONLY AFTER actual encashment of promissory note or performance of such services.

NOTES Shareholders are NOT creditors of the corporation with respect to their shareholdings thereto and the principle of compensation or set-off has no application.

C. SHARES OF STOCK

Subscription contract is NOT required to be in writing.

C. 1. NATURE OF STOCK

B. CONSIDERATION FOR STOCKS

Shares of stock are units into which the capital stock is divided. A share of stock represents interest of the holder thereof to participate in the management of the corporation, to share proportionally in the profits of the business and, upon liquidation, to obtain an aliquot part of corporate assets after all corporate debts have been paid. [Campos]

B. 1. FORMS OF CONSIDERATION (SEC. 62)  

Actual cash Property, tangible or intangible, actually received by the corporation and necessary or convenient for its use and lawful purposes at a fair valuation equal to the par or issued value of the stock issued - Property should NOT be encumbered. Otherwise, it would impair the consideration. - Valuation is initially determined by the incorporators or the BOD, subject to approval by the SEC.

A stockholder may own the share even if he is not holding a certificate of stock.

174

Share of Stock

Certificate of Stock

Unit of interest in a corporation

Evidence of the holder’s ownership of the stock and of his right as a

UP LAW BOC

CORPORATION CODE shareholder and up to the extent specified therein.

An incorporeal or intangible property May be issued by the corporation even if the subscription is not fully paid



Concrete and tangible 

May be issued only if the subscription is fully paid

MERCANTILE LAW money than its par or issued value (discounted share) Issued for consideration other than actual cash (i.e., property or services), the fair valuation of which is less than its par or issued value Issue stock dividend when there are no sufficient retained earnings or surplus profit to justify it.

NOTE Subsequent increase in the value of the property used in paying the stock does not do away with the watered stocks. Subsequent increase in the value of the property used in paying the stock does not cure the defect in issuance. The existence of watered stocks is determined at the time of issuance of the stock.

Stockholders of F. Guanzon and Sons, Inc. v Register of Deeds of Manila (1962): A share of stock only typifies an aliquot part of the corporation's property, or the right to share in its proceeds to that extent when distributed according to law and equity, but its holder is not the owner of any part of the capital of the corporation. Nor is the shareholder entitled to the possession of any definite portion of its property or assets. The stockholder is not a coowner or tenant in common of the corporate property.

II. LIABILITY OF WATERED STOCKS

DIRECTORS

FOR

Any director or officer of a corporation consenting to the issuance of watered stocks or who, having knowledge thereof, does not forthwith express his objection in writing and file the same with the corporate secretary shall be solidarily liable with the stockholder concerned to the corporation and its creditors for the difference in value (Sec. 65).

C. 2. SUBSCRIPTION AGREEMENTS (SEE ABOVE) C. 3. CONSIDERATION FOR SHARES OF STOCK (SEE ABOVE)

III. TRUST FUND DOCTRINE LIABILITY FOR WATERED STOCKS

C. 4. WATERED STOCK

FOR

Where the corporation issues watered stock and thereby assumes an ostensible capitalization in excess of its real assets, the transaction necessarily involves the misleading of subsequent creditors, and whether done with that purpose actually in mind or not, is at least a constructive fraud upon creditors. Hence, it is held that recovery may be had by a creditor in such case, even though the corporation itself has no cause of action against the stockholders. Some of the earlier decisions put the right of recovery in such a case upon the so-called “trust fund doctrine.”

I. DEFINITION These are shares issued as fully paid when in truth no consideration is paid in any form, or the consideration received is known to be less than the par value or issued value of the shares. (Sec. 65) These include the following:  Issued without consideration (bonus share)  Issued as fully paid when the corporation has received less sum of 175

UP LAW BOC

CORPORATION CODE

In any view of the matter, however, the creditors’ right of action to compel the making good of the representation as to the corporation’s capital is based on fraud, and the trust fund doctrine is only another way of expressing the same underlying idea. [De Leon]

MERCANTILE LAW

privileges or restrictions, as stated in the Articles of Incorporation. Classification of shares: (1) Common shares (2) Preferred shares (a) Preference as to dividends (i) Participating and nonparticipating (ii) Cumulative and noncumulative (3) Par value shares (4) No-par value shares (5) Founder’s shares (6) Redeemable shares (7) Treasury shares (8) Convertible shares (9) Non-voting shares

Despite the view of foreign authors that the fraud theory is the prevailing view, it would seem that in the Philippine jurisdiction, the trust fund doctrine on watered stock prevails. Philippine Trust Corp. v. Rivera (1923): It is established doctrine that subscription to the capital of a corporation constitute a fund to which creditors have a right to look for satisfaction of their claims and that the assignee in insolvency can maintain an action upon any unpaid stock subscription in order to realize assets for the payment of its debts (citing Velasco v. Poizat, 1918). A corporation has no power to release an original subscriber to its capital stock from the obligation of paying for his shares, without a valuable consideration for such release; and as against creditors a reduction of the capital stock can take place only in the manner and under the conditions prescribed by the statute or the charter or the articles of incorporation. Moreover, strict compliance with the statutory regulations is necessary.

General Rule No share may be deprived of voting rights (Sec. 6) Exceptions  Preferred or  Redeemable shares,  Provided by the Code (e.g., Treasury shares) There shall always be a class/series of shares which have COMPLETE VOTING RIGHTS (Sec. 6)

C. 5. SITUS OF THE SHARES OF STOCK Chua Guan v. Samahang Magsasaka, Inc. (1935): It is a general rule that for purposes of execution, attachment and garnishment, it is not the domicile of the owner of a certificate but the domicile of the corporation which is decisive.

Doctrine of Equality of Shares Each share shall be EQUAL in ALL respects to every other share, except as otherwise provided in the Articles of Incorporation and stated in the certificate of stock (Sec. 6)

C. 6. CLASSES OF SHARES OF STOCK Shares of stock of stock corporations may be divided into classes or series of shares or both. Each class or series of shares may have rights,

I. COMMON SHARES The most common type of shares, which enjoy no preference but the owners thereof are entitled to management (via exclusive right to 176

UP LAW BOC

CORPORATION CODE

vote) of the corporation and to equal pro-rata division of profits after preference. It represents a residual ownership interest in the corporation.

MERCANTILE LAW

(a) Cumulative - regardless of lack of profits in any given year, and lack of declaration of dividends, the arrears for such year have to be paid to the preferred stocks in a subsequent year (once profits are made) before any dividends can be paid to the common stocks. (b) Non-Cumulative – entitlement to receipt of dividends essentially depends on declaration of such; types: (i) Discretionary – right to dividends in a particular year depends on the discretion of the board, even if the corporation has profits. (ii) Mandatory – a positive duty is imposed to declare preferred dividends every year that profits are earned. (iii) Earned cumulative or dividend credit – board with discretion not to declare dividends even if there were profits in a certain year; however, once the board decides that dividends will be declared, the preferred stockholders have a right to arrears in dividends for the years when there were profits but no dividend was declared. (c) In the absence of any express stipulation, preferred stocks are deemed cumulative.

II. PREFERRED SHARES Stocks which are given preference by the issuing corporation in dividends, or in the distribution of assets of the corporation in case of liquidation, or both, or such other preferences as may be stated in the Articles of Incorporation which do not violate the Corporation Code. Unless the right to vote is clearly withheld, a preferred stockholder would have such right as it is an incident to stock ownership. Limitations:  Preferred shares can only be issued with par value.  Preferred shares must be stated in the Articles of Incorporation and in the certificate of stock.  The BOD may fix the terms and conditions only when so authorized by the Articles of Incorporation and such terms and conditions shall be effective upon filing a certificate thereof with the SEC. Preference as to dividends: (1) Participating and Non-participating (a) Participating - those which, after getting their fixed dividend preference, share with common stocks the rest of the dividends. (b) Non-participating - those which, after getting their fixed dividend preference, have no more right to share in the remaining dividends with the common stocks. (c) Unless otherwise provided, preferred stocks are non-participating. (2) Cumulative and Non-cumulative

III. PAR VALUE SHARES These are shares with a stated value set out in the Articles of Incorporation. This remains the same regardless of the profitability of the corporation. This gives rise to financial stability and is the reason why banks, trust corporations, insurance companies and building and loan associations must always be organized with par value shares.

177

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

V. FOUNDER’S SHARES (SEC. 7)

Par value is minimum issue price of such share in the Articles of Incorporation which must be stated in the certificate.

These are shares, classified as such in the Articles of Incorporation, which are given certain rights and privileges not enjoyed by the owners of other stocks.

IV. NO-PAR VALUE SHARES These are shares without a stated value.

Where exclusive right to vote and be voted for in the election of directors is granted, such right must be for a limited period not to exceed 5 years subject to approval by SEC. The 5 year period shall commence from date of approval by SEC.

“A no par share does not purport to represent any stated proportionate interest in the capital stock measured by value, but only an aliquot part of the whole number of such shares of the issuing corporation” (Agbayani)

VI. REDEEMABLE SHARES (SEC. 8)

Limitations:  Cannot have an issue price of less than P5.00 per share (Sec. 6)  Once issued, they shall be deemed fully paid and non-assessable and the holders of such shares shall not be liable to the corporation or to its creditors in respect thereto (Sec. 6)  Entire consideration received by the corporation shall be treated as capital and shall not be available for distribution as dividends (Sec. 6)  Articles of Incorporation must state the fact that the corporation issues no-par shares and the number of shares  Cannot be issued as preferred stocks (Sec. 6)  Cannot be issued by banks, insurance companies, trust companies, building and loan associations, and public utilities (Sec. 6)  Issued price may be fixed in the Articles of Incorporation, or by the BOD pursuant to authority conferred upon it by the Articles of Incorporation, or, in the absence thereof, by majority vote of the outstanding shares in a meeting called for the purpose (Sec. 62).

These are shares which permit the issuing corporation to redeem or purchase its shares. Limitations:  Redeemable shares may be issued only when expressly provided for in the Articles of Incorporation (Sec. 8).  The terms and conditions affecting said shares must be stated both in the Articles of Incorporation and in the certificate of stock (Sec. 8).  Redeemable shares may be deprived of voting rights in the Articles of Incorporation.  The corporation is required to maintain a sinking fund to answer for redemption price if the corporation is required to redeem.  The redeemable shares are deemed retired upon redemption unless otherwise provided in the Articles of Incorporation (i.e., if the Articles of Incorporation allows for reissuance of such shares).  Republic Planters Banks v. Agana (1997): unrestricted retained earnings is NOT necessary before shares can be redeemed but there must be sufficient assets to pay the creditors and to answer for operations. 178

UP LAW BOC 

CORPORATION CODE

Redemption cannot be made if such redemption will result in insolvency or inability of the corporation to meet its obligations (SEC Opinion, 24 Aug 1987).

MERCANTILE LAW

VIII. CONVERTIBLE SHARES A type of preferred stock that the holder can exchange for a predetermined number of common shares at a specified time

NOTE Redeemable shares reacquired shall be considered retired and no longer issuable, unless otherwise provided in the Articles of the redeeming corporation (SEC Rules Governing Redeemable and Treasury Shares, 26 April 1982).

IX. NON-VOTING SHARES (SEC. 6) General Rule Non-Voting Shares are not entitled to vote. Exceptions  Amendment of the Articles of Incorporation  Adoption and amendment of by-laws  Sale, lease, exchange, other disposition of all or substantially all of the corporate property  Incurring, creating or increasing bonded indebtedness  Increase or decrease of capital stock  Merger and consolidation  Investment of corporate funds in another corporation or business  Dissolution of the corporation

VII. TREASURY SHARES (SEC. 9) These are shares which have been issued and fully paid for, but subsequently re-acquired by the issuing corporation by purchase, redemption, donation or through some other lawful means. Such shares may again be disposed of for a reasonable price fixed by the BOD. CIR v. Manning (1975) cited in San Miguel Corporation v. Sandiganbayan (2000): Treasury shares are issued shares, but being in the treasury, do not have the status of outstanding shares. Consequently, although a treasury share, not retired by reacquisition, may be reissued or resold, such share, as long as it is held by the corporation as a treasury share, participates neither in the dividends, because dividends cannot be declared by the corporation to itself nor in the meetings of the corporation as voting stock, for otherwise equal distribution of voting powers among stockholders will be effectively lost and the directors will be able to perpetuate their control of the corporation, though it still represents a paid for interest in the property of the corporation.

D. PAYMENT OF BALANCE OF SUBSCRIPTION (SEC. 66 AND 67) D. 1. CALL BY BOD The BOD of any stock corporation may at any time declare due and payable to the corporation unpaid subscriptions to the capital stock and may collect the same or such percentage thereof, in either case with accrued interest, if any, as it may deem necessary. Payment shall be made on the date specified in the contract of subscription or on the date stated in the call. Failure to pay on such date shall render the entire balance due and payable and shall make the stockholder liable for interest at the legal rate on such balance, unless a different rate of interest is provided for in the by-laws. If within 30 days from said date

NOTE Delinquent stocks, which are stocks that have not been fully paid, may become treasury stocks upon bid of the corporation in absence of other bidders (Sec.68). 179

UP LAW BOC

CORPORATION CODE

no payment is made, all stocks covered by said subscription shall become delinquent and subject to sale under Sec. 68 unless the BOD orders otherwise.

MERCANTILE LAW

I. EFFECT OF DELINQUENCY(SEC. 71) No delinquent stock shall be voted for or be entitled to vote or to representation at any stockholders’ meeting

There are 2 instances when call is not necessary to make the subscriber liable for payment of the unpaid subscription: (1) When, under the terms of the subscription contract, subscription is payable, not upon call, but immediately, or on a specified day, or when it is payable in installments at specified times; and (2) If the corporation becomes insolvent, which makes the liability on the unpaid subscription due and demandable, regardless of any stipulation to the contrary in the subscription agreement [Villanueva]

The holder thereof shall NOT be entitled to any of the rights of a stockholder except the right to dividends. But the dividends it will receive will be subject to Sec. 43, that is, cash dividends shall first be applied to the unpaid balance on the subscription plus costs and expenses, and stock dividends shall be withheld until the unpaid subscription is fully paid. Such shares shall be subject to delinquency sale.

II. CALL BY RESOLUTION OF THE BOD (SEC. 68)

D. 2. NOTICE REQUIREMENT Where call is necessary, notice must be given to the stockholder concerned. A call without notice to the subscriber is practically no call at all.

The BOD may, by resolution, order the sale of delinquent stock and shall specifically state the amount due on each subscription plus all accrued interest, and the date, time and place of the sale which shall not be less than 30 days nor more than 60 days from the date the stocks became delinquent, which is 30 days after the date specified in the contract of subscription or on the date stated in the call.

Lingayen Gulf Electric Power Co., Inc. v. Baltazar (1965): The notice is regarded as a condition precedent to the right of recovery. It must, therefore, be alleged and proved to maintain an action for the call. - The right to notice of call, however, may be waived by the subscriber. [De Leon]

III. NOTICE OF SALE If the BOD resolves to proceed with the sale: (1) Notice of sale and a copy of the resolution shall be sent to every delinquent stockholder either personally or by registered mail. (2) Notice of sale shall furthermore be published once a week for 2 consecutive weeks in a newspaper of general circulation in the province or city where the principal office of the corporation is located.

D. 3. SALE OF DELINQUENT SHARES(SEC. 68) Delinquent Shares - These are shares for which the corresponding subscription or balance remains unpaid after a grace period of 30 days from the date specified in the contract of subscription or from the date stated in the call made by the BOD. (Sec. 67)

180

UP LAW BOC

CORPORATION CODE

bidder that will pay the full amount of the balance of subscription with accrued interest, costs and expenses of the sale, for the smallest number of shares or fraction of a share. The stock so purchased shall be transferred to such purchases in the books of the corporation and a certificate of such stock shall be issued in his favor. The remaining shares, if any, shall be credited in favor of the delinquent stockholder who shall likewise be entitled to the issuance of a certificate of stock covering such shares.

IV. AUCTION SALE AND THE HIGHEST BIDDER Procedure for delinquency sale (Sec. 68)  Call for payment made by the BOD.  Notice of call served on each stockholder.  Notice of delinquency issued by the BOD upon failure of the stockholder to pay within 30 days from date specified.  Service of notice of delinquency on the non-paying subscriber, PLUS publication in a newspaper of general circulation in the province or city where the principal office of the corporation is located, once a week for 2 consecutive weeks.

Irregularities in the delinquency sale (Sec. 69)  Action to recover delinquent stock must be on the ground of irregularity or defect in the notice of sale.  Party seeking to recover must first pay or tender to the party holding the stock the sum for which the same was sold, with interest from the date of sale at the legal rate.  The action must be commenced within 6 months from the date of sale.

NOTE Requirements on notice and publication are mandatory. Lacking such requirements, the stockholder may question the sale as provided under Sec. 69. 

MERCANTILE LAW

E. CERTIFICATE OF STOCK E. 1. NATURE OF THE CERTIFICATE

Public auction - the highest bidder is one who is willing to pay the balance of the subscription for the least number of shares. If there are no bidders, the corporation must bid for the whole number of shares regardless of how much the shareholders has paid. Such stocks will pertain to the corporation as fully paid treasury stocks.

A certificate of stock is an instrument formally issued by the corporation with the intention that the same constitute the best evidence of the rights and status of a shareholders (not a condition precedent to the acquisition of such rights). Makati Sports Club v. Cheng (2010): A certificate of stock is the paper representative or tangible evidence of the stock itself and of the various interests therein. The certificate is not a stock in the corporation but is merely evidence of the holder’s interest and status in the corporation, his ownership of the share represented thereby. It is not in law the equivalent of such ownership. It expresses the contract between the corporation and the stockholder, but is not essential to the existence of a share of stock or

The delinquent stockholder may stop the auction by paying to the corporation on or before the date specified for the sale the balance due on his subscription, plus accrued interest, costs of advertisement and expenses of the sale. Otherwise, the public auction shall proceed and the delinquent shares shall be sold to the 181

UP LAW BOC

CORPORATION CODE

the nature of the relation of shareholder to the corporation.

A transfer made pursuant to the foregoing has the effect of delivery of a security in bearer form or duly indorsed in blank representing the amount of security or right transferred, including the unrestricted negotiability of that security by reason of such delivery.

E. 2. UNCERTIFICATED SHARES Uncertificated Shares/Securities Security evidenced by electronic or similar records (Sec. 3.14, Securities Regulation Code)

 Notwithstanding Sec. 63 of the Corporation Code (certificate of stock and transfer of shares), a corporation whose securities are registered pursuant to the SRC or listed on securities exchange may:  If so resolved by the BOD and agreed by a shareholder, investor or securities intermediary, issue shares to, or record the transfer of some or all its shares into the name of such shareholders, investors or, securities intermediary in the form of uncertified securities

Valid as to corporation – when the transfer is recorded in the books of the corporation so as to show the names of the parties to the transfer and the number of shares transferred (Sec. 43, Securities Regulation Code).

E. 3. NEGOTIABILITY Theory of Quasi-Negotiability A stock certificate is regarded as quasinegotiable only in the sense that it may be transferred by endorsement, coupled with delivery.

The use of uncertified securities in these circumstances shall be without prejudice to the rights of the securities intermediary subsequently to require the corporation to issue a certificate in respect of any shares recorded in its name; and 

MERCANTILE LAW

De los Santos v. Republic (1955): This notwithstanding, it is well-known that the instrument is non-negotiable, because the holder thereof takes it without prejudice to such rights or defenses as the registered owner or creditor may have under the law, except insofar as such rights or defenses are subject to the limitations imposed by the principles governing estoppel. Certificates of stock are not negotiable instruments. Consequently, a transferee under a forged assignment acquires no title which can be asserted against the true owner, unless the latter’s negligence has been such as to create an estoppel against him. If the owner of the certificate has endorsed it in blank, and it is stolen from him, no title is acquired by on innocent purchaser for value.

If so provided in its articles of incorporation and by-laws, issue all of the shares of a particular class in the form of uncertificated securities and subject to a condition that investors may not require the corporation to issue a certificate in respect of any shares recorded in their name.

Transfers of uncertificated securities, how made  Valid as between parties - validly made and consummated by appropriate book-entries in the securities intermediaries, or in the stock and transfer book held by the corporation or the stock transfer agent.

I. REQUIREMENTS TRANSFER OF STOCKS

FOR

VALID

For a valid transfer of stocks, the requirements are as follows:

182

UP LAW BOC

CORPORATION CODE

(1) There must be delivery of the stock certificate; (2) The certificate must be endorsed by the owner or his attorney-in-fact or other persons legally authorized to make the transfer; and (3) Bitong v. CA (1998): To be valid against third parties, the transfer must be recorded in the books of the corporation.

MERCANTILE LAW

Ponce v. Alsons Cement Corp. (2002): The stock and transfer book is the basis for ascertaining the persons entitled to the rights and subject to the liabilities of a stockholder. Where a transferee is not yet recognized as a stockholder, the corporation is under no specific legal duty to issue stock certificates in the transferee’s name. - Citing Hager v. Bryan (1911): A mandamus should not issue to compel the secretary of a corporation to make a transfer of the stock on the books of the company, unless it affirmatively appears that he has failed or refused so to do, upon the demand either of the person in whose name the stock is registered, or of some person holding a power of attorney for that purpose from the registered owner of the stock.

No shares of stock against which the corporation holds an unpaid claim shall be transferable in the books of the corporation (Sec. 63). Republic v. Estate of Hans Menzi (2005): The Corporation Code acknowledges that the delivery of a duly indorsed stock certificate is sufficient to transfer ownership of shares of stock in stock corporations. Such mode of transfer is valid between the parties. In order to bind third persons, however, the transfer must be recorded in the books of the corporation. Clearly then, the absence of a deed of assignment is not a fatal flaw which renders the transfer invalid. - Requisites for a valid transfer per Sec. 63: (1) Between the parties: (a) Delivery (b) Indorsement (2) To be valid as to third persons: (a) Recorded in the books of the corporation

Batangas Laguna Tayabas Bus Co. v. Bitangas (2001): A transfer of shares is not valid unless recorded in the books of the corporation. The purpose of registration is two-fold: (a) to enable the transferee to exercise all the rights of a stockholder, including the right to vote and to be voted for, and (b) to inform the corporation of any change in share ownership so that it can ascertain the persons entitled to the rights and subject to the liabilities of a stockholder. - Until challenged in a proper proceeding, a stockholder of record has a right to participate in any meeting; his vote can be properly counted to determine whether a stockholders’ resolution was approved, despite the claim of the alleged transferee. On the other hand, a person who has purchased stock, and who desires to be recognized as a stockholder for the purpose of voting, must secure such a standing by having the transfer recorded on the corporate books. Until the transfer is registered, the transferee is not a stockholder but an outsider.

Rural Bank of Lipa City v. CA (2001): The execution of a deed of sale does not necessarily make the transfer effective. The delivery of the stock certificate duly indorsed by the owner is the operative act that transfers the shares. The absence of delivery is a fatal defect which is not cured by mere execution of a deed of assignment.

183

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

publication and there is no contest. The right to make such contest shall be barred after the expiration of the oneyear period. (4) Issuance of new certificates before 1 year period if the registered owner files a bond and there is no pending contest regarding the ownership of said certificates.

E. 4. ISSUANCE I. FULL PAYMENT General Rule No certificate of stock shall be issued to a subscriber until the full amount of his subscription together with interest and expenses (in case of delinquent shares), if any is due, has been paid (Sec. 64)

NOTE Except in cases of fraud, bad faith, or negligence on the part of the corporation and its officers, no action may be brought against the corporation which shall have issued certificates of stock in lieu of those lost, stolen or destroyed pursuant to the above procedure.

Exception Baltazar v. Lingayen Gulf Electric Power Company (1965): Where it was the practice of the corporation since its inception to issue certificates of stock to its individual SHs for unpaid shares of stock and to give full voting power to shares fully paid.

F. STOCK AND TRANSFER BOOK

II. PAYMENT PRO-RATA Nava Peers Mktg. Corp. and Fua Cun v. Summers (1923): The entire subscription must be paid first before the certificates of stock can be issued. Partial payments are to be applied pro rata to each share of stock subscribed.

F. 1. CONTENTS

E. 5. LOST CERTIFICATES



OR

 

DESTROYED

Procedure for re-issuance in case of loss, stolen or destroyed certificates: (1) Registered owner to file an affidavit of loss with the corporation. (2) Publication of notice of loss in a newspaper of general circulation published in the place where the corporation has its principal office, once a week for 3 consecutive weeks at the expense of the owner of the certificate of stock (3) Cancellation of the certificate in the books of the corporation and issuance of new certificates, after the expiration of 1 year from the date of the last



a record of all stocks in the names of the stockholders alphabetically arranged; the installments paid and unpaid on all stock for which subscription has been made, and the date of payment of any installment; a statement of every alienation, sale or transfer of stock made, the date thereof, and by and to whom made; and such other entries as the by-laws may prescribe.

F. 2. WHO MAY MAKE VALID ENTRIES (1) An SEC-licensed stock transfer agent; or (2) The Corporate Secretary of the stock corporation provided all rules and regulations imposed on stock transfer agents shall be applicable, except payment of license fee.

G. DISPOSITION ENCUMBRANCE OF SHARES

184

AND

UP LAW BOC

CORPORATION CODE

G. 1. ALLOWABLE RESTRICTIONS ON THE SALE OF SHARES

MERCANTILE LAW

paid subscription to several transferee is that it would be difficult to determine whether or not the partial payments made should be applied as full payment for the corresponding number of shares which can only be covered by such payment or as proportional payment to each and all of the entire number of subscribed shares, and it would be difficult to determine the unpaid balance to be assumed by each transferee. [Villanueva]

General Rule Shares of stock so issued are personal property and may be transferred (Sec. 63). (FREE TRANSFERABILITY OF SHARES) Exception In CLOSE corporations, restrictions on the right to transfer shares may be provided in the Articles of Incorporation, by-laws and certificates (Sec. 98).

G. 4. SALE OF ALL OF SHARES NOT FULLY PAID

G. 2. SALE OF PARTIALLY PAID SHARES

On the other hand, the SEC has opined that the entire subscription, although not yet fully paid, may be transferred to a single transferee, who as a result of the transfer must assume the unpaid balance. It is necessary, however, to secure the consent of the corporation since the transfer of subscription rights and obligations contemplates a novation of contract which under Article 1293 of the Civil Code cannot be made without the consent if the creditor. [Villanueva]

Under Sec. 63 of the Corporation Code, no shares of stock against which the corporation holds any unpaid claim shall be transferable in the books of the corporation. Therefore, a corporation may refuse to acknowledge and register a sale or assignment of shares which are not fully paid, and may continue to hold the original subscriber liable on the payment of the subscription. However, in China Banking Corp. v. CA (1997), the court said that the above principle in section 63 cannot be utilized by the corporation to refuse to recognize ownership over pledged shares purchased at public auction. The term “unpaid claims” refers to “any unpaid claims arising from unpaid subscription, and not to any indebtedness which a subscriber or stockholder may owe the corporation arising from any other transactions. Obligations arising from unpaid monthly dues do not fall within the coverage of Sec. 63.”

G. 5. SALE OF FULLY PAID SHARES Shares of stock so issued are personal property and may be transferred by delivery of the certificate or certificates indorsed by the owner or his attorney-in-fact or other person legally authorized to make the transfer. No transfer however shall be valid except as between the parties until the transfer is recorded in the books of the corporation showing the names of the parties to the transaction, the date of the transfer, the number of the certificate or certificates and the number of shares transferred (Sec. 63)

G. 3. SALE OF A PORTION OF SHARES NOT FULLY PAID

G. .6. REQUISITES TRANSFER

The SEC has opined on several occasions that a stockholder who has not paid the full amount of his subscription cannot transfer part of his subscription in view of the indivisible nature of a subscription contract. The reason behind the principle of disallowing transfer of not fully

OF

A

VALID

Same as requirements for valid transfer of stocks

185

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

XV. Dissolution Liquidation

G. 7. INVOLUNTARY DEALINGS WITH SHARES The right of a stockholder to pledge, mortgage or otherwise encumber his shares is recognized under Sec. 55 of the Corporation Code, which regulates the manner of voting on pledged or mortgaged shares.

and

Dissolution of a corporation is the extinguishment of its franchise and the termination of its corporate existence or business purpose. However, for the purpose only of winding up its affairs and liquidating its assets, its corporate existence continues for a period of 3 years from such dissolution [Sec. 122].

If the restriction on the right to pledge or mortgage shares of stock absolutely prohibits the stockholders from pledging or mortgaging their shares without the consent of the BOD, it would be violative of the statutory right of the stockholders to encumber shares of stock as allowed in Sec. 55. However, when the restriction merely allows the corporation or existing stockholders to accept the offer within the option period, and thereafter, if no one accepts the offer, the stockholder is free to pledge or mortgage his shares in favor of any 3rd party, such provision is reasonable, valid and binding.

Upon dissolution, the corporation ceases to be a juridical person and consequently can no longer continue transacting its business [Campos]. Note: If no dissolution papers are filed with the SEC by a corporation claiming dissolution voluntarily, such corporation is still deemed legally existing, notwithstanding the fact that it has ceased to operate. [De Leon]

By the strict application of Sec. 63 of the Corporation Code to cover only the sale, assignment or absolute disposition of shares of stock, the SC has placed a bias against voluntary sales, assignments or dispositions of shares of stock vis-à-vis pledges, mortgages, attachment or levy thereof. To be valid and binding on third parties, the voluntary sale, assignment or disposition of shares requires the essential element of registration in the stock and transfer book; otherwise the sale, assignment or disposition is considered void as to third parties, even when they have actual notice. Whereas, when it comes to pledge, mortgage, encumbrance, attachment or levy of shares, registration thereof in the stock and transfer book is not essential either for validity or as a species of notifying third parties. [Villanueva].

A. MODES OF DISSOLUTION Based on jurisprudence, the methods of effecting dissolution as prescribed by law are exclusive, and a corporation cannot be dissolved except in the manner prescribed by law. [De Leon]

A.1. VOLUNTARY A.1.A. WHERE NO CREDITORS ARE AFFECTED [SEC. 118] 



186

Notice of the meeting should be given to the stockholders or members by personal delivery or registered mail at least 30 days prior to the meeting. The notice of meeting should also be published for 3 consecutive weeks in a newspaper published in the place where the principal office of said corporation is located. If no newspaper is published in

UP LAW BOC







CORPORATION CODE

such place, then in a newspaper of general circulation in the Philippines. The resolution to dissolve must be approved by the majority of the BOD/BOT and approved by the stockholders representing at least 2/3 of the Outstanding Capital Stock or 2/3 of members. o Non-voting shares are entitled to vote in this matter [Sec. 6. Par 6(8)] A copy of the resolution shall be certified by the majority of the BOD/BOT and countersigned by the secretary. The signed and countersigned copy will be filed with the SEC and the latter will issue the certificate of dissolution.







Note: Daguhoy Enterprises v. Ponce (1954): Thus, except for the expiration of its term, no dissolution can be effective without some act of the State.

A.1.B. WHERE CREDITORS AFFECTED [SEC. 119] 



ARE

A petition shall be filed with the SEC containing the following: o signature by a majority of its BOD or BOT or other officers having management of its affairs; o verified by its president, or secretary or one of its director or trustees; o all claims and demands against the corporation; and o resolved upon by affirmative vote of the stockholders representing at least 2/3 of the Outstanding Capital Stock or 2/3 of members; If the petition is sufficient in form and substance, the SEC shall issue an order fixing the date on or before which objections to the petition may be filed. Such date shall not be less than 30 days

MERCANTILE LAW

nor more than 60 days after the entry of the order. A copy of the order shall be published at least once a week for 3 consecutive weeks in a newspaper of general circulation, or if there is no newspaper in the city or municipality of the principal office, posting for 3 consecutive weeks in 3 public places is sufficient. A hearing shall be conducted 5 days after the lapse of the expiration of the time to file objections. If the objections are insufficient or the material facts in the petition are true, judgment shall be rendered dissolving the corporation and directing the disposition of assets. The judgment may include appointment of a receiver. o As long as 2/3 vote is obtained, no member/ stockholder can prevent such dissolution unless the majority stockholders acted in bad faith. The latter may be held liable for damages [Campos]. o Even where there are creditors of the corporation who may be prejudiced by the dissolution, it is still possible for the corporation to terminate its existence prior to the expiration of its term, provided said creditors are given the opportunity to present their claims and objections so that their interests may be protected [Campos].

A.1.C. BY SHORTENING OF CORPORATE TERM A voluntary dissolution may be effected by amending the Articles of Incorporation to shorten the corporate term; and upon approval of the expired shortened term, the corporation shall be deemed dissolved without any further proceedings.

187

UP LAW BOC

CORPORATION CODE

A publication of notice of dissolution is required and cannot be dispensed with by alleging that it was not required in Sec. 120 and that no creditors will be prejudiced by its dissolution. [SEC Opinion, August 30, 1988]

MERCANTILE LAW  

SEC Opinion No. 06-20, March 13, 2006:  If the shortened term expires before the SEC approval  the corporation will be dissolved upon the SEC approval  If the shortened term expires after the SEC approval  the corporation will be dissolved upon the expiration of the shortened term  If SEC fails to act within 6 months from filing of the amended Articles of Incorporation and shortened term expires after the 6-month period  the corporation will be dissolved upon the expiration of the shortened term.  If SEC fails to act within 6 months from filing of the amended Articles of Incorporation and shortened term expires before the 6-month period  the corporation will be dissolved at the end of the 6-month period. [Campos]

Dissolution in this case is automatic [Campos]. Contrary view: Since there is a defense available to the corporation, that is, if its failure to organize and commence its business is due to causes beyond the control of the corporation as may be determined by the SEC, therefore, the dissolution is not automatic.

Mentholatum v. Mangaliman (1946): Transacting business implies a continuity of acts or dealings in the accomplishment of the purpose for which the corporation was formed. Formal organization includes not only the adoption of the by-laws but also the establishment of the body which will administer the affairs of the corporation and exercise its powers  By-laws should be adopted within one month of receipt of official notice of the issuance of the certificate of incorporation, otherwise the certificate may be suspended or revoked [PD 902A, Sec. 6 (i)(5)]

A.2. INVOLUNTARY

Failure to operate for at least 5 consecutive years after commencement of business ground for suspension or revocation of its corporate franchise or certificate of incorporation.

A.2.A. BY EXPIRATION OF CORPORATE TERM Once the period expires, the corporation is automatically dissolved without any other proceeding and it cannot thereafter be considered a de facto corporation.

Note: Dissolution in this case is not automatic. [Campos]

A.2.B. FAILURE TO ORGANIZE AND COMMENCE BUSINESS WITHIN 2 YEARS FROM INCORPORATION

The corporation may show that the failure to commence its business or to continuously operate is due to causes beyond its control [Sec. 22]

Failure to formally organize and commence the transaction of its business or construction of its works within 2 years - its corporate powers shall cease and the corporation shall be deemed dissolved [Sec. 22]

A.2.C. LEGISLATIVE DISSOLUTION 188

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

The inherent power of Congress to make laws carries with it the power to amend or repeal them. Involuntary corporate dissolution may be effected through the amendment or repeal of the Corporation Code. [implied from Sec. 145, De Leon] The limitations on the power to dissolve corporations by legislative enactment are as follows: (1) Under the Constitution, the amendment, alteration, or repeal of the corporate franchise of a public utility shall be made only “when the common good so requires”; (2) Under Sec. 145 of the Code, it is provided that: “No right or remedy in favor of or against any corporation, its stockholders, members, directors, trustees, or officers, nor any liability incurred by any such corporation, stockholders, members, directors, trustees, or officers, shall be removed or impaired either by the subsequent dissolution of said corporation or by any subsequent amendment or repeal of this Code or of any part thereof”; (3) While Congress may provide for the dissolution of a corporation, it cannot impair the obligation of existing contracts between the corporation and third persons, or take away the vested rights of its creditors. [De Leon]

(3) Refusal to comply or defiance of any lawful order of the Commission restraining commission of acts which would amount to a grave violation of its franchise (4) Continuous inoperation for a period of at least five years (5) Failure to file by-laws within the required period (6) Failure to file required reports in appropriate forms as determined by the Commission within the prescribed period (7) Other grounds

A.2.D. DISSOLUTION BY THE SEC ON GROUNDS UNDER EXISTING LAWS

B.1. BY THE CORPORATION ITSELF

Other grounds: (a) Violation by the corporation of any provision of the Corporation Code [Sec. 144 BP 68] (b) In case of a deadlock in a close corporation, and the SEC deems it proper to order the dissolution of the corporation as the only practical solution to the dispute (Sec. 104 BP 68)

B. METHODS OF LIQUIDATION Liquidation is the process by which all the assets of the corporation are converted into liquid assets (cash) in order to facilitate the payment of obligations to creditors, and the remaining balance if any is to be distributed to the stockholders. It is a proceeding in rem.

Under Sec. 122 of the Corporation Code, a corporation whose corporate existence is terminated in any manner continues to be a body corporate for 3 years after its dissolution for purposes of prosecuting and defending suits by and against it and to enable it to settle and close its affairs, culminating in the disposition and distribution of its remaining assets. It may, during the 3-year term, appoint a trustee or a receiver who may act beyond that period.

A corporation may be dissolved by the SEC, upon a verified complaint and after proper notice and hearing, on the following grounds [Sec. 6, par. i, PD 902-A]: (1) Fraud in procuring its certificate of registration (2) Serious misrepresentation as to what the corporation can or is doing to the great prejudice of or damage to the general public

189

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

Pepsi-Cola Products Philippines, Inc. v. CA (2004): The termination of the life of a corporate entity does not by itself cause the extinction or diminution of the rights and liabilities of such entity. If the 3-year extended life has expired without a trustee or receiver having been expressly designated by the corporation, within that period, the BOD (or trustees) itself, may be permitted to so continue as "trustees" by legal implication to complete the corporate liquidation.

Reburiano v. CA (1999): The trustee of a dissolved corporation may commence a suit which can proceed to final judgment even beyond the 3-year period of liquidation. No reason can be conceived why a suit already commenced by the corporation itself during its existence, not by a mere trustee who, by fiction, merely continues the legal personality of the dissolved corporation, should not be accorded similar treatment — to proceed to final judgment and execution thereof.

Alhambra Cigar and Cigarette Mfg. v. SEC (1968): A corporation under liquidation may not amend its articles of incorporation to extend its lifespan. When a corporation is liquidating pursuant to the statutory period of 3 years to liquidate, it is only allowed to continue for the purpose of final closure of its business and no other purposes. In fact, within that period, the corporation is enjoined from “continuing the business for which it was established.”

Board of Liquidators v Kalaw (1967): Unless the trusteeship is limited in its duration by the deed of trust, there is no time limit within which the trustee must finish liquidation.

B.2. CONVEYANCE TO A WITHIN A 3-YEAR PERIOD

B.3. BY MANAGEMENT COMMITTEE OR REHABILITATION RECEIVER In SEC’s judgment dissolving the corporation and directing disposition of its assets as justice requires, it may appoint a receiver to collect such assets and pay the debts of the corporation [Sec. 119].

TRUSTEE

In this method, the 3-year limitation does not apply, provided that the designation of the trustees is made within the period.

Leyte Asphalt and Mineral Oil Co. Ltd., v. Block Johnston and Breenbrawn (1928): The mere appointment of a receiver, without anything more, does not result in the dissolution of the corporation nor bar it from the exercise of its corporate rights.

General rule There is no time limit within which the trustee must finish the liquidation, and he may sue and be sued as such even beyond the 3-year period.

D.4. LIQUIDATION AFTER THREE YEARS Phil. Veterans Bank v. Employees Union (2001): Q: What is the difference between Liquidation and Rehabilitation? A: Liquidation is the winding up of a corporation so that assets are distributed to those entitled to receive them. It is the process of reducing assets to cash, discharging liabilities and dividing surplus or loss. On the other hand, rehabilitation contemplates a continuance of corporate life and activities in an effort to restore and reinstate the corporation to its former position of successful

Exception The trusteeship is limited in its duration by the deed of trust. National Abaca v. Pore (1961): Trustees to whom the corporate assets have been conveyed pursuant to liquidation may sue and be sued as such in all matters connected with the liquidation.

190

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

operation and solvency. Both cannot be undertaken at the same time.

corporate business either as directors, officers or other key men in management [Campos]

Reburiano v CA (1999): If full liquidation can only be effected after the 3-year period and there is no trustee, the directors may be permitted to complete the liquidation by continuing as trustees by legal implication.

Statutory definition: [Sec. 96] A close corporation is one whose articles of incorporation provide that: (1) All the corporation's issued stock of all classes, exclusive of treasury shares, shall be held of record by not more than a specified number of persons, not exceeding 20; (2) All the issued stock of all classes shall be subject to one or more specified restrictions on transfer permitted by this Title; and (3) The corporation shall not list in any stock exchange or make any public offering of any of its stock of any class.

Aguirre vs. FQB+, Inc. (2013): A corporation’s BOD is not rendered functus officio by its dissolution. Since Sec. 122 allows a corporation to continue its existence for a limited purpose, necessarily there must be a board that will continue acting for and on behalf of the dissolved corporation for that purpose. Alabang Development Corporation v. Alabang Hills Village Association and Rafael Tinio (2014): The trustee of a corporation may continue to prosecute a case commenced by the corporation within 3 years from its dissolution until rendition of the final judgment, even if such judgment is rendered beyond the 3-year period allowed by Sec. 122 of the Corporation Code. However, an already defunct corporation is barred from initiating a suit after the lapse of the said 3-year period. If a petition is filed after the corporate existence, the effect is that petitioner lacks the capacity to sue as a corporation. To allow such petition to prosper, on the ground that it is for the sole purpose of liquidating the corporation’s assets, would be to circumvent the provisions of Sec. 122 of the Corporation Code.

General Rule: Any corporation may incorporate as a close corporation Exceptions: mining or oil companies, stock exchanges, banks, insurance companies, public utilities, educational institutions and corporations declared to be vested with public interest Notes: Under Sec. 96, the 3 provisions MUST appear in the Articles of Incorporation, otherwise, a corporation is not considered as a close corporation. [San Juan Structural and Steel Fabricators v CA (1998)] However, do note that in the earlier case of Dulay v CA (1993), the court did not look at Sec. 96 in concluding that the corporation involved was a close corporation.

XVI. Other Corporations A. CLOSE CORPORATIONS

Also note that, even after satisfying the 3 mandatory provisions, a corporation shall not be deemed a close corporation when at least 2/3 of its voting stock or voting rights is owned or controlled by another corporation which is

General concept: Most characteristic feature is the identity of stock ownership and active management, i.e., all or most of the stockholders are active in the 191

UP LAW BOC

CORPORATION CODE

not a close corporation within the meaning of this Code.

MERCANTILE LAW

San Juan Structural and Steel Fabricators v. CA (1998): A narrow distribution of ownership does not, by itself, make a close corporation. When a corporation’s Articles of Incorporation does not contain the provisions enumerated under Sec. 96 of the Code, such corporation is not a “close corporation”. It does not become one either, just because only a few individuals owned 99.866% of its subscribed capital stock.

The stockholders themselves can directly manage the corporation and perform the functions of directors without need of election: (1) When they manage, stockholders are liable as directors; (2) There is no need to call a meeting to elect directors; (3) The stockholders active in the management of the close corporation are personally liable for corporate torts unless the corporation has obtained reasonably adequate liability insurance [Sec. 100(5)]

General Rule: Free transferability of shares - Shares of stock so issued are personal property and may be transferred

Identity and number of stockholders (Sec. 96): (1) Stockholders of record not more than 20 (2) Stocks not publicly listed (3) Restricted transfer of ownership

Exception: In close corporations: Restriction on transfer provided in Articles of Incorporation

A.2. VALIDITY OF RESTRICTIONS ON TRANSFER OF SHARES Validity of Restrictions (Sec. 98) Restrictions must appear in the articles of incorporation and in the by-laws as well as in the certificate of stock; otherwise, the same shall not be binding on any purchaser thereof in good faith.

Limit: Restriction on the transfer must NOT be more onerous than granting the existing shareholders or corporation the option to purchase the shares (Right of First Refusal).

Restrictions shall not be more onerous than granting the existing stockholders or the corporation the option to purchase the shares of the transferring stockholder with such reasonable terms, conditions or period stated therein. After expiration of said period and upon failure of the existing stockholders or the corporation to purchase said shares, the transferring stockholder may sell his shares to any third person.

Rationale: Considering the special circumstances attending a close corporation (e.g. formed by persons who know each other well, thus they would want to choose the persons who will be allowed in their group), it is justifiable and even imperative for its stockholders to protect themselves from future conflicts by placing restrictions on the right of each one of them to transfer his shares to an outsider. The stocks cannot be listed in the stock exchange nor be publicly offered.

A.3. ISSUANCE OR TRANSFER OF STOCK IN BREACH OF QUALIFYING CONDITIONS

A.1. CHARACTERISTICS OF A CLOSE CORPORATION

If stock of a close corporation is issued or transferred to any person who is not entitled under any provision of the articles of incorporation to be a holder of record of its

Direct management by stockholders (Sec. 97): 192

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

stock, and if the certificate for such stock conspicuously shows the qualifications of the persons entitled to be holders of record thereof, such person is conclusively presumed to have notice of the fact of his ineligibility to be a stockholder.

consented to by all the stockholders of the close corporation, or if the close corporation has amended its articles of incorporation in accordance with this Title. The term "transfer", as used in this section, is not limited to a transfer for value.

If the articles of incorporation of a close corporation states the number of persons, not exceeding 20, who are entitled to be holders of record of its stock, and if the certificate for such stock conspicuously states such number, and if the issuance or transfer of stock to any person would cause the stock to be held by more than such number of persons, the person to whom such stock is issued or transferred is conclusively presumed to have notice of this fact.

The provisions of this section shall not impair any right which the transferee may have to rescind the transfer or to recover under any applicable warranty, express or implied [Sec. 99] Summary:  CONCLUSIVE PRESUMPTION OF NOTICE: Restriction conspicuously shown in stock certificate o that he is a person not eligible to be a holder of stock of the corporation o that transfer of stock to him would cause the stock of the corporation to be held by more than the number of persons permitted by its articles of incorporation to hold stock of the corporation o that the transfer of stock is in violation of a restriction on transfer of stock  EFFECTS OF CONCLUSIVE PRESUMPTION: o GR: Corporation may, at its option, refuse to register the transfer of stock in the name of the transferee o Exceptions: Corporation may not refuse if  Transfer is consented to by all the stockholders  Articles of Incorporation has been amended to remove the restrictions

If a stock certificate of any close corporation conspicuously shows a restriction on transfer of stock of the corporation, the transferee of the stock is conclusively presumed to have notice of the fact that he has acquired stock in violation of the restriction, if such acquisition violates the restriction. Whenever any person to whom stock of a close corporation has been issued or transferred has, or is conclusively presumed under this section to have, notice either (a) that he is a person not eligible to be a holder of stock of the corporation, or (b) that transfer of stock to him would cause the stock of the corporation to be held by more than the number of persons permitted by its articles of incorporation to hold stock of the corporation, or (c) that the transfer of stock is in violation of a restriction on transfer of stock, the corporation may, at its option, refuse to register the transfer of stock in the name of the transferee.

A.4. WHEN BOARD MEETING IS UNNECESSARY OR IMPROPERLY HELD

The provisions of subsection (4) shall not be applicable if the transfer of stock, though contrary to subsections (1), (2) of (3), has been

When Unnecessary –

193

UP LAW BOC

CORPORATION CODE

Any action by the directors of a close corporation without a meeting shall nevertheless be deemed valid if: (1) Before or after such action is taken, written consent thereto is signed by all the directors; or (2) All the stockholders have actual or implied knowledge of the action and make no prompt objection thereto in writing; or (3) The directors are accustomed to take informal action with the express or implied acquiescence of all the stockholders; or (4) All the directors have express or implied knowledge of the action in question and none of them makes prompt objection thereto in writing [Sec. 101]

MERCANTILE LAW

or in payment of corporate debts, UNLESS the articles of incorporation provide otherwise [Sec. 102].

A.6. AMENDMENT OF ARTICLES OF INCORPORATION Amendment to the Articles of Incorporation which seeks to: (1) delete or remove any provision required to be contained in the Articles of Incorporation of Close Corporations (under the Title on Close Corporations); or (2) to reduce a quorum or voting requirement stated in said Articles of Incorporation Requires the affirmative vote of at least 2/3 of the outstanding capital stock, whether with or without voting rights, or of such greater proportion of shares as may be specifically provided in the Articles of Incorporation at a meeting duly called.

Manuel R. Dulay Enterprises v. CA (1993): In a close corporation, a board resolution authorizing the sale or mortgage of the subject property is not necessary to bind the corporation for the action of its president. At any rate, corporate action taken at a board meeting without proper call or notice in a close corporation is deemed ratified by the absent director unless the latter promptly files his written objection with the secretary of the corporation after having knowledge of the meeting.

A.7. DEADLOCKS Requisites: (1) The directors or stockholders are so divided respecting the management of the corporation's business and affairs (2) The votes required for any corporate action cannot be obtained that the business and affairs of the corporation can no longer be conducted to the advantage of the stockholders generally Powers of the SEC in case of Deadlock in Close Corporations (1) Cancel or alter any provision in the articles of incorporation or by-laws (2) Cancel, alter or enjoin any resolution of the corporation (3) Direct or prohibit any act of the corporation (4) Require the purchase at their fair value of shares of any stockholder either by any stockholder or by the corporation regardless of the availability of unrestricted retained earnings. (5) Appoint a provisional director

When Improperly Held – When a director’s meeting is held without proper call or notice, an action taken therein within the corporate powers is deemed ratified by a director who failed to attend. UNLESS he promptly files his written objection with the secretary of the corporation after having knowledge thereof [Sec. 101]

A.5. PRE-EMPTIVE RIGHT The pre-emptive right of stockholders in close corporations shall extend to all stock to be issued, including reissuance of treasury shares, whether for money, property or personal services, 194

UP LAW BOC (6) Dissolve the corporation (7) Granting such other relief circumstances may warrant.

CORPORATION CODE

as

the

195

MERCANTILE LAW

UP LAW BOC

CORPORATION CODE CLOSE CORPORATIONS

MERCANTILE LAW REGULAR CORPORATIONS

1. Management / Board Authority There can be classification of directors into one or more classes, each of whom may be voted for and elected solely by a particular class of stock; and The articles of incorporation of a close corporation may provide that the business of the corporation shall be managed by the stockholders of the corporation rather than by a BOD. So long as this provision continues in effect:

There are no classification of BOD

Corporate Powers devolved upon BOD whose powers are executed by officers. Cannot provide that it be managed by stockholders

No meeting of stockholders need be called to elect directors.

BOD must be elected in a stockholders meeting

Unless the context clearly requires otherwise, the stockholders of the corporation shall be deemed to be directors for the purpose of applying the provisions of this Code.

Stockholders of a corporation are separate and distinct from directors

The stockholders of the corporation shall be subject to all liabilities of directors. The articles of incorporation may likewise provide that all officers or employees or that specified officers or employees shall be elected or appointed by the stockholders, instead of by the BOD.

Officers must be elected by the BOD

2. Meetings Unless the by-laws provide otherwise, any action by the directors of a close corporation without a meeting shall nevertheless be deemed valid if: (1) Before or after such action is taken, written consent thereto is signed by all the directors; or (2) All the stockholders have actual or implied knowledge of the action and make no prompt objection thereto in writing; or (3) The directors are accustomed to take informal action with the express or implied acquiescence of all the stockholders; or (4) All the directors have express or implied knowledge of the action in question and none of them makes prompt objection

The directors or trustees shall not act individually nor separately but as a body in a lawful meeting. They will act only after discussion and deliberation of matters before them. Contracts entered into without a formal board resolution does not bind the corporation except when ratified or when majority of the board has knowledge of the contract and the contract benefited the corporation. Absence of a prompt objection in writing does not ratify acts done by directors without a valid meeting. There must be express or implied ratification.

196

UP LAW BOC thereto in writing.

CORPORATION CODE MERCANTILE LAW Express ratification may consist of a Board Resolution to that effect If a director's meeting is held without proper call or notice, an action taken therein within the Implied ratification may consist of acceptance of corporate powers is deemed ratified by a benefits from said unauthorized act while having director who failed to attend, unless he promptly knowledge of said act files his written objection with the secretary of the corporation after having knowledge thereof. Failure to give notice would render a meeting voidable. Attendance to a meeting despite want of notice will be deemed implied waiver All proceedings had and any business transacted at any meeting of the stockholders or members, if within the powers or authority of the corporation, shall be valid even if the meeting be improperly held or called, provided all the stockholders or members of the corporation are present or duly represented at the meeting. (Sec. 51)

197

UP LAW BOC

CORPORATION CODE 3. Voting / Quorum

MERCANTILE LAW

No share may be deprived of voting rights, except Preferred or Redeemable shares, unless otherwise provided by the Code The Articles of Incorporation may provide for a classification of directors into one or more classes, each of which may be voted for and elected solely by a particular class of stock.

There shall always be a class/series of shares which have COMPLETE VOTING RIGHTS EACH SHARE SHALL BE EQUAL IN ALL RESPECTS TO EVERY OTHER SHARE, except as otherwise provided in the Articles of Incorporation

The Articles of Incorporation may provide for a greater quorum or voting requirements in meetings of stockholders or directors than those provided in this Code.

For BOD, the by-laws or Articles of Incorporation can provide for a greater majority in quorum For stockholders, the Articles of Incorporation can provide for a different percentage in quorum

4. Pre-emptive Right

The pre-emptive right of stockholders in close corporations shall extend to all stock to be issued, including reissuance of treasury shares, whether for money, property or personal services, or in payment of corporate debts, unless the articles of incorporation provide otherwise.

Limitations on the exercise of pre-emptive right: Such pre-emptive right shall not extend to shares to be issued in compliance with laws requiring stock offerings or minimum stock ownership by the public; Not extend to shares to be issued in good faith with the approval of the stockholders representing 2/3 of the outstanding capital stock, in exchange for property needed for corporate purposes or in payment of a previously contracted debt Shall not take effect if denied in the Articles of Incorporation or an amendment thereto.

5. Transferability Restrictions on the right to transfer shares must appear in the Articles of Incorporation and in the by-laws as well as in the certificate of stock otherwise the same shall not be binding on any purchaser thereof in good faith

Restrictions on the right to transfer not allowed

6. Appraisal Right Any stockholder of a close corporation may, for any reason, compel the said corporation to purchase his shares at their fair value, which shall not be less than their par or issued value, when the corporation has sufficient assets in its books to cover its debts and liabilities exclusive of capital stock

Stockholders may require the corporation to buyback their shares at fair value when the Corporation has Unrestricted Retained Earnings: (a) In case of any amendment to the articles of incorporation which has the effect of: (i) changing or restricting the rights of any stockholder or class of shares, or (ii) authorizing preferences in any respect 198

UP LAW BOC CORPORATION CODE MERCANTILE LAW Any stockholder of a close corporation may, by superior to those of outstanding shares written petition to the SEC, compel the of any class, or dissolution of such corporation whenever: (iii) extending or shortening the term of (a) Any of acts of the directors, officers or corporate existence those in control of the corporation is (b) In case of sale, lease, exchange, transfer, illegal, or fraudulent, or dishonest, or mortgage, pledge or other disposition of all or oppressive or unfairly prejudicial to the substantially all of the corporate property and corporation or any stockholder, or assets as provided in the Code; and (b) Corporate assets are being misapplied (c) In case of merger or consolidation or wasted. (d) Investment of corporate funds in another corporation or business (e) Diversion of funds of corporation from primary purpose to secondary purpose (Sec. 41) The corporation may buy-back shares of stockholders subject to the following limitations (Treasury shares): There must be unrestricted retained earnings Must be for a legitimate purpose

B.3. TREATMENT OF PROFITS

B. NON-STOCK CORPORATIONS Any profit which a non-stock corporation may obtain as an incident to its operations shall, whenever necessary or proper, be used for the furtherance of the purpose or purposes for which the corporation was organized. [Sec. 87,2nd sentence]

B.1. DEFINITION One where no part of its income is distributable as dividends to its members, trustees, or officers, subject to the provisions of this Code on dissolution. [Sec.87]

B.4. DISTRIBUTION OF ASSETS UPON DISSOLUTION

B.2. PURPOSES           

Charitable Religious Educational Professional Cultural Fraternal Literary Scientific Social Civic services Similar purposes, such trade, industry or agriculture and like chambers, or combinations thereof

Order of distribution of assets upon dissolution of non-stock corporation (1) All its creditors shall be paid. (2) Assets held subject to return on dissolution shall be delivered back to the givers. (3) Assets held for charitable, religious purposes, etc., without a condition for their return on dissolution, shall be conveyed to one or more organizations engaged in similar activities as dissolved corporation (4) All other assets shall be distributed to members, as provided in the Articles of Incorporation or by-laws [Sec. 94]

199

UP LAW BOC

CORPORATION CODE

Procedure for the Plan for Distribution BOT, by majority vote in a resolution, shall adopt a plan for distribution of the assets of the corporation

MERCANTILE LAW

the articles of incorporation of a corporation sole. But Sec. 109 allows the application to religious corporations of the general provisions governing non-stock corporations.  For non-stock corporations, the power to amend its Articles of Incorporation lies in its members. The code requires two-thirds of their votes for the approval of such an amendment. So how will this requirement apply to a corporation sole that has technically but one member (the head of the religious organization) who holds in his hands its broad corporate powers over the properties, rights, and interests of his religious organization?  Although a non-stock corporation has a personality that is distinct from those of its members who established it, its Articles of Incorporation cannot be amended solely through the action of its BOT. The amendment needs the concurrence of at least two-thirds of its membership. If such approval mechanism is made to operate in a corporation sole, its one member in whom all the powers of the corporation technically belongs, needs to get the concurrence of two-thirds of its membership. The one member is but a trustee of its membership.  There is no point to dissolving the corporation sole of one member to enable the corporation aggregate to emerge from it. The one member, with the concurrence of two-thirds of the membership of the organization for whom he acts as trustee, can self-will the amendment. He can, with membership concurrence, increase the technical number of the members of the corporation from “sole” or one to the greater number authorized by its amended articles.

Written notice for a meeting must be sent to all members entitled to vote, stating the time and place of such meeting and the purpose thereof At such meeting, the plan must be approved by 2/3 votes of the members having the right to vote, who are present or represented by proxy [Villanueva]

C. RELIGIOUS CORPORATIONS CORPORATION SOLE (SEC. 110) A special form of corporation, usually associated with clergy and consists of one person only and his successors, who are incorporated by law to give some legal capacities and advantages. A registered corporation sole can acquire land if its members constitute at least 60% Filipinos [SEC Opinion, 8 August 1994].

NATIONALITY Roman Catholic Apostolic Church v. Land Registration Commission (1957): A corporation sole does not have any nationality but for purposes of applying our nationalization laws, nationality is determined by the nationality of the members.

RELIGIOUS SOCIETIES Non-stock corporation formed by a religious society, group, diocese, synod, or district of any religious denomination, sect, or church after getting the approval of 2/3 of its members. Iglesia Evangelica Metodista En Las Filipinas (Corporation Sole) Inc., et al v. Bishop Nathanael Lazaro, et al (2010): The Corporation Code provides no specific mechanism for amending 200

UP LAW BOC

CORPORATION CODE

or performance of acts normally incidental to the purpose and object of the organization.  Under the Substance Test, a foreign corporation is doing business in the country if it is continuing the body or substance of the enterprise of business for which it was organized  Contract test

D. FOREIGN CORPORATIONS Foreign Corporation are those formed, organized, or existing under any laws other than those of the Philippines and whose laws allow Filipino citizens and corporations to do business in its own country or state [Sec. 123]

D.1. BASES OF AUTHORITY FOREIGN CORPORATIONS

MERCANTILE LAW

OVER

Pacific Vegetable Oil v. Singson (1955): A foreign corporation is doing business in the Philippines if the contracts entered into by the foreign corporation or by an agent acting under the control and direction of the foreign corporation are consummated in the Philippines.

CONSENT As a rule, a foreign corporation can have no legal existence or status beyond the bounds of the State or sovereignty by which it is created or incorporated and organized. It exists only in contemplation of law and by force of the law and where that law ceases to operate, the corporation can have no existence. This principle, however, does not prevent a corporation from acting in another State or country with the latter’s express or implied consent. This is the “consent doctrine” which is provided in Sections 125 and 126. But every power which a corporation exercises as such in another State depends for its validity upon the laws of the sovereignty in which it is exercised. A corporation can exercise none of the functions and privileges conferred by its charter in another State or country except by the comity and consent of such State or country. [De Leon]

STATUTORY DEFINITION OF “DOING BUSINESS”: FOREIGN INVESTMENT ACT OF 1991 [SEC. 3(D), RA 7042] (Asked in ‘98 and ‘02) DOING BUSINESS  Soliciting orders, service contracts, or opening offices;  Appointing representatives, distributors domiciled in the Philippines or who stay for a period or periods totaling 180 days or more;  Participating in the management, supervision, or control of any domestic business, firm, entity, or corporation in the Philippines;  Any act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to some extent the performance of acts or works or the exercise of some functions, normally incident to and in progressive prosecution of the purpose and object of its organization.

DOCTRINE OF “DOING BUSINESS” (RELATE TO DEFINITION UNDER THE FOREIGN INVESTMENTS ACT, R.A. NO. 7042) JURISPRUDENTIAL TESTS OF “DOING BUSINESS IN THE PHILIPPINES” (Asked in ‘98 and ‘02) Mentholatum v. Mangaliman (1941)  Twin Characterization Test  Under the Continuity Test, doing business implies a continuity of commercial dealings and arrangements,

Cargill v. Intra-Strata Assurance Corporation (2010): It relates to “business activities… not only casual, but so systematic and regular as to manifest continuity and permanence of activity 201

UP LAW BOC

CORPORATION CODE

to constitute doing business here…” To constitute doing business in the Philippines, the activity should involve profit-making. European Resources and Technologies Inc. v. Ingenieuburo Birkhanh + Nolte (2004): It is the performance by a foreign corporation of the acts for which it was created, regardless of volume of business, that determines whether a foreign corporation needs a license or not.



NOT DOING BUSINESS A. Statutory: Sec. 3(d) FIA and Sec. 1 FIA IRR  Mere investment as shareholder and exercise of rights as investor;  Having a nominee director or officer to represent its interest in the corporation;  Appointing a representative or distributor which transacts business in its own name and for its own account;  The publication of a general advertisement through any print or broadcast media  Maintaining a stock of goods in the PH solely for the purpose of having the same processed by another entity in the PH  Consignment by a foreign entity of equipment with a local company to be used in the processing of products for export  Collecting information in the Philippines  Performing services auxiliary to an existing isolated contract of sale which are not on a continuing basis, such as installing in the Philippines machinery it has manufactured or exported to the Philippines, servicing the same, training domestic workers to operate it, and similar incidental services



MERCANTILE LAW

concerning sales, marketing, finance and operations is nothing more than an exercise of sound business practice to increase sales and maximize profits. For as long as these requirements do not impinge on a distributor’s independence, then there is nothing wrong with placing reasonable expectations Antam Consolidated v CA (1986): Multiple transactions are still considered a single transaction where there are constantly failed attempts in complying with the contract by one of the contracting parties Le Chemise Lacoste v Fernandez (1984): A foreign firm which does business through middlemen acting on their own names shall not be deemed doing business in the Philippines.

D.2. NECESSITY OF A LICENSE TO DO BUSINESS REQUISITES LICENSE

FOR

ISSUANCE

OF

A

The foreign corporation should file a copy of its articles of incorporation and by-laws, and a verified application (See Sec. 125) accompanied by the following: (1) Name and address of its designated resident agent who will receive summons and notices for the corporation; a special power of attorney should also be submitted for such purpose (2) An agreement that if it ceases to transact business or if there is no more resident agent, summons shall then be served through the SEC (3) Oath of Reciprocity stating that the foreign corporation’s country allows Filipino citizens and corporations to do business in said country

B. Jurisprudential  Agilent v Integrated Silicon (2004): Agilent’s activities were confined to maintaining a stock of goods in the PH and consignment of equipmen.t  Steelcase v Design Int’l (2010): The imposition of minimum standards

Within 60 days from issuance of license, the corporation should deposit at least P100,000 (cash, property, bond) for the benefit of 202

UP LAW BOC

CORPORATION CODE

creditors subject to further deposit every six months [See Sec. 126]

D.4. SUABILITY CORPORATIONS

Rationale for the license requirement: Acquisition of jurisdiction The purpose of the law in requiring that foreign corporations doing business in the country be licensed to do so, is to subject the foreign corporations doing business in the Philippines to the jurisdiction of the courts, otherwise, a foreign corporation illegally doing business here because of its refusal or neglect to obtain the required license and authority to do business may successfully though unfairly plead such neglect or illegal act so as to avoid service and thereby impugn the jurisdiction of the local courts.

MERCANTILE LAW

OF

FOREIGN

A foreign corporation whether or not doing business in the Philippines may be sued for acts done against persons in the Philippines. Facilities Management Corporation v. De La Osa (1979): Indeed if a foreign corporation, not engaged in business in the Philippines, is not barred from seeking redress from courts in the Philippines, a fortiori, that same corporation cannot claim exemption from being sued in Philippine courts for acts done against a person or persons in the Philippines

D.5. INSTANCES WHEN UNLICENSED FOREIGN CORPORATIONS MAY BE ALLOWED TO SUE

The same danger does not exist among foreign corporations that are indubitably not doing business in the Philippines. Indeed, if a foreign corporation does not do business here, there would be no reason for it to be subject to the State’s regulation [Avon Insurance PLC v. CA (1997)].

 

RESIDENT AGENT

When the corporation is considered “not doing business” in the PH When the Philippine citizen or entity is estopped from challenging the foreign corporation’s personality to sue (Merrill Lynch Futures v. Court of Appeals (1992)

Summary of Rules on Capacity to Sue [Agilent Technologies Singapore v. Integrated Silicon Technologies (2004)]:

Resident Agent is an individual, who must be of good moral character and of sound financial standing, residing in the Philippines, or a domestic corporation lawfully transacting business in the Philippines, designated in a written power of attorney by a foreign corporation authorized to do business in the Philippines, on whom any summons and other legal processes may be served in all actions or other legal proceedings against the foreign corporation [Sec. 127-128]

Status Doing Business in the PH, WITH a license Doing Business in the PH, WITHOUT a license

Consequence Can sue and be sued

GR: Cannot sue, but may be sued in the PH Exception: Capacity to sue may not be questioned if the other party is estopped NOT doing business May sue; in the PH, on isolated may be sued transactions

D.3. PERSONALITY TO SUE A foreign corporation transacting business in the Philippines is required to secure a license to have the personality to sue before, or intervene in, any court or administrative proceeding. [Campos; Sec. 133]

D.6. GROUNDS FOR REVOCATION OF LICENSE 203

UP LAW BOC

CORPORATION CODE

(2) it has failed to comply with the provisions of law or regulations obligatory upon it; or (3) its condition or method of business is such as to render its proceedings hazardous to the public or to its policyholders; or (4) its paid-up capital stock, in the case of a foreign company, is impaired or deficient, or that the margin of solvency required of such company is deficient [Sec. 247, Insurance Code]

D.6.A. UNDER THE CORPORATION CODE  















MERCANTILE LAW

Failure to file its annual report or pay any fees as required by this Code; Failure to appoint and maintain a resident agent in the Philippines as required by this Title; Failure, after change of its resident agent or of his address, to submit to the Securities and Exchange Commission a statement of such change as required by this Title; Failure to submit to the Securities and Exchange Commission an authenticated copy of any amendment to its articles of incorporation or by laws or of any articles of merger or consolidation within the time prescribed by this Title; A misrepresentation of any material matter in any application, report, affidavit or other document submitted by such corporation pursuant to this Title; Failure to pay any and all taxes, imposts, assessments or penalties, if any, lawfully due to the Philippine Government or any of its agencies or political subdivisions; Transacting business in the Philippines outside of the purpose or purposes for which such corporation is authorized under its license; Transacting business in the Philippines as agent of or acting for and in behalf of any foreign corporation or entity not duly licensed to do business in the Philippines; or Any other ground as would render it unfit to transact business in the Philippines (Sec. 134)

GENERAL BANKING ACT The Monetary Board may revoke the license to transact business in the Philippines of any foreign bank, if it finds that: (1) the foreign bank is insolvent; or (2) in imminent danger thereof; or (3) its continuance in business will involve probable loss to those transacting business with it.

XVII. Mergers Consolidations

and

A. DEFINITION AND CONCEPT Merger – a corporation absorbs the other and remains in existence while the others are dissolved. [Sec.76] One of the constituent corporations remains as an existing juridical person, whereas the other corporation shall cease to exist. Merger is the disappearance of one of the corporations [generally by amending the articles of incorporation and shortening its term of existence (Sec.40)] with the other corporation acquiring all the assets, rights of action, and assuming all the liabilities of the disappearing corporation.

D.6.B. UNDER SPECIAL LAWS INSURANCE CODE The Insurance Commissioner is authorized to suspend or revoke all certificates of authority granted to an insurance company, whether domestic or foreign, when: (1) it is in unsound condition; or

Consolidation – a new corporation is created, and consolidating corporations are extinguished [Sec.76] 204

UP LAW BOC

CORPORATION CODE

MERCANTILE LAW

(3) As to each corporation, number of shares or members voting for and against such plan respectively.

If there is consolidation, there will be disappearance of all constituent corporations with the emergence of a new corporate entity which shall obtain all the assets of the disappearing corporations, and likewise shall assume all their liabilities.

B. CONSTITUENT VS. CONSOLIDATED CORPORATION

The Articles of Merger or Consolidation: (1) take the place of the Articles of Incorporation of the consolidated corporation; or (2) amend the Articles of Incorporation of the surviving corporation.

Constituent Corporations – the parties to a merger or consolidation

E. PROCEDURE E.1. APPROVAL OF PLAN OF MERGER OR CONSOLIDATION BY BOD AND STOCKHOLDERS OF CONSTITUENT CORPORATIONS

Consolidated Corporation - The new single corporation created through consolidation. Surviving Corporation – one of the constituent corporations which remain in existence after the merger

Approval by majority vote of each of the board of directors or trustees of the constituent corporations of the plan of merger or consolidation.

C. PLAN OF MERGER OR CONSOLIDATION [SEC. 76]

Approval by the stockholders or members of each of such corporations. The affirmative vote of stockholders representing at least two-thirds (2/3) of the outstanding capital stock of each corporation in the case of stock corporations or at least two-thirds (2/3) of the members in the case of non-stock corporations shall be necessary for the approval of such plan.

Each of the constituent corporations must draw up a Plan of Merger or Consolidation which shall set forth: (1) Names of the corporation involved; (2) Terms and mode of carrying it; (3) Statement of changes, if any, in the present articles of the surviving corporation to be formed in the case of merger; and with respect to the consolidated corporation in case of consolidation

D. ARTICLES OF CONSOLIDATION

MERGER

Holders of non-voting shares are entitled to vote on the plan. (Sec. 6, par. 6(6))

OR

Notice of such meetings shall be given to all stockholders or members of the respective corporations, at least 2 weeks prior to the date of the meeting, either personally or by registered mail. Said notice shall state the purpose of the meeting and shall include a copy or a summary of the plan of merger or consolidation.

Each of the constituent corporation shall execute Articles of Merger or Consolidation signed by the president/vice-president, and certified by the secretary/assistant secretary setting forth: (1) Plan of merger or consolidation; (2) For stock corporation, the number of shares outstanding; for non-stock, the number of members;

Any dissenting stockholder in stock corporations may exercise his appraisal right in 205

UP LAW BOC

CORPORATION CODE

accordance with the Code. Provided, that if after the approval by the stockholders of such plan, the board of directors decides to abandon the plan, the appraisal right shall be extinguished.

PNB v. Andrada Electric and Engr. Co., (2002): Merger or consolidation does become effective by mere agreement of constituent corporations. The approval of SEC is required.

Amendment to the plan of merger or consolidation may be made by approval of the majority vote of the respective boards of directors or trustees of all the constituent corporations and ratified by the affirmative vote of stockholders representing at least two-thirds (2/3) of the outstanding capital stock or of twothirds (2/3) of the members of each of the constituent corporations. Such plan, together with any amendment, shall be considered as the agreement of merger or consolidation.

E.2. EXECUTION OF ARTICLES MERGER OR CONSOLIDATION

MERCANTILE LAW

Inc. not the the

Notwithstanding Sec. 79, parties may stipulate a specific effective date of merger (or consolidation) where no 3rd party will be prejudiced [SEC Opinion No. 09-13, July 1, 2009]

G. LIMITATIONS Consent of appropriate government agency: In the case of merger or consolidation of banks or banking institutions, building and loan associations, trust companies, insurance companies, public utilities, educational institutions and other special corporations governed by special laws, the favorable recommendation of the appropriate government agency shall first be obtained [Sec. 79]

OF

Articles of Merger or Articles of Consolidation shall be executed by each of the constituent corporations.

E.3. SUBMISSION TO SEC OF ARTICLES

H. EFFECTS (SEC. 80)

Submission of Four (4) copies of the Articles of Merger or Articles of Consolidation to the SEC for approval.  Mergers and consolidations of corporations governed by special laws requires a recommendation from the appropriate government agency (Sec. 79 (1))

AS TO THE CONSTITUENT CORPORATIONS: Corporate existence The constituent corporations shall become a single corporation. The separate existence of the constituents shall cease, except that of the surviving or the consolidated corporation.

E.4. ACTION BY SEC Conduct hearing or issue certificate If necessary, the SEC shall set a hearing, notifying all corporations concerned at least 2 weeks before. Issuance of consolidation.

certificate

of

merger

The absorbed or constituent corporations are ipso facto dissolved by operation of law [SEC Opinion, July 16, 1981]

or

F. EFFECTIVITY

Assets and liabilities There is no liquidation of the assets of the dissolved corporations [Campos].

Upon issuance of the certificate of merger or consolidation, such merger or consolidation shall become effective [Sec. 79].

The surviving or the consolidated corporation shall possess all the rights, privileges, 206

UP LAW BOC

CORPORATION CODE

immunities, powers, and franchises of each constituent corporation and the properties shall be deemed transferred to and vested in the surviving or consolidated corporation without further act or deed

MERCANTILE LAW

AS TO CREDITORS Any claim, action or proceeding pending by or against any of the constituent corporations may be prosecuted by or against the surviving or consolidated corporation; and

The surviving or the consolidated corporation shall be subject to all the duties and liabilities of the dissolving corporation(s).

The rights of the creditors or lien upon the property of any of each constituent corporation shall not be impaired by such merger or consolidation.

207

UP LAW BOC


MERCANTILE LAW

MERCANTILE LAW


208

UP LAW BOC

SECURITIES REGULATION CODE

I. State Policy Section 2. Declaration of State Policy The State shall (1) Establish a socially conscious, free market that regulates itself; (2) Encourage the widest participation of ownership in enterprises; (3) Enhance the democratization of wealth; (4) Promote the development of the capital market; (5) Protect investors; (6) Ensure full and fair disclosure about securities; (7) Minimize if not totally eliminate insider trading and other fraudulent or manipulative devices and practices which create distortions in the free market

(b)

(c)

II. Securities Required to be Registered

(d)

General Rule: Securities shall not be sold or offered for sale or distribution to the public within the Philippines, without a registration statement duly filed with and approved by the Commission (Sec. 8.1) - The Securities Regulation Code (SRC) regulates public offering within the Philippines. Exceptions: (1) Exempt securities (Sec. 9) (a) Any security issued or guaranteed by the Government of the Philippines/ its political subdivision or agency/its instrumentality/ or any person controlled or supervised thereby;  Rationale for the exception: The public does not need protection

(e)

(f)

209

MERCANTILE LAW

from the government itself. The government will always be solvent to pay its obligations because of its ability to raise revenues through taxation. Any security issued or guaranteed by the government of any country with which the Philippines maintains diplomatic relations, or by any state, province or political subdivision thereof on the basis of reciprocity: Provided, That the Commission may require compliance with the form and content for disclosures the Commission may prescribe;  Rationale: This is rooted in comity among nations. Certificates issued by a receiver or by a trustee in bankruptcy duly approved by the proper adjudicatory body;  Rationale: This is not a public offering. Besides, protection is already afforded by that “proper adjudicatory body” and additional SEC protection is not necessary. Any security or its derivatives the sale or transfer of which, by law, is under the supervision and regulation of the Office of the Insurance Commission, Housing and Land Use Rule Regulatory Board, or the Bureau of Internal Revenue.  Rationale: The issuers are governmental agencies covered by exception (a) above. SEC protection would be a duplication. Any security issued by a bank except its own shares of stock (Sec. 9.1)  Rationale: Banks are under the supervision of the Bangko Sentral. SEC protection is a duplication. Any class of security with respect to which the SEC finds that registration is not necessary in the public interest and for the protection of investors (Sec. 9.2)

UP LAW BOC 


MERCANTILE LAW

as a stock dividend or other distribution out of surplus. - Rationale: The offerees are not the public but shareholders already familiar with their company. (e) The sale of capital stock of a corporation to its own stockholders exclusively, where no commission or other remuneration is paid or given directly or indirectly in connection with the sale of such capital stock. - Rationale: Same as (d) above. (f) The issuance of bonds or notes secured by mortgage upon real estate or tangible personal property, when the entire mortgage together with all the bonds or notes secured thereby are sold to a single purchaser at a single sale. - Rationale: This is not a public sale. (g) The issue and delivery of any security in exchange for any other security of the same issuer pursuant to a right of conversion entitling the holder of the security surrendered in exchange to make such conversion: Provided, That the security so surrendered has been registered under this Code or was, when sold, exempt from the provision of this Code, and that the security issued and delivered in exchange, if sold at the conversion price, would at the time of such conversion fall within the class of securities entitled to registration under this Code. Upon such conversion the par value of the security surrendered in such exchange shall be deemed the price at which the securities issued and delivered in such exchange are sold. - Rationale: The SEC has already registered the convertible security and presumably also passed upon the security to be issued upon conversion.

NOTE: The exemption of securities by the SEC must be made through the issuance of a rule or regulation (Sec. 9.2)

(2) Exempt transactions (a) At any judicial sale, or sale by an executor, administrator, guardian or receiver or trustee in insolvency or bankruptcy. - Rationale for exclusion: A court will presumably not order the sale if the public will be prejudiced thereby. (b) By or for the account of a pledge holder, or mortgagee or any of a pledge lien holder selling or offering for sale or delivery in the ordinary course of business and not for the purpose of avoiding the provision of this Code, to liquidate a bona fide debt, a security pledged in good faith as security for such debt. - Rationale: This is not a voluntary sale contemplated by the SRC. (c) An isolated transaction in which any security is sold, offered for sale, subscription or delivery by the owner thereof, or by his representative for the owner’s account, such sale or offer for sale, subscription or delivery not being made in the course of repeated and successive transaction of a like character by such owner, or on his account by such representative and such owner or representative not being the underwriter of such security. - Rationale: Isolated and not meant to be an ongoing public offering. (d) The distribution by a corporation actively engaged in the business authorized by its articles of incorporation, of securities to its stockholders or other security holders

210

UP LAW BOC


(h) Broker’s transaction, executed upon customer’s orders, on any registered Exchange or other trading market. - Rationale: If broker’s transactions are registered each time, the transactions on the exchange will be unduly hampered. Besides, the brokers are subject to a “code of conduct” protective of the interest of the investors. (i) Subscriptions for shares of the capitals stocks of a corporation prior to the incorporation thereof or in pursuance of an increase in its authorized capital stocks under the Corporation Code, when no expense is incurred, or no commission, compensation or remuneration is paid or given in connection with the sale or disposition of such securities, and only when the purpose for soliciting, giving or taking of such subscription is to comply with the requirements of such law as to the percentage of the capital stock of a corporation which should be subscribed before it can be registered and duly incorporated, or its authorized capital increased. - Rationale: This is not a public offering. Besides, the SEC is involved in the subscription process, as a regulator. (j) The exchange of securities by the issuer with the existing security holders exclusively, where no commission or other remuneration is paid or given directly or indirectly for soliciting such exchange. - Rationale: This is not a public offering. (k) The sale of securities by an issuer to fewer than twenty (20) persons in the Philippines during any twelve-month period.

MERCANTILE LAW

Rationale: This is not a public offering but a private placement. (l) The sale of securities to any number of the following qualified buyers: (i) Bank; (ii) Registered investment house; (iii) Insurance company; (iv) Pension fund or retirement plan maintained by the Government of the Philippines or any political subdivision thereof or managed by a bank or other persons authorized by the Bangko Sentral to engage in trust functions; (v) Investment company or; (vi) Such other person as the Commission may by rule determine as qualified buyers, on the basis of such factors as financial sophistication, net worth, knowledge, and experience in financial and business matters, or amount of assets under management. (Sec. 10.1) - Rationale: These are sophisticated investors that could fend for themselves. (m) Any transaction with respect to which the SEC finds that registration is not necessary in the public interest and protection of investors such as by the reason of the small amount involved or the limited character of the public offering (Sec. 10.2) -

NOTE: Application for exemption under Section 10 must be accompanied by: (1) A notice identifying the exemption relied upon; (2) Payment of fee equivalent to 1/10 of 1% of the maximum value aggregate price or issued value of the securities.

211

UP LAW BOC


MERCANTILE LAW

SEC v. PROSPERITY.COM, INC. (2012): [This case involves the application of the Howey test in order to determine if a particular transaction is an investment contract.] The sole issue is whether or not Prosperity.com Inc.’s (PCI) scheme constitutes an investment contract that requires registration under the SRC.

POWER HOMES UNLIMITED CORPORATION v. SEC and MANERO (2008): An investment contract is defined in the Amended IRR of R.A. No. 8799 (SRC) as a “contract, transaction or scheme (collectively ‘contract’) whereby a person invests his money in a common enterprise and is led to expect profits primarily from the efforts of others.”

The SRC treats investment contracts as “securities” that have to be registered with the SEC before they can be distributed and sold. An investment contract is a contract, transaction, or scheme where a person invests his money in a common enterprise and is led to expect profits primarily from the efforts of others.

Although the proponents must establish all four elements, the US Supreme Court stressed that the Howey Test “embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.”

Apart from the definition which the IRR provides, Philippine jurisprudence has so far not done more to add to the same. Of course, the United States Supreme Court, grappling with the problem, has on several occasions discussed the nature of investment contracts. That court’s rulings, while not binding in the Philippines, enjoy some degree of persuasiveness insofar as they are logical and consistent with the country’s best interests.

After Howey came the 1973 US case of SEC v. Glenn W. Turner Enterprises, Inc. et al. In this case, the 9th Circuit of the US Court of Appeals ruled that the element that profits must come “solely” from the efforts of others should not be given a strict interpretation. It held that a literal reading of the requirement “solely” would lead to unrealistic results. It reasoned out that its flexible reading is in accord with the statutory policy of affording broad protection to the public. Our RA 8799 (SRC) appears to follow this flexible concept for it defines an investment contract as a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits not solely but primarily from the efforts of others.

The US SC held in Securities and Exchange Commission v. W.J. Howey Co. (1946) that, for an investment contract to exist, the following elements, referred to as the HOWEY TEST must concur: (1) a contract, transaction, or scheme; (2) an investment of money; (3) investment is made in a common enterprise; (4) expectation of profits; and (5) profits arising primarily from the efforts of others. Thus, to sustain the SEC position in this case, PCI’s scheme or contract with its buyers must have all these elements.

Thus, to be a security subject to regulation by the SEC, an investment contract in our jurisdiction must be proved to be: (1) an investment of money, (2) in a common enterprise, (3) with expectation of profits, (4) primarily from efforts of others.

212

UP LAW BOC


III. Procedure for Registration of Securities

MERCANTILE LAW

accompanied by a duly verified resolution of the board of directors of the issuer corporation (Sec. 12.4)  Shall be accompanied by: (a) Written consent of the expert named as having certified any part of the registration statement or any document used in connection therewith; and (b) Where the registration statement includes shares to be sold by selling shareholders - a written certification by such selling shareholders as to the accuracy of any part of the registration statement contributed to by such selling shareholders (Sec. 12.4).

(1) Filing of a sworn registration statement with the SEC (Sec. 12.1)  Shall include any prospectus required or permitted to be delivered under Subsections 8.2, 8.3, and 8.4 (Sec. 12.1) Chapter III, Section 8. Requirement of Registration of Securities x x x 8.2 The Commission may conditionally approve the registration statement under such terms as it may deem necessary. 8.3 The Commission may specify the terms and conditions under which any written communication, including any summary prospectus, shall be deemed not to constitute an offer for sale under this Section.

(2) Payment to the SEC of a fee of not more than one-tenth (1/10) of one per centum (1%) of the maximum aggregate price at which such securities are proposed to be offered (Sec. 12.5a)

8.4. A record of the registration of securities shall be kept in Register of Securities in which shall be recorded orders entered by the Commission with respect to such securities. Such register and all documents or information with respect to the securities registered therein shall be open to public inspection at reasonable hours on business days.

(3) Publication of the notice of the filing of registration statement. (Sec. 12.5b)  The publication must be in two (2) newspapers of general circulation in the Philippines, once a week for two (2) consecutive weeks, or in such other manner as the Commission by the rule shall prescribe (Sec. 12.5b)

 Shall include the effect of the securities issue on ownership, on the mix of ownership, especially foreign and local ownership (Sec. 12.3)  Shall be signed by the issuer’s executive officer, its principal operating officer, its principal financial officer, its comptroller, its principal accounting officer, its corporate secretary, or persons performing similar functions

(4) Declaration by the SEC whether the registration statement is effective or rejected.  Declaration is made within 45 days from filing of the registration statement or on such later date to which the issuer has consented unless applicant has been allowed

213

UP LAW BOC


to amend the registration statement under Sec. 14 (Sec. 12.6).

MERCANTILE LAW

Commission or other competent or administrative body for violations of securities, commodities, and other related laws (Sec. 13.1) (d) If any issuer shall refuse to permit an examination to be made by the Commission (Sec. 13.3)

NOTE: Grounds for: (1) rejection/revocation of registration statement and (2) refusal of registration/revocation of securities thereunder: (a) The issuer: (i) Has been judicially declared insolvent; (ii) Has violated any of the provision of this Code, the rules promulgated pursuant thereto, or any order of the Commission of which the issuer has notice in connection with the offering for which a registration statement has been filed (iii) Has been or is engaged or is about to engage in fraudulent transactions; (iv) Has made any false or misleading representation of material facts in any prospectus concerning the issuer or its securities; (v) Has failed to comply with any requirements that the Commission may impose as a condition for registration of the security for which the registration statement has been filed; or (b) The registration statement is on its face incomplete or inaccurate in any material respect or includes any untrue statements of a material fact required to be stated therein or necessary to make the statement therein not misleading; or (c) The issuer, any officer, director or controlling person performing similar functions, or any under writer has been convicted, by a competent judicial or administrative body, upon plea of guilty, or otherwise, of an offense involving moral turpitude and /or fraud or is enjoined or restrained by the

NOTE: A registration statement may be withdrawn by the issuer only with the consent of the Commission (Sec. 13.6). (5) Statement under oath by the issuer in all prospectus that: (a) registration requirements have been met and (b) all information are true and correct as represented by the issuer or the one making the statement.  Statement under oath must be made upon effectivity of the registration statement. (Sec. 12.7)

IV. Prohibitions on Fraud, Manipulation and Insider Trading A. MANIPULATION OF SECURITY PRICES It shall be unlawful for any person acting for himself or through a dealer or broker, directly or indirectly: (a) To create a false or misleading appearance of active trading in any listed security traded in an Exchange of any other trading market ("Exchange"): (i) By effecting any transaction in such security which involves no change in the beneficial ownership thereof;

214

UP LAW BOC


(ii) By entering an order or orders for the purchase or sale of such security with the knowledge that a simultaneous order or orders of substantially the same size, time and price, for the sale or purchase of any such security, has or will be entered by or for the same or different parties; or (iii) By performing similar act where there is no change in beneficial ownership.

MERCANTILE LAW

(e) To effect, either alone or others, any series of transactions for the purchase and/or sale of any security traded in an Exchange for the purpose of pegging, fixing or stabilizing the price of such security; unless otherwise allowed by this Code or by rules of the Commission (Sec. 24.1)

B. 

(b) To affect, alone or with others, securities or transactions in securities that: (i) Raises their price to induce the purchase of a security, whether of the same or a different class of the same issuer or of controlling, controlled, or commonly controlled company by others; or (ii) Creates active trading to induce such a purchase or sale through manipulative devices such as marking the close, painting the tape, squeezing the float, hype and dump, boiler room operations and such other similar devices.

SHORT SALES The SEC is regulating transactions wherein the seller does not yet own or have the securities he is selling. He is required to show that he has made arrangements to effect delivery of such securities on settlement date; otherwise, the sale will not be allowed. (a) No person shall use or employ, in connection with the purchase or sale of any security any manipulative or deceptive device or contrivance. (b) No short sale shall be effected nor any stop-loss order be executed in connection with the purchase or sale of any security except if allowed by the SEC (Sec. 24.2)

(c) To circulate or disseminate information that the price of any security listed in an Exchange will or is likely to rise or fall because of manipulative market operations of any one or more persons conducted for the purpose of raising or depressing the price of the security for the purpose of inducing the purchase or sale of such security.

NOTE: The SEC may allow certain acts or transactions under Sec. 24 (on Manipulation of Security Prices and Short Sales), for public interest and protection of investors (Sec. 24.3)

C.

FRAUDULENT TRANSACTIONS

It shall be unlawful for any person, directly or indirectly, in connection with the purchase or sale of any securities to:

(d) To make false or misleading statement with respect to any material fact, which he knew or had reasonable ground to believe was so false or misleading, for the purpose of inducing the purchase or sale of any security listed or traded in an Exchange.

(a) Employ any device, scheme, or artifice to defraud; (Sec. 26.1) (b) Obtain money or property by means of any untrue statement of a material fact 215

UP LAW BOC


of any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading (Sec. 26.2)

‘Material non-public information’ means: (a) It has not been generally disclosed to the public and would likely affect the market price of the security after being disseminated to the public and the lapse of a reasonable time for the market to absorb the information; or (b) Would be considered by a reasonable person important under the circumstances in determining his course of action whether to buy, sell or hold a security (Sec. 27.2)

(c) Engage in any act, transaction, practice or course of business which operates or would operate as a fraud or deceit upon any person (Sec. 26.3)

D.

MERCANTILE LAW

INSIDER TRADING 



 It shall be unlawful for an insider:

What is sought to be addressed here is the asymmetry in information about a “public company” (such as a company listed on the Philippine Stock Exchange) between insiders and outsiders. Insiders could have material information not yet known to the public about the company, and they might use this information to benefit themselves at the expense of the outsiders or the public. Therefore, they must not trade in the shares of the company pending the disclosure of such information to the public.

(a) To sell or buy a security of the issuer, while in possession of material information with respect to the issuer or the security that is not generally available to the public, unless: (1) The insider proves that the information was not gained from such relationship; or (2) If the other party selling to or buying from the insider (or his agent) is identified, the insider proves: (i) That he disclosed the information to the other party, or (ii) That he had reason to believe that the other party otherwise is also in possession of the information (Sec. 27.1)

An INSIDER means: (a) The issuer; (b) A director or officer (or any person performing similar functions) of, or a person controlling the issuer; gives or gave him access to material information about the issuer or the security that is not generally available to the public; (c) A government employee, director, or officer of an exchange, clearing agency and/or selfregulatory organization who has access to material information about an issuer or a security that is not generally available to the public; or (d) A person who learns such information by a communication from any foregoing insiders (Sec. 3.8)

NOTE: Presumption that purchase or sale is effected while in possession of material non-public information arises: (1) If the purchase or sale is transacted after such information came into existence but prior to dissemination of such information to the public; and (2) The lapse of a reasonable time for market to absorb such information.

216

UP LAW BOC


Presumption may be rebutted by showing of purchaser’s or seller’s awareness of the material non-public information at the time of purchase or sale (Sec. 27.1)

material nonpublic information relating to such tender offer, to buy or sell the securities of the issuer that are sought or to be sought by such tender offer if: (i) Such person knows or has reason to believe that the information is nonpublic and has been acquired directly or indirectly from the tender offeror, those acting on its behalf, the issuer of the securities sought or to be sought by such tender offer, or any insider of such issuer

(b) To communicate material nonpublic information about the issuer or the security to any person who, by virtue of the communication, becomes an insider where the insider communicating the information knows or has reason to believe that such person will likely buy or sell a security of the issuer while in possession of such information (Sec. 27.3)

V. Protection Investors A.  

MERCANTILE LAW

of

(b) Any tender offeror, those acting on its behalf, the issuer of the securities sought or to be sought by such tender offer, and any insider of such issuer to communicate material nonpublic information relating to the tender offer to any other person where such communication is likely to result in a violation of (a) (Sec. 27.4).

TENDER OFFER RULE This protects the minority shareholders. If a person or a group of persons (acting in concert) intends and is in discussion with certain shareholders of a public company (normally, the controlling shareholders) to acquire a substantial stake in such company (now, the threshold is 35% of the outstanding class of shares in a public company), the acquirer must make an offer to all the shareholders of the company to tender their shares at the price being offered to the controlling shareholders.  Before, the minority shareholders are left out; so, the acquirer only dealt with the controlling shareholders and disregarded the minority.

CEMCO HOLDINGS, INC. v. NATIONAL LIFE INSURANCE COMPANY OF THE PHILIPPINES, INC. (2007): Tender offer is a publicly announced intention by a person acting alone or in concert with other persons to acquire equity securities of a public company. Stated differently, a tender offer is an offer by the acquiring person to stockholders of a public company for them to tender their shares therein on the terms specified in the offer. Tender offer is in place to protect minority shareholders against any scheme that dilutes the share value of their investments. It gives the minority shareholders the chance to exit the company under reasonable terms, giving them the opportunity to sell their shares at the same price as those of the majority shareholders.

When a tender offer has commenced or is about to commence, It shall be unlawful for: (a) Any person (except the tender offeror) who is in possession of 217

UP LAW BOC


(b) In writing (Sec. 20.2) (c) Signed by the stockholder or his duly authorized representatives (Sec. 20.2) (d) Filed before the scheduled meeting with the corporate secretary (Sec. 20.2) (e) Valid only for the meeting for which it is intended unless otherwise provided in the proxy (Sec. 20.3)

The coverage of the mandatory tender offer rule covers not only direct acquisition but also indirect acquisition or “any type of acquisition.” [Case at bar: The indirect acquisition by CEMCO Holdings of 36% of UCC shares through the acquisition of the non-listed UCHC shares is covered by the mandatory tender offer rule.]

NOTE: No proxy shall be valid and effective for a period longer than five (5) years at one time (Sec. 20.3)

The legislative intent of Section 19 of the Securities Regulation Code is to regulate activities relating to acquisition of control of the listed company and for the purpose of protecting the minority stockholders of a listed corporation. Whatever may be the method by which control of a public company is obtained, either through the direct purchase of its stocks or through an INDIRECT means, mandatory tender offer applies.

A broker or dealer shall: (a) Not give any proxy, consent or any authorization, in respect of any security carried for the account of the customer, to a person other than the customer, without written authorization of such customer (Sec. 20.4) (b) If he holds or acquires the proxy for at least ten percent (10%) or such percentage as the Commission may prescribe of the outstanding share of such issuer, submit a report identifying the beneficial owner within ten days after such acquisition, for its own account or customer, to the issuer of security, to the exchange where the security is traded and to the Commission

What is decisive is the determination of the power of control. The legislative intent behind the tender offer rule makes clear that the type of activity intended to be regulated is the acquisition of control of the listed company through the purchase of shares. Control may [be] effected through a direct and indirect acquisition of stock, and when this takes place, irrespective of the means, a tender offer must occur. The bottom line of the law is to give the shareholder of the listed company the opportunity to decide whether or not to sell in connection with a transfer of control.

B. RULES SOLICITATION

ON

MERCANTILE LAW

(Sec. 20.5)

C.

DISCLOSURE RULE

Issuers, equity holders, and insiders are required to disclose certain information to the SEC.

PROXY

C. 1. DISCLOSURE BY THE ISSUER (1) To the SEC  Every issuer shall file with the Commission: (a) Annual Report within one hundred thirty-five (135) days, after the end of the issuer’s fiscal year, or such other time as the Commission may prescribe

Proxies shall be: (a) Issued in accordance with SEC rules and regulations; Proxy solicitations shall also be made in accordance with the said rules and regulations (Sec. 20.1) 218

UP LAW BOC


(b) Such other periodical reports for interim fiscal periods and current reports on significant developments of the issuer as the Commission may prescribe as necessary to keep current information on the operation of the business and financial condition of the issuer (Sec. 17.1)

MERCANTILE LAW one hundred (100) shares is reduced to less than one hundred (100) (Sec. 17.2)

PHILIPPINE VETERANS BANK v. CALLANGAN (2011): The ISSUE in this case is whether the Phil. Veterans Bank qualifies as a “public company” under Section 17.2 of the Securities Regulation Code (SRC) in relation with Rule 3(1)(m) of the Amended Implementing Rules and Regulations of the SRC, required to comply with the reportorial requirements set forth in Section 17.1 of the SRC.



NOTE: Under this Section, ‘issuer’ includes: (a) An issuer which has sold a class of its securities pursuant to a registration under section 12 hereof.  BUT the requirement shall be suspended for any fiscal year after the year such registration became effective if such issuer, as of the first day of any such fiscal year, has less than one hundred (100) holder of such class of securities or such other number as the Commission shall prescribe and it notifies the Commission of such; (b) An issuer with a class of securities listed for trading on an Exchange; and (c) An issuer with assets of at least Fifty million pesos (50,000,000.00) or such other amount as the Commission shall prescribe, and having two hundred (200) or more holders each holding at least one hundred (100) share of a class of its equity securities.  The obligation of such issuer to file report shall be terminated ninety (90) days after notification to the Commission by the issuer that the number of its holders holding at least

Under Rule 3(1)(m) of the Amended Implementing Rules and Regulations of the SRC, a “public company” is defined as “any corporation with a class of equity securities listed on an Exchange or with assets in excess of P50,000,000.00 and having 200 or more holders, at least 200 of which are holding at least 100 shares of a class of its equity securities.” It is clear that a “public company,” as contemplated by the SRC, is not limited to a company whose shares of stock are publicly listed; even companies like the Bank, whose shares are offered ONLY to a specific group of people, are considered a public company, PROVIDED they meet the requirements enumerated [under Sections 17.1 and 17.2 of the SRC and/or under the Amended IRR of the SRC]. (2) To the equity holders  An annual report shall be furnished by every issuer which has a class of equity securities satisfying any of the requirements in Subsection 17.2 to each holder of such equity security (Sec. 17.5)

C. 2. DISCLOSURE BY EQUITY HOLDERS 219

UP LAW BOC 


MERCANTILE LAW person, giving the background, identity, residence, and citizenship of each such associate; and

Any person who acquires directly or indirectly the beneficial ownership of more than five of per centum (5%) of such class or in excess of such lesser per centum as the Commission by rule may prescribe, shall, within ten (10) days after such acquisition or such reasonable time as fixed by the Commission, submit to: (1) the issuer of the securities; (2) to the Exchange where the security is traded; and (3) to the Commission, the following information:

(d) Information as to any contracts, arrangements, or understanding with any person with respect to any securities of the issuer including but not limited to transfer, joint ventures, loan or option arrangements, puts or call guarantees or division of losses or profits, or proxies naming the persons with whom such contracts, arrangements, or understanding have been entered into, and giving the details thereof.

(a) The personal background, identity, residence, and citizenship of, and the nature of such beneficial ownership by, such person and all other persons by whom or on whose behalf the purchases are effected; in the event the beneficial owner is a juridical person, the line of business of the beneficial owner shall also be reported;

NOTE: If it appears to the SEC that securities were acquired by person in the ordinary course of his business and were not acquired for the purpose of and do not have the effect of changing or influencing the control of the issuer nor in connection with any transaction having such purpose or effect it may permit any person to file in lieu of the statement required by subsection 17.1 hereof, a notice stating: (1) The name of such person; (2) The shares of any equity securities subject to Subsection 17.1 which are owned by him; (3) The date of their acquisition; and (4) Such other information as the commission may specify (Sec. 18.3)

(b) If the purpose of the purchases or prospective purchases is to acquire control of the business of the issuer of the securities, any plans or proposals which such persons may have that will effect a major change in its business or corporate structure; (c) The number of shares of such security which are beneficially owned, and the number of shares concerning which there is a right to acquire, directly or indirectly, by; (i) such person, and (ii) each associate of such

C. 3. DISCLOSURE BY INSIDER 

220

An insider has the duty to disclose material information with respect

UP LAW BOC


to the issuer or the security that is not generally available to the public (Sec. 27.1)

company, and the Philippine Stock Exchange (if the company is listed there).

An INSIDER means: (a) The issuer; (b) A director or officer (or any person performing similar functions) of, or a person controlling the issuer; gives or gave him access to material information about the issuer or the security that is not generally available to the public; (c) A government employee, director, or officer of an exchange, clearing agency and/or self-regulatory organization who has access to material information about an issuer or a security that is not generally available to the public; or (d) A person who learns such information by a communication from any foregoing insiders (Sec. 3.8)

VI. Civil Liability A. CIVIL LIABILITIES ON ACCOUNT OF FALSE REGISTRATION STATEMENT (SEC. 56)  Civil liabilities arise when the registration statement or any part thereof contains on its effectivity: (1) An untrue statement of a material fact; or (2) Omission to state a material fact required to be stated therein or necessary to make such statements not misleading  Who may be liable? (a) Issuer and every person who signed the registration statement; (b) Director of/partner in the issuer at the time of the filing of the registration statement or any part, supplement or amendment thereof; (c) One who is named in the registration statement as being or about to become and whose written consent thereto is filed with the registration statement; (d) Auditor/auditing firm named as having certified any financial statements used in connection with the registration statement or prospectus; (e) One who, with his written consent filed with the registration statement, has been named as having prepared or certified any part of the registration statement/any report or valuation which is used in

‘Material non-public information’ means: (a) It has not been generally disclosed to the public and would likely affect the market price of the security after being disseminated to the public and the lapse of a reasonable time for the market to absorb the information; or (b) Would be considered by a reasonable person important under the circumstances in determining his course of action whether to buy, sell or hold a security (Sec. 27.2) 

MERCANTILE LAW

A beneficial owner of 10% of a public company becomes a “principal shareholder” required to disclose his interest to the SEC, the 221

UP LAW BOC

(f)

(g)


connection with the registration statement; Selling shareholder who contributed to and certified as to the accuracy of a portion of the registration statement; Underwriter with respect to such security (Sec. 56.1)

MERCANTILE LAW

this Code, by means of a prospectus or other written or oral communication which includes an:  untrue statement of a material fact OR  omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission)

 Who may sue?  Any person who acquires the security AND who suffers damage o UNLESS it is proved that at the time of such acquisition he knew of such untrue statement or omission (Sec. 56.1)



NOTE: When the security is acquired AFTER the issuer has made generally available to its security holders an INCOME STATEMENT covering a period of at least twelve (12) months beginning from the effective date of the registration statement, the right of recovery under Section 56 shall be conditioned on proof that such person acquired the security RELYING UPON such untrue statement in the registration statement or relying upon the registration statement AND NOT KNOWING of such income statement (Sec. 56.2).

DEFENSE: No knowledge of untruth or omission, despite the exercise of reasonable care (Sec. 57.1).

 Who may sue?  Purchaser of the security may sue to recover: (1) Consideration paid for such security with interest thereon, LESS the amount of any income received thereon, upon the tender of such security; or (2) For damages if he no longer owns the security (Sec. 57.1).

B. 2. LIABILITY OF MAKERS OF FALSE MISLEADING STATEMENTS

B. CIVIL LIABILITIES ARISING IN CONNECTION WITH PROSPECTUS, COMMUNICATIONS AND REPORTS (SEC. 57)

 Who may be liable?  Any person who shall make or cause to be made any statement in any report, or document filed pursuant to this Code or any rule or regulation thereunder, which statement as at the time and in the light of the circumstances under which it was made false or misleading with respect to any material fact

B. 1. LIABILITY OF SELLERS/OFFERORS  Who may be liable? (a) Offeror or seller of a security in violation of Chapter on Registration of Securities; (b) Offeror or seller of a security, whether or not exempted by the provisions of 222

UP LAW BOC 


MERCANTILE LAW

D. CIVIL LIABILITY FOR MANIPULATION OF SECURITY PRICES (SEC. 59)

DEFENSE: Good faith and lack of knowledge of the false and misleading statement (Sec. 57.2).

 Who may sue?  Purchaser or seller of security who purchased or sold at a price which was affected by such statement, NOT KNOWING that such statement was false or misleading, and RELYING UPON such statement  SUE FOR: Damages caused by such reliance (Sec. 57.2)

 Who may be liable?  Any person who WILLFULLY participates in any act or transaction in Section 24 (Manipulation of Security Prices).  Who may sue?  Any person who shall purchase or sell any security at a price which was affected by such act or transaction  SUE FOR: Damages as a result of the act or transaction.

C. CIVIL LIABILITY OF FRAUD IN CONNECTION WITH SECURITIES TRANSACTIONS (SEC. 58)

E. CIVIL LIABILITY WITH RESPECT TO COMMODITY FUTURES CONTRACTS AND PRE-NEED PLANS (SEC. 60)

 Who may be liable?  Any person who engages in any act or transaction in violation of Sections 19.2 (fraudulent, deceptive, or manipulative acts or practices in connection with tender offers), 20 (Proxy Solicitations) or 26 (Fraudulent Transactions), or any rule or regulation of the Commission thereunder.

 Who may be liable?  Any person who engages in any act or transactions in WILLFUL violation of any rule or regulation promulgated by the Commission under Section 11 (on Commodity Future Contracts) or 16 (on PreNeed Plans) (Sec. 60.1)

 Who may sue?  Any person who purchases or sells any security, grants or refuses to grant any proxy, consent or authorization, or accepts or declines an invitation for tender of a security  SUE FOR: Damages as a result of the act or transaction.

 Who may sue?  Any person sustaining damages as a result of such act or transaction (Sec. 60.1)

F. CIVIL LIABILITY ON ACCOUNT OF INSIDER TRADING F. 1. LIABILITY FOR NON-DISCLOSURE  Who may be liable? 223

UP LAW BOC


(1)

Any insider who violates Subsection 27.1 (on Insider’s Duty to Disclose When Trading); and (2) Any person in the case of a tender offer who violates Subsection 27.4 (a)(I), or any rule or regulation thereunder, by purchasing or selling a security while in possession of material information not generally available to the public (Sec. 61.1)

MERCANTILE LAW

to whom the communication was directed and who is liable under Subsection 61.1 by reason of his purchase or sale of a security (Sec. 61.2).

G. LIABILITIES OF CONTROLLING PERSONS, AIDER AND ABETTOR AND OTHER SECONDARY LIABILITY G. 1. LIABILITY PERSONS

 Who may sue?  Any investor who, contemporaneously with the purchase or sale of securities that is the subject of the violation, purchased or sold securities of the same class o UNLESS such insider, or such person in the case of a tender offer, proves that such investor KNEW the information or would have purchased or sold at the same price REGARDLESS of disclosure of the information to him (Sec. 61.1)

OF

CONTROLLING

 Who may be liable?  Every person who controls any person liable under this Code or the rules or regulations of the Commission thereunder, shall ALSO be liable jointly and severally with and to the same extent as such controlled persons to any person to whom such controlled person is liable (Sec. 51.1)

F. 2. LIABILITY FOR COMMUNICATING NON-PUBLIC INFORMATION ABOUT ISSUER  Who may be liable? (1) An insider who violates Subsection 27.3; (2) Any person in the case of a tender offer who violates Subsection 27.4 (a), or any rule or regulation thereunder communicating material nonpublic information shall be jointly and severally liable under Subsection 61.1 with, and to the same extent as, the insider, or person in the case of a tender offer,



NOTE: ‘CONTROL’ may be: (a) By or through stock ownership, agency, or otherwise, or (b) In connection with an agreement or understanding with one or more other persons (Sec. 51.1)



DEFENSE: Lack of knowledge of the existence of facts by reason of which the liability of the controlled person is alleged to exist (Sec. 51.1)

G. 2. LIABILITY OF DIRECTOR/OFFICER FOR DELAY IN THE FILING OF REQUIRED DOCUMENTS 

224

Who may be liable?  Any director or officer of, or any owner of any securities issued by, any issuer required to file any

UP LAW BOC


document, report or other information under this Code or any rule or regulation of the Commission thereunder, who, without just cause, hinders, delays or obstructs the making or filing of any such document, report, or information (Sec. 51.3)

to do ANY act or thing which it would be unlawful for such person to do under the provisions of this Code or any rule or regulation thereunder (Sec. 51.2)

G. 3. LIABILITY OF AIDER/ABETTOR 

Who may be liable?  Any person who aids, abets, counsels, commands, induces or procures any violation of this Code, or any rule, regulation or order of the Commission thereunder (Sec. 51.4)  Every person who substantially assists the act or omission of any person primarily liable under Sections 57, 58, 59 and 60 of this Code, with knowledge or in reckless disregard that such act or omission is wrongful o Jointly and severally liable as an aider and abettor for damages resulting from the conduct of the person primarily liable (Sec. 51.5) o NOTE: An aider and abettor shall be LIABLE ONLY:  To the extent of his relative contribution in causing such damages in comparison to that of the person primarily liable, or  To the extent to which the aider and abettor was unjustly enriched thereby  whichever is GREATER (Sec. 51.5) 

MERCANTILE LAW

NOTE: It shall be unlawful for any person, DIRECTLY or INDIRECTLY, 225

UP LAW BOC

Civil Liability Arising …  When the registration statement or any part thereof contains on its effectivity: o An untrue statement of a material fact; or o Omission to state a material fact required to be stated therein or necessary to make such statements not misleading


(a)

(b)

(c)

(d)

(e)

(f)

(g)

Who may be liable? Issuer and every person who signed the registration statement; Director of/partner in the issuer at the time of the filing of the registration statement or any part, supplement or amendment thereof; One who is named in the registration statement as being or about to become (b); Auditor/auditing firm named as having certified any financial statements used in connection with the registration statement or prospectus; One who, with his written consent filed with the registration statement, has been named as having prepared or certified any part of the registration statement/any report or valuation which is used in connection with the registration statement; Selling shareholder who contributed to and certified as to the accuracy of a portion of the registration statement; Underwriter with respect to such security (Sec. 56.1)

226

MERCANTILE LAW

Who may Sue? Any person who acquires the security and who suffers damage unless it is proved that at the time of such acquisition he knew of such untrue statement or omission (Sec. 56.1) NOTE: When the security is acquired after the issuer has made generally available to its security holders an income statement covering a period of at least twelve (12) months beginning from the effective date of the registration statement, the right of recovery under this subsection shall be conditioned on proof that such person acquired the security relying upon such untrue statement in the registration statement or relying upon the registration statement and not knowing of such income statement (Sec. 56.2)

UP LAW BOC


Civil Liability Arising … Who may be liable? In Connection With Prospectus, (a) Offeror or seller of a Communications and security in violation of Reports (Sec. 57) Chapter on Registration of Securities; A. Liability of Sellers/Offerors (b) Offeror or seller of a security, whether or not exempted by the provisions of this Code, by means of a prospectus or other written or oral communication which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission).

MERCANTILE LAW Who may Sue? Purchaser of the security may sue to recover: (1) consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security; or (2) for damages if he no longer owns the security (Sec. 57.1).

Defense: No knowledge of untruth or omission, despite the exercise of reasonable care (Sec. 57.1). In Connection With Prospectus, Communications and Reports (Sec. 57) B. Liability of Makers of False Misleading Statements

Any person who shall make or cause to be made any statement in any report, or document filed pursuant to this Code or any rule or regulation thereunder, which statement as at the time and in the light of the circumstances under which it was made false or misleading with respect to any material fact Defense: Good faith and lack of knowledge of the false and misleading statement (Sec. 57.2).

227

Purchaser or seller of security who purchased or sold at a price which was affected by such statement knowing that such statement was false or misleading, and relying upon such statement may sue for damages caused by such reliance (Sec. 57.2).

UP LAW BOC


MERCANTILE LAW

Civil Liability Arising … Who may be liable? Fraud in Connection with Any person who engages in any Securities Transactions act or transaction in violation of (Sec. 58) Sections 19.2, 20 or 26, or any rule or regulation of the Commission thereunder

Who may Sue? Any other person who purchases or sells any security, grants or refuses to grant any proxy, consent or authorization, or accepts or declines an invitation for tender of a security who sustained damages as a result of the transaction.

Manipulation of Security Prices Any person who willfully (Sec. 59) participates in any act or transaction in Section 24 (Manipulation of Security Prices). With Respect to Commodity Any person who engages in any Futures Contracts and Pre- act or transactions in willful need Plans (Sec. 60) violation of any rule or regulation promulgated by the Commission under Section 11 (on Commodity Future Contracts) or 16 (on Pre-Need Plans) (Sec. 60.1)

Any person who shall purchase or sell any security at a price which was affected by such act or transaction

On Account of Insider Trading

Any investor who, contemporaneously with the purchase or sale of securities that is the subject of the violation, purchased or sold securities of the same class unless such insider, or such person in the case of a tender offer, proves that such investor knew the information or would have purchased or sold at the same price regardless of disclosure of the information to him (Sec. 61.1)

A. Liability for non-disclosure

(a) Any insider who violates Subsection 27.1; (b) and any person in the case of a tender offer who violates Subsection 27.4 (a)(I), or any rule or regulation thereunder, by purchasing or selling a security while in possession of material information not generally available to the public (Sec. 61.1)

228

Any person sustaining damages as a result of such act or transaction (Sec. 60.1)

UP LAW BOC Civil Liability Arising … On Account of Insider Trading B. Liability for communicating non-public information about issuer

SECURITIES REGULATION CODE Who may be liable? (a) An insider who violates Subsection 27.3; OR (b) any person in the case of a tender offer who violates Subsection 27.4 (a), or any rule or regulation thereunder communicating material nonpublic information shall be jointly and severally liable under Subsection 61.1 with, and to the same extent as, the insider, or person in the case of a tender offer, to whom the communication was directed and who is liable under Subsection 61.1 by reason of his purchase or sale of a security (Sec. 61.2).

229

MERCANTILE LAW Who may Sue?

UP LAW BOC


Civil Liability Arising … 7. Liabilities of Controlling Persons, Aider and Abettor and Other Secondary Liability A. Liability Persons

of

Who may be liable? Every person who controls any person liable under this Code or the rules or regulations of the Commission thereunder, shall also be liable jointly and Controlling severally with and to the same extent as such controlled persons to any person to whom such controlled person is liable (Sec. 51.1) NOTE: ‘Control’ may be by or through stock ownership, agency, or otherwise, or in connection with an agreement or understanding with one or more other persons (Sec. 51.1) Defense: Lack of knowledge of the existence of facts by reason of which the liability of the controlled person is alleged to exist (Sec. 51.1)

7. Liabilities of Controlling It shall be unlawful for any Persons, Aider and Abettor director or officer of, or any and Other Secondary owner of any securities issued Liability by, any issuer required to file any document, report or other B. Liability of Director/Officer information under this Code or for Delay in the Filing of any rule or regulation of the Required Documents Commission thereunder, without just cause, to hinder, delay or obstruct the making or filing of any such document, report, or information (Sec. 51.2)

230


UP LAW BOC


Civil Liability Arising … 7. Liabilities of Controlling Persons, Aider and Abettor and Other Secondary Liability C. Liability Aider/Abettor

Who may be liable? It shall be unlawful for any person to aid, abet, counsel, command, induce or procure any violation of this Code, or any rule, regulation or order of of the Commission thereunder (Sec. 51.3) Every person who substantially assists the act or omission of any person primarily liable under Sections 57, 58, 59 and 60 of this Code, with knowledge or in reckless disregard that such act or omission is wrongful, shall be jointly and severally liable as an aider and abettor for damages resulting from the conduct of the person primarily liable (Sec. 51.4) BUT an aider and abettor shall be liable only to the extent of his relative contribution in causing such damages in comparison to that of the person primarily liable, or the extent to which the aider and abettor was unjustly enriched thereby, whichever is greater (Sec. 51.4) NOTE: It shall be unlawful for any person, directly, or indirectly, to do any act or thing which it would be unlawful for such person to do under the provisions of this Code or any rule or regulation thereunder (Sec. 51.2)

231


UP LAW BOC

BANKING LAWS

MERCANTILE LAW

MERCANTILE LAW

BANKING LAWS

232

UP LAW BOC

BANKING LAWS

MERCANTILE LAW

(e) BSP can't acquire shares, including by collateral, nor participate in neither ownership nor management of enterprises, nor engage in development banking or financing [Sec. 128, NCBA]

a) b) c) d)

The New Central Bank Act [RA 7653] Law on Secrecy of Bank Deposits [RA 1405] General Banking Law of 2000 [RA 8791] Philippine Deposit Insurance Corporation Act* [RA 3591, as amended] e) Foreign Currency Deposit Act* [RA 6426] *Not in 2015 SC Bar Syllabus

C. CREATION OF THE BANGKO SENTRAL NG PILIPINAS (BSP)

I. The New Central Bank Act

There is hereby established an independent central monetary authority, which shall be a body corporate known as the Bangko Sentral ng Pilipinas [Sec. 2, NCBA].

[RA 7653]

A. STATE POLICIES The State shall maintain a central monetary authority that shall function and operate as an independent and accountable body corporate in the discharge of its mandated responsibilities concerning money, banking and credit. [Sec. 1]

C.1. NATURE OF THE BSP (1) A central monetary authority; (2) An independent and accountable body; and (3) A government-owned corporation but enjoys fiscal and administrative autonomy. [Secs. 1 & 2, NCBA]

B. SALIENT FEATURES (1) Assurance of BSP independence by providing for the majority of the members of the Monetary Board to come from the private sector. [Sec. 6, NCBA] (2) The BSP may now concentrate on monetary policy, and will phase out its fiscal agency functions and its responsibilities in respect of finance companies without quasibanking functions, which in the past, had distracted it from its primary function. The latter has been assumed by the Securities and Exchange Commission. [Secs. 3, 129, & 130, NCBA] (3) Provides safeguards to ensure that unlike the old Central Bank which sustained huge losses, the BSP would have a positive net income position by the following provisions: (a) Capitalization of P50B; [Sec.2, NCBA] (b) Maintenance of positive net foreign asset position; [Sec.71, NCBA] (c) Charging interests on all loans and advances to banks; [Sec. 85, NCBA] (d) Authority to collect interests on loans and advances to closed financial institutions; [Sec. 85, NCBA] and

C.2. CAPITALIZATION The BSP shall have a capitalization of P50B to be fully subscribed by the Government. [Sec. 2, NCBA]

D. RESPONSIBILITY AND PRIMARY OBJECTIVE D.1. PRIMARY OBJECTIVES (1) To maintain price stability conducive to balanced and sustainable economic growth. (2) To promote and maintain monetary stability and the convertibility of the peso.

D.2. OTHER RESPONSIBILITIES (1) To provide policy directions in the areas of money, banking, and credit (2) To supervise operations of banks (3) Regulates finance companies and non-bank financial institutions performing quasibanking functions [Sec. 3, NCBA]

233

UP LAW BOC

BANKING LAWS

D.3. BSP AS TRANSFEREE OF PHILIPPINE CENTRAL BANK POWERS

MERCANTILE LAW

officials is found to be liable for negligence or misconduct. [Sec. 15, NCBA]

All powers, duties and functions vested by law in the Central Bank of the Philippines not inconsistent with the NCBA shall be deemed transferred to the BSP. All references to the Central Bank of the Philippines in any law or special charters shall be deemed to refer to the BSP. [Sec. 136, NCBA]

E.2. COMPOSITION The MB shall be composed of 7 members appointed by the President with a 6-year term. [Sec. 6, NCBA]

MEMBERS (1) The BSP Governor or his designated alternate (a deputy governor); (2) A Cabinet member to be designated by the President or his designated alternate (an Undersecretary in his department); and (3) 5 members from the private sector [Sec. 6, NCBA]

E. MONETARY BOARD The body through which the powers and functions of the Bangko Sentral are exercised [Sec 6, NCBA]

E.1. POWERS AND FUNCTIONS (1) Issue rules and regulations it considers necessary for the effective discharge of the responsibilities and exercise of the powers vested in it; (2) Direct the management, operations, and administration of the BSP, reorganize its personnel and issue such rules and regulations as it may deem necessary or desirable for this purpose; (3) Establish a human resource management system which governs the selection, hiring, appointment, transfer, promotion, or dismissal of all personnel; (4) Adopt an annual budget for and authorize such expenditures by BSP as are in the interest of the effective administration and operations of Bangko Sentral in accordance with applicable laws and regulations; and (5) Indemnify its members and other officials of the BSP, including personnel of the departments performing supervision and examination functions, against all costs and expenses reasonably incurred by such persons in connection with any civil or criminal action, suit or proceeding, to which any of them may be made a party by reason of the performance of his functions or duties, unless such members or other

E.3. REAPPOINTMENT No member of the MB may be reappointed more than once. [Sec. 6, NCBA]

E.4. QUALIFICATIONS (1) Citizenship – Natural-born citizens of the Philippines; (2) Age General Rule: At least 35 years old Exception: Governor must be at least 40 years old; (3) Of good moral character; (4) Of unquestionable integrity; (5) Of known probity and patriotism; and (6) With recognized competence in social and economic disciplines. [Sec. 8, NCBA]

E.5. DISQUALIFICATIONS In addition to the disqualifications under the Code of Conduct and Ethical Standards for Public Officials and Employees [RA 6713], a member of the Monetary Board is disqualified by: (1) Direct connection with any multilateral banking or financial institution; or (2) Substantial interest in any private bank in the Philippines, within 1 year prior to his appointment [Sec. 9, NCBA] 234

UP LAW BOC

BANKING LAWS

MERCANTILE LAW

E.9. CIVIL LIABILITY OF MEMBERS OF THE MB

E.6. PROHIBITION ON MEMBERS OF THE MB (1) Being a director, officer, employee, consultant, lawyer, agent or stockholder of any bank, quasi-bank, or any other institution which is subject to supervision or examination by the BSP (remedy: resign and divest interests before assuming office]; (2) Holding any other public office or public employment during their tenure; and (3) Being employed in any multilateral banking or financial institution within 2 years after the expiration of his term. Exception: When he serves as an official representative of the government to such institution. [Sec. 9, NCBA]

Members of the MB, officials, examiners, and employees of the BSP are liable when they: (1) Willfully violate the provisions of the NCBA; (2) Are guilty of negligence, abuses or acts of malfeasance or misfeasance; or (3) Fail to exercise extraordinary diligence in the performance of his duties; (4) Disclose confidential information, or information relating to MB discussions or resolutions, or about the BSP’s confidential operations Exceptions: (a) Disclosure is in connection with the performance of official functions with the BSP; (b) MB or BSP Governor’s prior authorization; or (5) Use confidential information for their personal gain –or– to the detriment of the Government, BSP, or 3rd Parties [Sec. 16, NCBA]

E.7. GROUNDS FOR REMOVAL OF ANY MEMBER OF THE MB (1) If the member is subsequently disqualified under Sec. 8; (2) If he is physically or mentally incapacitated that he cannot properly discharge his duties and responsibilities and such incapacity has lasted for more than 6 months; (3) If he is guilty of acts or operations which are of fraudulent or illegal character or which are manifestly opposed to the aims and interests of the BSP; and (4) If he no longer possesses the qualifications under Sec. 8. [Sec. 10, NCBA]

F. HOW THE BSP HANDLES BANKS IN DISTRESS Liquidity – Ability of an asset to be converted into cash. An entity is liquid when it is able to pay its liabilities when they fall due. Solvency – When current assets are more than current liabilities, providing the ability to pay debts. An entity is solvent when it is able to meet its long term obligations/liabilities.

E.8. VACANCIES, HOW FILLED Causes: (1) Death; (2) Resignation; or (3) Removal.

Insolvency – When the actual market value of assets are insufficient to pay its liabilities, not considering capital stock and surplus which are not liabilities for such purpose. An entity is insolvent when it is unable to meet current and long-term obligations.

Effect: A new member will be appointed to complete the unexpired period of the term of the member concerned. [Sec. 7, NCBA]

235

UP LAW BOC

BANKING LAWS

F.1. CONSERVATORSHIP I. GROUNDS FOR APPOINTMENT OF A CONSERVATOR

MERCANTILE LAW

VI. QUALIFICATIONS CONSERVATOR

OF

A

The conservator should be competent and knowledgeable in bank operations and management. [Sec. 29, NCBA]

Whenever, on the basis of a report submitted by the appropriate supervising or examining department, the MB finds that a bank or quasibank is: (1) In a state of continuing inability; or (2) Unwillingness to maintain a condition of liquidity deemed adequate to protect the interest of depositors and creditors [Sec. 29, NCBA]

The appointment of a conservator shall be vested exclusively in the MB. [Sec. 30, NCBA]

VII. POWERS AND CONSERVATOR

DUTIES

OF

A

(1) To take charge of the assets, liabilities, and the management thereof; (2) To reorganize the management; (3) To collect all monies and debts due said institution; (4) To exercise all powers necessary to restore its viability; (5) To report and be responsible to the MB; (6) To overrule or revoke the actions of the previous management and board of directors of the bank or quasi-bank. [Sec. 29, NCBA]

II. PERIOD Shall not exceed 1 year [Sec. 29, NCBA]

III. EXPENSES The expenses attendant to the conservatorship shall be borne by the bank or quasi-bank concerned [Sec. 29, NCBA]

IV. GROUNDS FOR TERMINATION OF CONSERVATORSHIP BY MB (1) When MB is satisfied that the institution can continue to operate on its own and the conservatorship is no longer necessary; or (2) When, on the basis of the report of the conservator or of its own findings, the MB determines that the continuance in business of the institution would involve probable loss to its depositors or creditors (effect: the bank or quasi-bank would then be placed under receivership) [Sec. 29, NCBA]

VIII. THE CONSERVATOR CANNOT REPUDIATE PERFECTED CONTRACTS While the Central Bank law gives vast and far reaching powers to the conservator of a bank, such powers must be related to the preservation of the assets of the bank, the reorganization of the management and the restoration of viability. Such powers cannot extend to the post-facto repudiation of perfected transactions, otherwise they would infringe against the non-impairment clause of the Constitution. [First Philippine International Bank v. CA, 1996]

V. EFFECTS OF CONSERVATORSHIP (1) Bank/Quasi-bank retains juridical personality (2) Not a precondition to the designation of a receiver [Sec. 30, NCBA], and; (3) Perfected transactions cannot be repudiated [First Philippine International Bank v. CA, 1996]

IX. REMUNERATION General Rule: The conservator shall receive remuneration in an amount not to exceed 2/3 of the salary of the president of the institution in 1 year, payable in 12 equal monthly payments.

236

UP LAW BOC

BANKING LAWS

MERCANTILE LAW

II. WHO ACTS AS RECEIVER

Exception: A conservator connected with the BSP, in which case said conservator shall not be entitled to receive any remuneration or emolument. [Sec. 29, NCBA]

(1) If a banking institution: the PDIC (2) If a quasi-bank: any person of recognized competence in banking or finance [Sec. 30, NCBA]

F.2. CLOSURE I. CONCEPT

III. WHO APPOINTS RECEIVERS

The MB may summarily and without need for prior hearing close a banking institution and place it under receivership

The appointment of a receiver shall be vested exclusively in the MB. [Sec. 30, NCBA]

IV. CONSERVATORSHIP RECEIVERSHIP

II. GROUNDS When a banking institution: (1) Notifies the BSP or publicly announces a bank holiday; or (2) Suspends the payment of its deposit liabilities continuously for more than 30 days in any manner [Sec. 53, GBL]

VIS-À-VIS

The designation of a conservator is not a precondition to the designation of a receiver. [Sec. 30, NCBA]

V. POWERS AND DUTIES OF A RECEIVER (1) Immediately gather and take charge of all the assets and liabilities of the institution (2) Administer the assets for the benefit of the creditors (3) Exercise the general powers of a receiver under the Revised Rules of Court (4) Not to pay or commit any act that will involve the transfer or disposition of any asset of the institution. Exceptions: (1) Administrative expenditures; (2) Receiver may deposit or place funds in non-speculative investments. (5) Subject to prior approval of the MB, determine, as soon as possible, but not later than 90 days from take-over, whether the institution may be rehabilitated or otherwise placed in such a condition so that it may be permitted to resume business with safety to its depositors and creditors and the general public. [Sec. 30, NCBA]

F.3. RECEIVERSHIP I. GROUNDS Whenever the MB finds that a bank or quasibank: (1) Is unable to pay its liabilities as they become due in the ordinary course of business. Exception: This shall not include inability to pay caused by extraordinary demands induced by financial panic in the banking community; (2) Has insufficient realizable assets, as determined by the BSP, to meet its liabilities; or (3) Cannot continue in business without involving probable losses to its depositors or creditors; or (4) Has willfully violated a cease-and-desist order under Sec. 37 that has become final, involving acts or transactions which amount to fraud or a dissipation of the assets of the institution. Special rule: in this situation, the MB may act summarily and without hearing [Sec. 30, NCBA]

The assets of the institution under receivership and liquidation shall be deemed in custodia legis and shall be exempt from any order of garnishment, levy, attachment, or execution. [Sec. 30, NCBA]

237

UP LAW BOC

BANKING LAWS

VI. CLOSE NOW, HEAR LATER SCHEME

MERCANTILE LAW

(c) Decide on other issues as may be material to implement the liquidation plan (3) The receiver shall convert the assets of the institutions to money, dispose of the same to creditors and other parties, for the purpose of paying the debts of such institution in accordance with the rules on concurrence and preference of credit under the Civil Code. [Sec. 30, NCBA]

Sec. 29 of the Central Bank Act does not contemplate prior notice and hearing before a bank may be directed to stop operations and placed under receivership. It is enough that such action is made subject of a subsequent judicial review. When the law provides for the filing of a case within 10 days after the receiver takes charge of the assets of the bank, it is unmistakable that the assailed actions should precede the filing of the case. The legislature could not have intended to authorize “no prior notice and hearing” in the bank’s closure and at the same time allow a suit to annul it on the basis of absence thereof [Central Bank vs. CA and Triumph Savings Bank, GR No. 76118, March 30, 1993]

III. SUITS BY RECEIVER The receiver may institute actions to collect and recover assets or defend actions against the institution, with the assistance of counsel as he may retain. [Sec. 30, NCBA]

IV. ASSETS ARE UNDER CUSTODIA LEGIS F.4. LIQUIDATION I. NOTICE

The assets of the institution under receivership and liquidation shall be deemed in custodia legis and shall be exempt from any order of garnishment, levy, attachment, or execution. [Sec. 30, NCBA]

Should the determination be that the institution cannot be rehabilitated or permitted to resume business, the MB shall notify in writing the board of directors of the institution of its findings and direct the receiver to proceed with the liquidation of the institution. [Sec. 30, NCBA]

V. DISPOSITIONS After payment of the cost of proceedings, including reasonable expenses and fees of the receiver to be allowed by the court, the receiver shall pay the debts of such institution, under order of the court, in accordance with the rules on concurrence and preference of credit in the Civil Code. [Sec. 31, NCBA]

II. PROCEDURE (1) The receiver shall file ex parte with the proper RTC, and without requirement of prior notice or any other action, a petition for assistance in the liquidation of the institution pursuant to the liquidation plan adopted by the PDIC. Special rule: if quasibank, liquidation plan adopted by the MB; (2) Upon acquiring jurisdiction, the court shall, upon motion by the receiver after due notice: (a) Adjudicate disputed claims against the institution; (b) Assist the enforcement of individual liabilities of the stockholders, directors, and officers; and

All revenues and earnings realized by the receiver in winding up the affairs and administering the assets of any bank or quasibank shall be used to pay the costs of proceedings, salaries of such personnel whose employment is rendered necessary in the discharge of the liquidation together with other additional expenses caused thereby. The balance of revenues and earnings, after the payment of all said expenses, shall form part of the assets available to creditors. [Sec. 32. NCBA]

238

UP LAW BOC

BANKING LAWS

VI. EFFECTS OF APPOINTMENT RECEIVER/LIQUIDATION

OF

G.2. RATE OF EXCHANGE The MB shall: (1) Determine the exchange rate policy of the country; (2) Determine the rates at which the BSP shall buy and sell spot exchange; (3) Establish deviation limits from the effective exchange rate or rates as it may deem proper. (4) Determine the rates for other types of foreign exchange transactions by the BSP, including purchases and sales of foreign notes and coins. [Sec. 74, NCBA]

(1) Retention of juridical personality; (2) Suspension of operations / Stoppage of business; (3) Assets are deemed in custodia legis, i.e., exempt from garnishment, levy or execution; (4) Stay of execution of judgment to prevent depletion of bank assets; (5) Bank is not liable to pay interest on deposits which accrued during the period of suspension of operation; (6) Restriction of bank’s capacity to do new business (new loans, deposits) but with obligation to collect pre-existing debts.

G. HOW THE EXCHANGE CRISIS

BSP

MERCANTILE LAW

Limitation: The margins between the effective exchange rates and the rates established by the MB may not exceed the corresponding margins for spot exchange transactions by more than the additional costs or expenses involved in each type of transactions. [Sec. 74, NCBA]

HANDLES

G.1. LEGAL TENDER POWER

II. Law on Secrecy of Bank Deposits

All notes and coins issued by the BSP shall be fully guaranteed by the Government of the Republic of the Philippines and shall be legal tender in the Philippines for all debts, both public and private. [Sec. 52, NCBA]

[RA No. 1405, as amended]

A. POLICY

Limitation: Coins shall be legal tender in amounts not exceeding P50 for denominations of 25 centavos and above, and in amounts not exceeding P20 for denominations of 10 centavos or less. Exception to Limitation: MB may fix otherwise. [Sec. 52, NCBA]

1.

To give encouragement to the people to deposit their money in banking institutions; and 2. To discourage private hoarding. [Sec. 1]

B. PURPOSE That money may be properly utilized by banks in authorized loans to assist in the economic development of the country. [Sec. 1]

The maximum amount of coins to be considered as legal tender is: [BSP Circular 537 (2006)] (1) P1,000.00 for denominations of 1-Piso, 5Piso and 10-Piso coins; and (2) P100.00 for denominations of 1-sentimo, 5sentimo, 10-sentimo, and 25-sentimo coins.

The absolute confidentiality rule in R.A. No. 1405 actually aims at protection from unwarranted inquiry or investigation if the purpose of such inquiry or investigation is merely to determine the existence and nature, as well as the amount of the deposit in any

239

UP LAW BOC

BANKING LAWS

given bank account. [China Banking Corporation v. Ortega, 1973]

MERCANTILE LAW

government or of any party seeking to enforce those exceptions and inquire into bank deposits. If there are doubts in upholding the absolutely confidential nature of bank deposits against affirming the authority to inquire into such accounts, then such doubts must be resolved in favor of confidentiality. [Republic v. Eugenio, 2008]

C. PROHIBITED ACTS (1) Examination, inquiry, or looking into deposits by persons, government officials, bureaus, or offices; [Sec. 2, RA 1405] (2) Disclosure by banking institutions' officials or employees to unauthorized persons regarding information about covered accounts. [Sec. 3, RA 1405]

Zones of Privacy Under the RA 1405, bank deposits are statutorily protected or recognized zones of privacy. [People v. Estrada, G.R. No. 164368, April 2, 2009; Marquez v. Desierto, G.R. No. 135882, June 27, 2001, 359 SCRA 772; Ople v. Torres, G.R. No. 107737. October 1, 1999, 316 SCRA 43]

D. DEPOSITS COVERED General rule: All deposits of whatever nature with banks or banking institutions in the Philippines are considered as of an absolutely confidential nature. [Sec. 2, RA 1405] Investment in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are included. [Sec. 2]

It is conceded that while the fundamental law has not bothered with the triviality of specifically addressing privacy rights relative to banking accounts, there, nevertheless, exists in our jurisdiction a legitimate expectation of privacy governing such accounts. The source of this right of expectation is statutory, and it is found in R.A. No. 1405, otherwise known as the Bank Secrecy Act of 1955. [BSB Group, Inc., v. Go, 2010]

Special rule: The confidentiality of foreigncurrency deposits is governed by the Foreign Currency Deposit Act. Exclusions: Money-market placement is not covered by RA 1405 because it is not deposited in the bank.

E. EXCEPTIONS

“Of Whatever Nature” Based on this phrase, the term "deposits" is to be understood broadly and not limited to accounts giving rise to creditor-debtor relations between the bank and depositor. The deposit of money which may be used by banks for authorized loans to 3rd persons also falls under RA 1405. Therefore, trust accounts are also covered. [Ejercito v. SB Special Division, 2006]

[Sec. 2] (1) Upon written permission of the depositor (2) In cases of impeachment (3) Upon order of competent court in the following cases: (a) Bribery [Sec. 2] (b) Dereliction of duty of public officials [Sec. 2] (c) Unexplained wealth under Sec. 8 of the Anti-Graft and Corrupt Practices Act [RA 3019]. [PNB v. Gancayco, 1965; Banco Filipino v. Purisima, 1988; Marquez v. Desierto, 2001] The exception applies to cases of concealment of illegally acquired

By force of statute, all bank deposits are absolutely confidential, and that nature is unaltered even by the legislated exceptions. There is disfavor towards construing these exceptions in such a manner that would authorize unlimited discretion on the part of the 240

UP LAW BOC

BANKING LAWS

property in anti-graft cases. The inquiry into illegally acquired property – or property not "legitimately acquired" – extends to cases where such property is concealed by being held by or recorded in the name of other persons. [Banco Filipino v. Purisima, 1988]

MERCANTILE LAW

Where the plaintiff is fishing for information so it can determine the culpability of private respondent and the amount of damages it can recover from the latter. It does not seek recovery of the very money contained in the deposit. The subject matter of the dispute may be the amount of P999,000.00 that petitioner seeks from private respondent as a result of the latter's alleged failure to inform the former of the discrepancy; but it is not the P999,000.00 deposited in the drawer's account. By the terms of RA 1405, the ‘money deposited’ itself should be the subject matter of the litigation. [Union Bank v. Court of Appeals, 1999]

(d) Those under the AMLA [RA 9160, the Anti-Money Laundering Act of 2001] when there is probable cause that the deposits or investments involved are in any way related to an unlawful activity or a money laundering offense. [Sec. 11, AMLA as amended] Exceptions to the court requirement: cases involving: (i) Kidnapping for Ransom [RPC] (ii) Dangerous Drugs [2002 Comprehensive Dangerous Drugs Act] (iii) Hijacking and other violations of RA 6235, (iv) Destructive arson and murder

A civil case by Mellon Bank for the recovery of amounts converted by the Javiers after a bank erroneously transferred $1M instead of $1k necessarily involved inquiring into the whereabouts of the illegally-acquired amount extends to whatever is concealed by being held or recorded in the name of persons other than the perpetrators. Therefore, this falls under the exceptions to bank secrecy under RA 1405. [Mellon Bank, N.A. v. Magsino, 1990]

(4) In cases where the money deposited or invested is the subject matter of litigation

OTHER EXCEPTIONS:

The phrase "subject matter of the action" means the physical facts, real or personal things, money, land, chattels, etc., in relation to which the suit is prosecuted. It does not mean the defendant's delict or wrong. [Mathay v. Consolidated Bank and Trust Company, 1974]

(1) When inquiry is conducted under the authority of the Commissioner of Internal Revenue into the bank accounts of the following: (a) A decedent in order to determine his gross estate (b) Any taxpayer who has filed an application for compromise of his tax liability, which application shall include a written waiver of his privilege under RA 1405 or under other general or special laws

We note with approval the difference between the “subject of the action” from the “cause of action.’ We also find petitioner's definition of the phrase ‘subject matter of the action’ is consistent with the term ‘subject matter of the litigation,” as the latter is used in the Bank Deposits Secrecy Act.

Information obtained from banks and financial institutions may be furnished to a foreign tax authority pursuant to an existing 241

UP LAW BOC

BANKING LAWS

MERCANTILE LAW

convention or agreement. [Sec. 6(F), NIRC, as amended by RA 10021] (2) BSP inquiry or examination in the course of its periodic or special examination of the bank. [Sec. 11, AMLA]

jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such inspection may cover only the account identified in the pending case.”

(3) Disclosure of certain information about bank deposits which have been dormant for at least 10 years, to the Treasurer of the Philippine in a sworn statement, a copy of which is posted in the bank premises. [Sec. 2, Unclaimed Balances Law, Act No. 3926, as amended by PD 679]

F. GARNISHMENT OF DEPOSITS General rule: The prohibition against examination of or inquiry into a bank deposit under Republic Act 1405 does not preclude its being garnished to insure satisfaction of a judgment. [China Banking Corporation v. Ortega, 1973; Philippine Commercial and Industrial Bank v. Court of Appeals, 1991]

(4) The PDIC and/or the BSP can inquire into or examine deposit accounts and all information related thereto in case there is a finding of unsafe and unsound banking practice [Sec. 8, paragraph 8, R.A. 3591, as amended by R.A. 9576].

“[T]he prohibition against examination of or inquiry into a bank deposit under Republic Act 1405 does not preclude its being garnished to insure satisfaction of a judgment. Indeed there is no real inquiry in such a case, and if the existence of the deposit is disclosed the disclosure is purely incidental to the execution process. It is hard to conceive that it was ever within the intention of Congress to enable debtors to evade payment of their just debts, even if ordered by the Court, through the expedient of converting their assets into cash and depositing the same in a bank.”[China Banking Corporation v. Ortega, 1973]

(5) The Secretary of Justice in his Opinion No. 13 s. 1987 concluded that the PCGG (Presidential Commission on Good Government) can compel banks to disclose or produce bank records without violating the bank secrecy laws. [Morales, The Philippine General Banking Law] Not an exception: Power of the Ombudsman to “examine and have access to bank accounts and records” under Sec. 15[8] of RA 6770 [Morales, The Philippine General Banking Law]

Exception: Foreign Currency Deposits The foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. [Sec. 8, FCDA – Foreign Currency Deposit Act]

The SC in Marquez v. Desierto [G.R. No.135882, June 27, 2001] and Ombudsman v. Ibay [G.R. No. 137538, September 3, 2001] restricted the Ombudsman’s power in this manner:

Exception to the exception: In a case where a Filipino child was raped by a foreigner, the SC allowed, pro hac vice, garnishment of foreign currency deposits stating: “If we rule that the questioned Section 113 of CB Circular No. 960 which exempts from attachment, garnishment, or any other order or process of any court,

“[B]efore an in camera inspection may be allowed, there must be a pending case before a court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent 242

UP LAW BOC

BANKING LAWS

legislative body, government agency or any administrative body whatsoever, is applicable to a foreign transient, injustice would result especially to a citizen aggrieved by a foreign guest.” [Salvacion v. CA, 1997]

I. CONFIDENTIALITY CURRENCY DEPOSITS

OF

MERCANTILE LAW

B. DEFINITION AND CLASSIFICATION OF BANKS Bank – Entities engaged in the lending of funds obtained in the form of deposits [Sec. 3.1, GBL]

B.1. CORE BANKING FUNCTIONS:

FOREIGN

(1) Taking of deposits from the public (2) Lending out these funds [Morales, The Philippine General Banking Law]

General rule: Foreign currency deposits are confidential.

B.2. CLASSIFICATION OF BANKS

Exceptions: (1) Upon written permission of the depositor [Sec. 8, Foreign Currency Deposit Act ; Intengan vs CA ; 2002] (2) Upon order of a competent court in cases of violation of the AMLA [Sec. 11, AMLA] (3) During BSP’s periodic or special examinations, and (4) Disclosure of the Treasurer of the Philippines when the unclaimed balances law applies [Act 3936, as amended by PD 679] (5) BSP/PDIC inquiry if there is a finding of unsafe and unsound banking practice

[Sec 3.2] (1) Universal Banks (UB) (2) Commercial Banks (KB) (3) Thrift Banks (a) Savings and mortgage banks (b) Stock savings and loan associations (c) Private development banks (4) Rural Banks (5) Cooperative Banks (6) Islamic Banks (7) Other classification of banks as may be determined by the Monetary Board of the BSP (1) Universal Banks (2) Commercial Banks (3) Thrift Banks The term ‘thrift banks’ also refers to any banking corporation organized for the following purposes: (a) Accumulating the savings of depositors and investing them, together with capital loans secured by bonds, mortgages in real estate and insured improvements thereon, chattel mortgage, bonds and other forms of security or in loans for personal or household finance, whether secured or unsecured, or in financing for homebuilding and home development; in readily marketable and debt securities; in commercial papers and accounts receivables, drafts, bills of exchange, acceptances or notes arising

II. PENALTIES (1) Imprisonment of not more than 5 years; or (2) Fine of not more than P20,000; or (3) Both, in the discretion of the court [Sec. 5, RA 1405]

III. General Banking Law of 2000 [RA 8791]

A. POLICY To promote and maintain a stable and efficient banking and financial system that is globally competitive, dynamic and responsive to the demands of a developing economy. [Sec. 2, GBL]

243

UP LAW BOC

BANKING LAWS

out of commercial transactions; and in such other investments and loans which the Monetary Board may determine as necessary in the furtherance of national economic objectives; (b) Providing short-term working capital, medium- and long-term financing, to businesses engaged in agriculture, services, industry and housing; and (c) Providing diversified financial and allied services for its chosen market and constituencies especially for small and medium enterprises and individuals. [Sec.3[a], Thrift Banks Act]

MERCANTILE LAW

(7) Other classification of banks as may be determined by the Monetary Board of the BSP Examples: Philippine Veterans Bank [RA 3518], Landbank of the Philippines [RA 3844], Development Bank of the Philippines [RA 85]

C. DISTINCTION OF BANKS FROM QUASI-BANKS AND TRUST ENTITIES Quasi-banks – entities engaged in the borrowing of funds through the issuance, endorsement or assignment with recourse or acceptance of deposit substitutes for purposes of relending or purchasing receivables and other obligations. [Sec. 4, GBL]

(4) Rural Banks These banks are mandated to make needed credit available and readily accessible in the rural areas on reasonable terms and which are primarily governed by the Rural Banks Act of 1992 [RA 7353].

Deposit substitutes – funds obtained from the public, other than deposits, through the issuance, endorsement, or acceptance of deposit-substitute instruments for the borrower's own account, for the purpose of relending or purchasing of receivables and other obligations. It includes bankers acceptances, promissory notes, participations, certificates of assignment and similar instruments with recourse, and repurchase agreements. [Sec. 95, NCBA]

(5) Cooperative Banks A cooperative bank is one organized for the primary purpose of providing a wide range of financial services to cooperatives and their members. [Art. 23(i), Philippine Cooperative Code as Amended, RA 6938]

Trust Entities – a stock corporation or a person duly authorized by the Monetary Board to engage in trust business. [Sec. 79, GBL]

It may perform any or all of the services offered by a rural bank, including the operation of an FCDU subject to certain conditions. [Morales, The Philippine General Banking Law]

A Trust Business is any activity resulting from trusteeship involving the appointment of a trustee by a trustor for the administration, holding, management of funds and/or properties of the trustor by the trustee for the use, benefit or advantage of the trustor or of beneficiaries.

(6) Islamic Banks These are banks the business dealings and activities of which are subject to the basic principles and rulings of Islamic Shari’a. The Al Amanah Islamic Investment Bank of the Philippines, created by RA 6848, is the only Islamic bank in the country at this time.

244

UP LAW BOC

BANKING LAWS

candidate or for purposes of partisan political activity (10) To establish pension, retirement, and other plans for the benefit of its directors, trustees, officers and employees (11) To exercise such other powers as may be essential or necessary to carry out its purposes as stated in the AOI.

D. BANK POWERS AND LIABILITIES UB

MERCANTILE LAW

KB

Powers 1. Corporate Powers 1. Corporate Powers 2. Banking and 2. Banking and Incidental Powers Incidental Powers 3. Powers of an [Sec. 29] investment house 3. Power to invest in 4. Power to invest in allied enterprises [Sec. non-allied enterprises 30] [Sec. 23] 5. Power to invest in allied enterprises [Sec. 24]

D.2. BANKING AND INCIDENTAL POWERS All such powers as may be necessary to carry on the business of commercial banking [Sec. 29, GBL] (1) Accepting drafts (2) Issuing letters of credit (3) Discounting and negotiating promissory notes, drafts, bills of exchange, and other evidence of debt (4) Accepting or creating demand deposits (5) Receiving other types of deposits and deposit substitutes (6) Buying and selling foreign exchange and gold or silver bullion (7) Acquiring marketable bonds and other debt securities (8) Extending credit

D.1. CORPORATE POWERS [Sec. 36, Corporation Code] (1) To sue and be sued in its corporate name; (2) Succession by its corporate name for the period stated in the AOI and the certificate of incorporation (3) To adopt and use a corporate seal (4) To amend its AOI (5) To adopt by-laws, not contrary to law, morals, or public policy, and to amend or repeal them (6) To issue or sell stocks to subscribers and to sell treasury stocks. (7) To purchase, receive, take or grant, hold, convey, sell, lease, pledge, mortgage and otherwise deal with such real and personal property, including securities and bonds of other corporations, as the transaction of the lawful business of the corporation may reasonably and necessarily require, subject to the limitations prescribed by law and the Constitution (8) To enter into merger or consolidation (9) To make reasonable donations, including those for the public welfare or for hospital, charitable, cultural, scientific, civic, or similar purposes: provided that no corporation, domestic or foreign, shall give donations in aid of any political party or

(1) Accepting drafts By accepting a draft, a bank creates a “banker’s acceptance”, which is a negotiable time draft or bill of exchange drawn on and accepted by a commercial bank. This is different from “trade acceptance”, which is accepted by the buyer. [Morales, The Philippine General Banking Law] (2) Issuing letters of credit (3) Discounting and negotiating promissory notes, drafts, bills of exchange, and other evidence of debt

245

UP LAW BOC

BANKING LAWS

(4) Accepting or creating demand deposits

MERCANTILE LAW

box is not given to the renters. The prevailing rule is that the relation between the bank renting out and the renter is that of bailor and bailee the bailment being for hire and mutual benefit. [CA Agro-industrial Dev. Corp. v. CA, 1983]

General rule: Only a UB KB can accept or create demand deposits [Sec. 33, GBL] Exception: Banks other than a UB or KB with prior approval of, and subject to such conditions and rules as may be prescribed by the Monetary Board [Sec. 33, GBL]

(5) Receiving other types of deposits and deposit substitutes Types of Deposits: 1. Time Deposit - Interest rate stipulated depending on the number of days. During this period, the money deposited may not be withdrawn without incurring penalty. High interest rates. 2. Savings Deposit - Bank pays an interest rate, but not as high as time deposits. 3. Demand Deposits/Current Accounts - No interest is paid by the bank because the depositor can take out his funds any time. It is called demand deposit because the depositor can withdraw the money he deposited on the very same day when he deposited it or at any time thereafter. [VILLANUEVA, Commercial Law Review] 4. Negotiable Order of Withdrawal Accounts – Interest-bearing deposit accounts that combine the payable on demand feature of checks and investment feature of savings accounts [Sec. X223, Manual of Regulations for Banks]

Fixed, savings, and current deposits of money in banks and similar institutions shall be governed by the provisions concerning simple loan. [Art. 1980, NCC] Presumption of ownership of deposits It is presumed that money deposited in a bank account belongs to the person in whose name the deposit account is opened. A depositor is presumed to be the owner of funds standing in his name in a bank deposit; and where a bank is not chargeable with notice that the money deposited in such account is the property of some other person than the depositor, the bank is justified in paying out the money to the depositor or upon his order, and cannot be liable to any other person as the true owner. [Fultron Iron Works Co. v. China Banking Corporation, 1930] No duty to set-off A bank is under no duty or obligation to make an application or set-off against the deposit accounts of a borrower. To apply the deposit to the payment of a loan is a privilege, a right of set-off which the bank has the option [but not the obligation] to exercise. [BPI v. CA and Eastern Plywood, 1994]

(6) Buying and selling foreign exchange and gold or silver bullion (7) Acquiring marketable bonds and other debt securities (8) Extending credit

Safety deposit boxes The rent of safety deposit boxes is a special kind of deposit and cannot be characterized as an ordinary contract of lease because the full and absolute possession and control of the deposit

“Know your customer” rule Before granting a loan or other credit accommodation, a bank must ascertain that the debtor is capable of fulfilling its commitments to the bank. [Sec. 40, GBL] 246

UP LAW BOC

BANKING LAWS

The bank may demand from its credit applicants a statement of their assets and liabilities and of their income and expenditure and such information as may be prescribed by law or by rules and regulations of MB to enable the bank to properly evaluate the credit application which includes the corresponding financial statements submitted for taxation purposes to the BIR. [Sec. 40, GBL]

On security of chattels and intangible properties (patents, trademarks, trade names, and copyrights)

Credit enhancement If the borrower is less than creditworthy, third persons may enhance his credit by providing guarantees and other security devices in favor of the bank. [Morales, The Philippine General Banking Law, opinion]

MERCANTILE LAW General rule: Shall not exceed 75% of the appraised value of the security, and such loans and other credit accommodations may be made to the title-holder of the chattels and intangible properties or his assignees Exception: The Monetary Board otherwise prescribes [Sec. 38, GBL]

Grant of loans (1) Only in amounts and for the periods of time essential for the effective completion of the operations to be financed; and (2) Consistent with safe and sound banking practices. [Sec. 39, GBL]

A bank cannot lend pesos to a non-resident [BSP Circular No. 22; Sec. 22, Manual of Regulations on Foreign Exchange Transactions]. [Morales, The Philippine General Banking Law]

Purpose of loans The purpose shall be stated in the application and in the contract between the bank and the borrower. [Sec. 39, GBL]

Material misrepresentation If there is material misrepresentation, bank— (1) May terminate any loan or other credit accommodation granted on the basis of said statements; and (2) Shall have the right to demand immediate repayment or liquidation of the obligation [Sec. 40, GBL]

Effect of usage of loan proceeds for purposes other than those agreed upon with the bank The bank shall have the right to terminate the loan or other credit accommodation and demand immediate repayment of the obligation. [Sec. 39, GBL]

Limit on loans, credit accommodations and guarantees General rule: Shall not exceed 75% of the appraised value of the respective real estate security, plus 60% of the appraised value of the insured Against improvements, and such loans Real estate may be made to the owner of the real estate or to his assignees Exception: Where the Monetary Board otherwise prescribes [Sec. 37, GBL]

Amortization on loans and other credit accommodations (1) Loans and other credit accommodations with maturities of more than 5 years – Requirement: Provisions must be made for periodic amortization payments, but such payments must be made at least annually. Special rule: That when the borrowed funds are to be used for purposes which do not initially produce revenues adequate for regular amortization payments therefrom, the bank may permit the initial amortization payment to be deferred until such time as said revenues are sufficient for such 247

UP LAW BOC

BANKING LAWS

purpose. Exception to the special rule: In no case shall the initial amortization date be later than 5 years from the date on which the loan or other credit accommodation is granted. (2) In case of loans and other credit accommodations to microfinance sectors – The schedule of loan amortization shall take into consideration the projected cash flow of the borrower and adopt this into the terms and conditions formulated by banks. [Sec. 44, GBL]

MERCANTILE LAW

importance such that the appropriate standard of diligence must be very high, if not the highest degree of diligence. [Far East Bank and Trust Company v. Tentmakers, 2012] The degree of diligence required of banks is more than that of a good father of a family where the fiduciary nature of their relationship with their depositors is concerned. [PNB v. Tria, 2012] Banks assume a degree of diligence higher than that of a good father of a family. Its fiduciary duty imposes upon it a higher level of accountability than that expected of a depositor.[Philippine Banking Corporation vs. CA, G.R. No. 127469, January 15, 2004]

All are subject to such rules as the Monetary Board may promulgate. [Sec. 29, GBL]

E. DILIGENCE REQUIRED OF BANKS The banking industry is impressed with public interest. As such, the highest degree of diligence is expected, and high standards of integrity and performance are even required. Banks must treat depositors’ accounts with meticulous care and always to have in mind the fiduciary nature of its relationship with them. [Metrobank v. Rosales, 2014; Comsavings Bank v. Sps. Capistrano, 2013; Equitable Banking v. Special Steel Products, 2012]

The General Banking Law of 2000 requires of banks the highest standards of integrity and performance. The banking business is impressed with public interest. Of paramount importance is the trust and confidence of the public in general in the banking industry. Consequently, the diligence required of banks is more than that of a Roman pater familias or a good father of a family. The highest degree of diligence is expected. [Philippine Commercial Bank vs. Balmaceda, G.R. No. 158143, September 21, 2011]

The Rural Bank of Cabadbaran should not have simply relied on the face of SPAs since its undertaking to lend P200k as a banking institution requires a greater degree of diligence. [RBCI v. Melecio-Yap, 2014]

Notwithstanding the degree of diligence required, a bank is not expected to be infallible [Prudential Bank vs. CA, 2000].

The fiduciary nature of banking requires banks to assume a degree of diligence higher than that of a good father of a family. [People v. Go, 2014; Metrobank v. Centro Development, 2012]

FIDUCIARY DUTY (1) Failure on the part of the bank to satisfy the degree of diligence required of banks may warrant the award of damages. (2) Under Sec. 2, the degree of diligence is “high standards of integrity and performance” and no longer “highest degree of diligence” as was decided prior to the effectivity of the General Banking Law of 2000 but also [mistakenly] even thereafter.

Banks are required to observe a higher standard of diligence. [Land Bank v. Poblete, 2013] The banking business is so impressed with public interest where the trust and confidence of the public in general is of paramount 248

UP LAW BOC

BANKING LAWS

In numerous cases, the Supreme Court has held that the highest degree of diligence and care is expected from banks [Simex International v. CA [1990]; Philippine Bank of Commerce v. CA [1997]; Westmont Bank v. Ong [2002]; Solidbank v. Spouses Tan [2003]; Samsung Construction v. FEBTC [2004]; Citibank, N.A. v. Spouses Cabamongan [2006]; Philippine Savings Bank v. Chowking Food Corporation [2008]; Bank of America NT &SA v. Philippine Racing Club [2009].

MERCANTILE LAW

such as the failure to duly credit him his deposits as soon as they are made, can cause the depositor not a little embarrassment if not financial loss and perhaps even civil and criminal litigation [Simex International v. CA, 1990]. This fiduciary relationship means that the bank’s obligation to observe “high standards of integrity and performance” is deemed written into every deposit agreement between a bank and its depositor [Philippine Banking Corporation vs. CA, G.R. No. 127469, January 15, 2004].

The fiduciary nature of banking requires banks to assume a degree of diligence higher than that of a good father of a family. [People v. Go, 2014; Metrobank v. Centro Development, 2012]

Banks are expected to exercise the highest degree of diligence in the selection and supervision of their employees [PCI Bank v. CA, 2001].

The degree of diligence required of banks is more than that of a good father of a family where the fiduciary nature of their relationship with their depositors is concerned. [PNB v. Tria, 2012]

It cannot be over emphasized that the banking business is impressed with public interest. Of paramount importance is the trust and confidence of the public in general in the banking industry. Consequently, the diligence required of banks is more than that of a Roman pater familias or a good father of a family. The highest degree of diligence is expected [Phil. Savings Bank v. Chowking Food Corporation, 2008].

The law’s policy recognizes the fiduciary nature of banking. [Sps. Serfino v. FEBTC, 2012] As a business affected with public interest and because of the nature of its functions, the bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship.

The banking business is so impressed with public interest where the trust and confidence of the public in general is of paramount importance such that the appropriate standard of diligence must be a high degree of diligence, if not the utmost diligence [Bank of America NT&SA v. Phil. Racing Club, 2009].

In every case, the depositor expects the bank to treat his account with the utmost fidelity, whether such account consists only of a few hundred pesos or of millions. The bank must record every single transaction accurately, down to the last centavo, and as promptly as possible. This has to be done if the account is to reflect at any given time the amount of money the depositor can dispose as he sees fit, confident that the bank will deliver it as and to whomever he directs. A blunder on the part of the bank,

Under the doctrine of last clear chance, a bank may be held liable for loss despite the negligence of a depositor. Examples of these cases are the following:

249

UP LAW BOC

BANKING LAWS

(1) For disbursing funds to a dishonest employee despite the employee’s failure to strictly abide with the bank’s internal procedure. [PBC v. CA, 1997] (2) Allowing the execution of a mortgage on parcels of land as security for a loan not owned by the prospective borrower. [Canlas v. Court of Appeals, 2000] (3) Crediting the deposit in favor of another depositor, a check where the signature of the drawer was forged. [Westmont Bank v. Ong, 2002]

MERCANTILE LAW

Money deposited is commingled with other money constituting a common fund.

G. STIPULATION ON INTERESTS The Monetary Board may prescribe the maturities, as well as related terms and conditions for various types of bank loans and other credit accommodations. Any change by the Board in the maximum maturities shall apply only to loans and other credit accommodations made after the date of such action.

F. NATURE OF BANK FUNDS AND BANK DEPOSITS

The Monetary Board shall regulate the interest imposed on micro finance borrowers by lending investors and similar lenders such as, but not limited to, the unconscionable rates of interest collected on salary loans and similar credit accommodations [Sec. 43, GBL]

The relationship between a depositor and a bank is that of a creditor and debtor in relation to the bank’s deposit functions [Gullas vs. PNB, G.R. No. L-43191, November 13, 1935] and not that of depositor and depositary.

H. GRANT OF LOANS AND SECURITY REQUIREMENTS (PRUDENTIAL MEASURES)

The contract between the bank and its depositor is governed by the provisions of the NCC on simple loan [Consolidated Bank and Trust Corporation vs. CA, G.R. No. 138569, September 11, 2003].

H.1. RATIO OF NET WORTH TO TOTAL RISK ASSETS Concept: The minimum ratio which the net worth of a bank must bear to its total risk assets which may include contingent accounts [i.e. net worth: total risk assets] [Sec. 34, GBL]

Bank deposits are in the nature of irregular deposits [Serrano vs. Central Bank, G.R. No. L30511, February 14, 1980]. Therefore, Art. 1287 of the Civil Code, which prohibits compensation when one of the debts arises from depositum, does not apply.

General rule: A bank must conform to the riskbased capital ratio prescribed by the MB

Current and savings deposits are loans to a bank because the bank can use the same and they earn interest [BPI vs. CA, G.R. No. 104612, May 10, 1994].

Excpetions: The MB may alter or suspend compliance with such ratio whenever necessary for a maximum period of 1 year. (1) In case of a bank merger or consolidation; OR (2) When a bank is under rehabilitation under a program approved by the BSP; [Sec. 34]

The relationship being contractual in nature, mandamus is therefore not an available remedy since mandamus does not lie to enforce the performance of contractual obligations [Maclaring Lucman vs. Alimatar Malawi, G.R. No. 159794, December 19, 2006] 250

UP LAW BOC

BANKING LAWS

MERCANTILE LAW

I. PURPOSE

I. INCREASE OF LIMIT

A bank must not be allowed to expand the volume of its loans and investments in a manner that is disproportionate to its net worth. [Morales, The Philippine General Banking Law]

The Monetary Board may increase the limit prescribed by an additional 10% of the net worth, when: (1) The additional liabilities of any borrower are adequately secured by trust receipts, shipping documents, warehouse receipts or other similar documents transferring or securing title; (2) Covering readily marketable, nonperishable goods; and (3) Which must be fully covered by insurance [Sec. 35.2]

II. EFFECT OF NON-COMPLIANCE (1) The MB may limit or prohibit the distribution of net profits by such bank and may require that part or all of the net profits be used to increase the capital accounts of the bank until the minimum requirement has been met. (2) The MB may restrict or prohibit the acquisition of major assets and the making of new investments by the bank, with the exception of purchases of readily marketable evidences of indebtedness of the RP and the BSP and any other evidences of indebtedness or obligations the servicing and repayment of which are fully guaranteed by the RP, until the minimum required capital ratio has been restored. [Sec. 34, GBL]

II. PURPOSE To prevent the bank from making excessive loans and other credit accommodations to a single borrower or corporate group, including guarantees for the account of such borrower or group. The bank is prohibited from… placing many eggs in the basket of one client. [It] is a damage-control mechanism [and] a device for risk amelioration. [Morales, The Philippine General Banking Law]

H.2. SINGLE BORROWER’S LIMIT

III. BASIS COMPLIANCE

General rule: The total loans, credit accommodations and guarantees that may be extended by a bank to any person, partnership, association, or corporation or other entity shall at no time exceed 20% of the net worth of such bank. [Sec. 35.1, GBL]

FOR

DETERMINING

The basis for determining compliance with the SBL is the total credit commitment of the bank to the borrower. [Sec. 35.1, GBL]

IV. INCLUSIONS IN THE CEILING (1) The direct liability of the maker or acceptor of paper discounted with or sold to such bank and the liability of a general indorser, drawer or guarantor who obtains a loan or other credit accommodation from or discounts paper with or sells papers to such bank; (2) In the case of an individual who owns or controls a majority interest in a corporation, partnership, association or any other entity, the liabilities of said entities to such bank; (3) In the case of a corporation, all liabilities to such bank of all subsidiaries in which such

Exceptions: (1) The Monetary Board otherwise prescribes for reasons of national interest. [Sec. 35.1] Now, the single borrower’s limit is 25% of the net worth of the lending bank. (2) Wholesale lending activities of government banks to participating institutions for relending to end-user borrowers: separate limit of 35% net worth. [BSP Circular No. 425 dated March 25, 2004]

251

UP LAW BOC

BANKING LAWS

MERCANTILE LAW

VII. COMBINATION OF LIABILITIES

corporation owns or controls a majority interest; and (4) In the case of a partnership, association or other entity, the liabilities of the members thereof to such bank. [Sec. 35.3, GBL]

The MB may prescribe the combination of the liabilities of subsidiary corporations or members of the partnership, association, entity or such individual under certain circumstances, including but not limited to any of the following situations: (1) The parent-corporation, partnership, association, entity or individual guarantees the repayment of the liabilities; (2) The liabilities were incurred for the accommodation of the parent corporation or another subsidiary or of the partnership or association or entity or such individual; or (3) The subsidiaries though separate entities operate merely as departments or divisions of a single entity. [Sec. 35.4, GBL]

V. GUIDELINES ON THE WHOLESALE LENDING OF GOVERNMENT BANKS (1) It shall apply only to loans granted by participating financial institutions [PFIs] on a wholesale basis for on-lending to enduser borrowers; (2) It shall apply only to loan programs funded by multilateral, international, or local development agencies, organizations, or institutions, especially designed for wholesale lending activities of government banks; (3) The end-user borrowers of the PFIs shall be subject to the 25% SBL, not the increased ceiling of 35%; and (4) Government banks shall observe appropriate criteria for accrediting PFIs and for the grant/renewal of credit lines to accredited PFIs. [BSP Circular No. 425 dated March 25, 2004]

Loans and other credit accommodations, deposits maintained with, and usual guarantees by a bank to any other bank or non-bank entity, whether locally or abroad, shall be subject to the prescribed limits. [Sec. 35.6, GBL]

H.3. RESTRICTIONS ON BANK EXPOSURE TO DOSRI (DIRECTORS, OFFICERS, STOCKHOLDERS, AND THEIR RELATED INTERESTS)

VI. EXCLUSIONS FROM THE CEILING (NON-RISK LOANS)

General rule [Sec. 36, GBL]: No director or officer of any bank— (1) Shall, directly or indirectly, for himself or as the representative or agent of others, borrow from such bank, nor (2) Shall he become a guarantor, endorser or surety for loans from such bank to others, or in any manner be an obligor or incur any contractual liability to the bank

Loans and other credit accommodations— (1) Secured by obligations of the BSP or of the Philippine Government; (2) Fully guaranteed by the government as to the payment of principal and interest; (3) Covered by assignment of deposits maintained in the lending bank and held in the Philippines; (4) Under letters of credits to the extent covered by margin deposits; and (5) Specified by the Monetary Board as non-risk items [Sec. 35.5, GBL]

Exceptions [SEC. 36, GBL]: (1) Valid insider lending; (2) Loans, credit accommodations and guarantees extended by a cooperative bank to its cooperative shareholders.

252

UP LAW BOC

BANKING LAWS

I. REQUIREMENTS FOR VALID INSIDER LENDING

MERCANTILE LAW

H.4. LOAN-LOSS PROVISIONING The following are subject to regulation by the Monetary Board: (1) The amount of reserves for bad debts or doubtful accounts or other contingencies; and (2) The writing off of loans, other credit accommodations, advances and other assets. [Sec. 49, GBL]

(1) In the regular course of business; (2) Upon terms not less favorable to the bank than those offered to others; (3) There is a written approval of the majority of all the directors of the bank, excluding the director concerned. Exception: Not required where granted to officers under a fringe benefit plan approved by the BSP; (4) The required approval shall be entered upon the record of the bank and a copy of such entry shall be transmitted forthwith to the appropriate supervising and examining department of the BSP; (5) Limited to an amount equivalent to the DOSRI borrower’s unencumbered deposits and book value of his paid-in capital contribution in the bank [Sec. 36]

PURPOSE For effective banking supervision. There is a problem of mismatch when a loan becomes non-performing. The bank is paying interest on the money it borrowed from the depositors or other placers of funds, but is not recouping that interest from the loan it made. Eventually, the bank may have to write off loan losses against profits. To cushion this eventuality, the bank is required to set aside reserved for bad debts and other doubtful accounts or contingencies. [Morales, The Philippine General Banking Law]

II. EXCEPTIONS [Sec. 36, GBL]: (1) Non-risk items; and (2) Loans in the form of fringe benefits.

To address the non-performing asset problem, RA 9182 Special Purpose Vehicle Act was passed. The Monetary Board approved certain accounting guidelines on the sale by banks and other financial institutions for housing under the said Act. [Morales, The Philippine General Banking Law] [N.B. RA 9182 is no longer in effect.]

III. WAIVER OF BANK SECRECY A DOSRI borrower is required to waive the secrecy of his deposits of whatever nature in all banks in the Philippines. [Sec. 26, NCBA]

IV. PURPOSE

H.5. RESERVES I. PURPOSES

The general policy behind DOSRI rules is to level the lending field between the “insiders” and the “outsiders”. The objective is to prevent the bank from becoming a captive source of finance for DOSRI. [Morales, The Philippine General Banking Law]

(1) To control the volume of money created by the credit operations of the banking system, the BSP requires all banks to maintain reserves against their deposit and depositsubstitute liabilities. (2) As a ready source of funds that will respond to unusually large number of withdrawals or preterminations of deposits or depositsubstitutes, taking in the shape of a bank run. [Morales, The Philippine General Banking Law] 253

UP LAW BOC

BANKING LAWS

MERCANTILE LAW

II. UNIFIED RESERVE

III. COVERAGE

(1) Statutory or legal and liquidity reserve [N.B. The two reserves have been combined or unified: 18% for deposits and deposit substitutes] [BSP Circular No. 753 dated March 29, 2012] (a) For deposit-substitutes evidenced by repurchase agreements covering government securities: 2% [BSP Circular No. 444 dated August 18, 2004] (b) For foreign currency deposit units: 100% [BSP Circular No. 1389 dated April 13, 1993, as amended]; 30% of this cover must be in the form of liquid assets [BSP Circular-Letter dated June 6, 1997, as cited in Morales] (2) Reserve: The required reserves are to be kept in the form of deposits placed in the banks’ Demand Deposit Account with the BSP [BSP Circular No. 753 dated March 29, 2012]

PDIC only insures deposit [not deposit substitute] liabilities of a bank or banking institution [Sec. 5, RA 3591, as amended]

IV. PURPOSE Full insurance might encourage risky banking activities. A limited insurance of bank deposits serves to limit moral hazard.

H.7. EQUITY INVESTMENT LIMITS (ALLIED VS. NON-ALLIED) This is a prudential measure by limiting the exposure of banks in different businesses for the purpose of control, affiliation or other continuing business advantage. General Rule

Total investment in equities:

III. INTEREST ON RESERVES [Sec. 94, NCBA] General rule: The BSP shall not pay interest on the reserves maintained with it. Exception: Unless the Monetary Board decides otherwise as warranted by circumstances.

The equity investment in any one enterprise:

H.6. PDIC INSURANCE I. CONCEPT Banks are required to insure their deposit liabilities with the PDIC [Philippine Deposit Insurance Corporation].

UB [Sec. 24] [Allied & Non-Allied enterprises] Not exceeding 50% of the net worth of the bank [Allied/NonAllied] Not exceeding 25% of the net worth of the bank

KB [Sec. 30] [of Allied enterprises] Not exceeding 35% of the net worth of the bank [Allied] Not exceeding 25% of the net worth of the bank

Net Worth – The total of the unimpaired paid-in capital including paid-in surplus, retained earnings and undivided profit, net of valuation reserves and other adjustments. [Sec. 24, GBL]

II. PARTIAL INSURANCE Each depositor is a beneficiary of the insurance for a maximum amount of P500,000, or its foreign currency equivalent in the case of an FCDU deposit. [Act Amending PDIC Charter, 2009, RA 9576]

The acquisition of such equity is subject to the prior approval of the MB. [Sec. 24, GBL]

254

UP LAW BOC

BANKING LAWS

The equity investment of a Universal Bank in— (1) Financial Allied Enterprises – Up to 100% of the equity in a thrift bank, rural bank, or financial allied enterprise. A publicly-listed UB or KN may own up to 100% of the voting stock of only one other UB or KB. [Sec. 25, GBL] (2) Non-Financial Allied Enterprises – Up to 100% of the equity of that enterprise [Sec. 26, GBL] (3) Non-Allied Enterprises – Not exceeding 35% of the total equity in a single non-allied enterprise not shall it exceed 35% of the voting stock in that enterprise. This extends to investments by the UB’s wholly or majority-owned subsidiaries. [Sec 27 GBL] (4) Quasi-banks – 40% of the equity of quasibanks [Sec. 28, GBL]

MERCANTILE LAW

or permit any lawful examination into its affairs [Sec. 34, NCBA] (a) Fine: Not less than Fifty thousand pesos nor more than One hundred thousand pesos; or (b) Imprisonment: Not less than one year nor more than five years; or (c) Both fine and imprisonment: in the discretion of the Court. (2) Willful making of a false or misleading statement on a material fact to the Monetary Board or to the BSP examiners [Sec. 35, NCBA] (a) Fine: Not less than One hundred thousand pesos [P100,000] nor more than One hundred thousand pesos; or (b) Imprisonment: Not more than five years; or (c) Both fine and imprisonment, in the discretion of the Court.

The equity investment of Commercial Banks in— (1) Financial Allied enterprises – Up to 100% of the equity of a thrift or rural bank. [Sec 31 GBL]. Special rule: Where the equity investment of a KB is in other financial allied enterprises, including other KBs, such investment shall remain a minority holding in that enterprise. [Sec. 31, GBL] (2) Non-Financial Allied enterprises – Up to 100% of the equity of said enterprises. [Sec. 32, GBL] (3) Quasi-banks – 40% of the equity of quasibanks. [Sec. 28, GBL]

(3) Willful violation of the NCBA and other pertinent banking laws [including the GBL] being enforced or implemented by the BSP or any order, instruction, rule or regulation issued by the MB [Sec. 36, NCBA] (a) Fine: Not less than Fifty thousand pesos nor more than One hundred thousand pesos; or (b) Imprisonment: Not less than two years nor more than ten years; or (c) Both fine and imprisonment, in the discretion of the Court.

I. PENALTIES FOR VIOLATION I.1. GOVERNING LAWS

I.3. ADMINISTRATIVE SANCTIONS

Violation of any of the provisions of the GBL shall be subject to Sections 34, 35, 36 and 37 of the New Central Bank Act, unless otherwise provided under therein.

[Sec 37, NCBA] (1) Willful violation of its charter or by-laws; willful delay in the submission of reports or publications thereof as required by law, rules and regulations; Criminal Acts in Nos. 1 to 3 above; and/or conducting business in an unsafe or unsound manner as may be determined by the Monetary Board

I.2. CRIMINAL SANCTIONS (1) Refusal by an institution subject to examination and supervision by the Monetary Board to file the required report

255

UP LAW BOC

BANKING LAWS

MERCANTILE LAW

(a) Fine not exceeding Thirty thousand pesos a day for each violation, taking into consideration the attendant circumstances, such as the nature and gravity of the violation or irregularity and the size of the bank or quasi-bank; or (b) Suspension of rediscounting privileges or access to BSP credit facilities; (c) Suspension of lending or foreign exchange operations or authority to accept new deposits or make new investments; (d) Suspension of interbank clearing privileges; and/or (e) Revocation of quasi-banking license.

IV. Philippine Deposit Insurance Corporation Act

(2) Suspension or Removal of Director (a) If the offender is a director or officer of a bank, quasi-bank or trust entity, the MB may also suspend or remove such director or officer. [Sec. 66, GBL] (b) Resignation or termination from office shall not exempt such director or officer from administrative or criminal sanctions. [Sec. 37, NCBA]

(1) To adopt and use a corporate seal (2) To have succession until dissolved by Act of Congress (3) To make contracts (4) To sue and be sued; no attachment or execution shall be issued against it before final judgment (5) To appoint officers and employees not provided in this Act, define their duties, fix their compensation, dismiss them (6) Prescribe by-laws regulating the manner in which their general business may be conducted (7) To exercise express and incidental powers (8) To conduct examination of banks with prior approval of the MB (9) To act as receiver (10) To prescribe rules and regulations (11) To establish its own provident fund which shall consist of contributions made both by PDIC and by its officers and employees to a common fund for the payment of benefits to such officers or employees or their heirs (12) To compromise, condone or release, in whole or in part, any claim or settled liability to PDIC [Sec. 8, Amended PDIC Charter]

[R.A. 3951, as amended]

A. PURPOSE OF THE PDIC (1) To insure the deposits of all banks which are entitled to the benefits of insurance under this Act (2) To promote and safeguard the interests of the depositing public by way of providing permanent and continuing insurance coverage on all insured deposits [Sec. 1, Amended PDIC Charter]

B. POWERS OF THE PDIC

(3) Dissolution of Bank (a) If the violation is committed by a corporation, such corporation may be dissolved by quo warranto proceedings instituted by the Solicitor General [Sec. 66, GBL] (b) Whenever a bank or quasi-bank persists in carrying on its business in an unlawful or unsafe manner, the Monetary Board may commence proceedings in liquidation. [Sec. 36, NCBA in relation to Sec. 30, NCBA]

256

UP LAW BOC

BANKING LAWS

MERCANTILE LAW

C. FUNCTIONS OF THE PDIC

C.1. EXCLUSIONS

Insurance The deposit liabilities of any bank or banking institution, which is engaged in the business of receiving deposits on the effective date of this Act, or which thereafter may engage in the business of receiving deposits, shall be insured with the PDIC [Sec. 5, Amended PDIC Charter]

The PDIC shall not pay deposit insurance for the following accounts or transactions, whether denominated, documented, recorded or booked as deposit by the bank: (1) Investment products such as bonds and securities, trust accounts, and other similar instruments; (2) Unfunded, fictitious or fraudulent deposit accounts or transactions; (3) Deposits accounts or transactions constituting, and/or emanating from, unsafe and unsound banking practice/s, as determined by the PDIC, in consultation with the BSP, after due notice and hearing, and publication of a cease and desist order issued by the PDIC against such deposit accounts or transactions; and (4) Deposits that are determined to be the proceeds of an unlawful activity as defined under Republic Act 9160, as amended [Sec. 4(f), Amended PDIC Charter]

Relevant Definitions Bank and banking institution – shall include banks, commercial banks, savings bank, mortgage banks, rural banks, development banks, cooperative banks, stock savings and loan associations and branches and agencies in the Philippines of foreign banks and all other corporations authorized to perform banking functions in the Philippines [Sec. 4(b), Amended PDIC Charter] Deposit – means the unpaid balance of money or its equivalent received by a bank in the usual course of business and for which it has given or is obliged to give credit to a commercial, checking, savings, time or thrift account, or issued in accordance with BSP rules and regulations and other applicable laws, together with such other obligations of a bank, which, consistent with banking usage and practices, the Board of Directors shall determine and prescribe by regulations to be deposit liabilities of the bank. Exclusion: Any obligation of a bank which is payable at the office of the bank located outside of the Philippines. [Sec. 4[f], Amended PDIC Charter]

C.2. EXTENT OF LIABILITY The liability of the Corporation is to the extent of the insured deposit. [Sec. 14, Amended PDIC Charter]

C.3. FORM OF PAYMENT Whenever an insured bank shall have been closed by the Monetary Board pursuant to Section 30 of R.A. 7653, payment of the insured deposits on such closed bank shall be made by the PDIC as soon as possible either [1] by cash or [2] by making available to each depositor a transferred deposit in another insured bank in an amount equal to insured deposit of such depositor. [Sec. 14, Amended PDIC Charter]

Insured deposit – means the amount due to any bona fide depositor for legitimate deposits in an insured bank net of any obligation of the depositor to the insured bank as of the date of closure, but not to exceed P500,000 or its equivalent in foreign currency [Sec. 4[g], Amended PDIC Charter]

C.4. LIMITATION OF LIABILITY Insured deposit shall not exceed P500,000. [Sec. 4(g), Amended PDIC Charter]

257

UP LAW BOC

C.5. DETERMINATION DEPOSITS

BANKING LAWS

OF

INSURED

MERCANTILE LAW

C.8. IF THE ACCOUNT IS HELD BY TWO OR MORE NATURAL PERSONS OR TWO OR MORE JURIDICAL PERSONS

The determination of insured deposits shall commence upon the PDIC’s actual takeover of the closed bank. [Sec. 16(a), Amended PDIC Charter]

General rule: The maximum insured deposit shall be divided into as many equal shares as there are individuals or juridical persons. [Sec. 4(g), Amended PDIC Charter]

The amount of the insured deposit shall be determined according to such regulations as the Board of Directors may prescribe, In determining such amount due to any depositor, there shall be added together all deposits in the bank maintained in the same right and capacity for his benefits either in his own name or in the name of others. [Sec. 4(g), Amended PDIC Charter]

Exception: Unless a different sharing is stipulated in the document of deposit. [Sec. 4(g), Amended PDIC Charter]

C.9. IF THE ACCOUNT IS HELD BY A JURIDICAL PERSON OR ENTITY JOINTLY WITH ONE OR MORE NATURAL PERSONS The maximum insured deposits shall be presumed to belong entirely to such juridical person or entity. [Sec. 4(g), Amended PDIC Charter]

Note: The PDIC may require proof of claims to be filed before paying the insured deposits, and that in any case where the PDIC is not satisfied as to the viability of a claim for an insured deposit, it may require final determination of a court of competent jurisdiction before paying such claim. [Sec. 14, Amended PDIC Charter]

Note: The aggregate of the interest of each coowner over several joint accounts, whether owned by the same or different combinations of individuals, juridical persons or entities, shall likewise be subject to the maximum insured deposit of P500,000. [Sec. 4(g), Amended PDIC Charter]

C.6. PER DEPOSITOR, PER CAPACITY RULE In determining the amount due to any depositor, there shall be added together all deposits in the bank maintained in the same right and capacity for his benefits either in his own name or in the name of others [Sec. 4(g), Amended PDIC Charter]

C.10.MODE OF PAYMENT Payment of the insured deposits on such closed bank shall be made by the PDIC as soon as possible either: (1) by cash; (2) by making available to each depositor a transferred deposit in another insured bank in an amount equal to insured deposit of such depositor [Sec. 14, Amended PDIC Charter]

C.7. JOINT ACCOUNTS A joint account regardless of whether the conjunction 'and,' 'or,' 'and/or' is used, shall be insured separately from any individually-owned deposit account [Sec. 4(g), Amended PDIC Charter]

Note: ‘Transfer Deposit’ means a deposit in an insured bank made available to a depositor by the PDIC as payment of insured deposit of such depositor in a closed bank and assumed by another insured bank [Sec. 4(h), Amended PDIC Charter]. 258

UP LAW BOC

BANKING LAWS

C.11. EFFECT OF PAYMENT

MERCANTILE LAW

(1) If he fails to claim the insured deposits within two years from actual takeover of the closed bank by the receiver; or (2) If he does not enforce his claim filed with the corporation within two years after the two-year period to file a claim.

(1) The PDIC shall be discharged from liability to the depositor [Sec. 16[b], Amended PDIC Charter] (2) The PDIC, upon payment of any depositor as provided for in Section 14 shall be subrogated to all rights of the depositor against the closed bank to the extent of such payment [Sec. 15, Amended PDIC Charter] (3) Payments by the PDIC of insured deposits in closed banks partake of the nature of public funds, and as such, must be considered a preferred credit similar to taxes due to the National Government in the order of preference under Article 2244 of the New Civil Code [Sec. 15, Amended PDIC Charter]

Exception: Waiver by PDIC. But all rights of the depositor against the closed bank and its shareholders or the receivership estate to which the PDIC may have become subrogated, shall thereupon revert to the depositor.

D. BANK EXAMINATION The PDIC may examine an insured bank with prior approval of the MB if, in its opinion, such bank or its directors or agents have violated, are violating or about to violate any provision of the PDIC Act or any order, rule or instruction issued by the PDIC or any written condition imposed by the PDIC in connection with any transaction with or grant by it. [Sec. 8 in relation to Sec. 7, Amended PDIC Charter]

C.12. FAILURE TO SETTLE CLAIM OF INSURED DEPOSITOR General rule: Failure to settle the claim within six months from the date of filing of claim for insured deposit shall, upon conviction, subject the directors, officers or employees of the PDIC responsible for the delay to imprisonment from six months to one year.

E. FINANCIAL ASSISTANCE Requisite: The failure was due to the grave abuse of discretion, gross negligence, bad faith, or malice of the directors, officers or employees.

The PDIC may grant financial assistance to distressed banks if it is proven to be a less costly alternative than closure. [Sec. 17(d), Amended PDIC Charter]

Exception: The validity of the claim requires the resolution of issues of facts and or law by another office, body or agency including the case mentioned in the first proviso or by PDIC together with such other office, body or agency.

F. RECEIVERSHIP OF CLOSED BANKS [See HOW THE BSP HANDLES BANKS IN DISTRESS]

G. LIQUIDATION OF CLOSED BANKS

C.13. FAILURE OF DEPOSITOR TO CLAIM INSURED DEPOSITS

[See HOW THE BSP HANDLES BANKS IN DISTRESS]

[Sec. 16(e), Amended PDIC Charter] General rule: All rights of the depositor against the PDIC with respect to the insured deposit shall be barred:

259

UP LAW BOC

BANKING LAWS

V. Foreign Currency Deposit Act

MERCANTILE LAW

(4) Disclosure of the Treasurer of the Philippines when the unclaimed balances law applies [Act 3936, as amended by PD 679] (5) BSP/PDIC inquiry if there is a finding of unsafe and unsound banking practice (as in the case of peso deposits, supra) (6) In Salvacion vs. CB [1997], where a Filipino child was raped by a foreigner, the SC allowed, pro hac vice, garnishment of foreign currency deposits stating: If we rule that the questioned Section 113 of CB Circular No. 960 which exempts from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever, is applicable to a foreign transient, injustice would result especially to a citizen aggrieved by a foreign guest.

[RA 6426]

A. CONCEPT The FCDA allows any person to deposit, and banks to accept deposit, any foreign currency acceptable as part of the Philippines’ international reserve. [Secs. 2 & 3, FCDA]

B. SECRECY OF FOREIGN CURRENCY DEPOSITS B.1. INQUIRY General rule: All foreign currency deposits are declared as and considered of an absolutely confidential nature and shall not be examined, inquired or looked into by any person, government official, bureau or office, whether judicial or administrative, or legislative or any other entity whether public or private. [Sec. 8, FCDA]

PRIVILEGES (1) Tax exemption – the FCD, including interests and all other income or earnings of such deposits, are exempt from any and all taxes whatsoever if these deposits are made by non-residents and irrespective of whether or not the non-residents are engaged in trade or business in the Philippines [Sec. 6 as amended]. Interests on FCDs of residents are subject to 7.5% withholding tax. [NIRC] (2) Exemption from attachment, garnishment or any other order or process of any court, legislative or administrative body, or government agency whatsoever [Sec. 8, FCDA]

Exception: Upon the written permission of the depositor. [Sec. 8, FCDA]

B.2. COURT PROCESS General rule: The foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. [Sec. 8, FCDA] Exceptions: (1) Upon written permission of the depositor [Sec. 8; Intengan vs CA, 2002] (2) Upon order of a competent court in cases of violation of the Anti-Money Laundering Act of 2001 (as in the case of peso deposits, supra) (3) During BSP’s periodic or special examinations (as in the case of peso deposits, supra),

Exception: The CA, upon application ex parte by the AMLC and after determination that a probable cause exists that any monetary instrument or property is in any way related to an “unlawful activity”, the AMLC, may freeze the account. [Sec. 10, AMLA]

260

UP LAW BOC

INTELLECTUAL PROPERTY CODE

MERCANTILE LAW

MERCANTILE LAW

INTELLECTUAL PROPERTY LAW

261

UP LAW BOC


MERCANTILE LAW

I. Intellectual Property Rights in General

(7) Patent Cooperation Treaty (August 17, 2001) (8) Madrid Protocol

A. STATE POLICIES

C. INTELLECTUAL RIGHTS

(1) To protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act. (2) To promote the diffusion of knowledge and information for the promotion of national development and progress and the common good. (3) To streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines. [Sec. 2, RA 8293]

PROPERTY

C.1. DEFINITION Those property rights which result from the physical manifestation of original thought. [Ballantine’s Law Dictionary] Note: There are no property rights protected by law in mere ideas or mental conceptions. When creations of mind are put in tangible form, there is appropriate subject of property that is protected by law. [63A Am Jur 3rd Property, Section 5]

C.2. INTELLECTUAL PROPERTY RIGHTS UNDER THE INTELLECTUAL PROPERTY CODE

B. INTERNATIONAL CONVENTIONS GOVERNING INTELLECTUAL PROPERTY RIGHTS

(1) (2) (3) (4) (5) (6) (7)

Copyright; Related Rights of copyright; Trademarks and Service Marks; Geographic Indications; Industrial Designs; Patents; Layout-Designs (Topographies) of Integrated Circuits; [Sec. 4, RA 8293] (8) Protection of Undisclosed Information (TRIPS Agreement).

(1) Berne Convention for the Protection of Literary and Artistic Works as revised by the Brussels Act (August 1, 1951) (2) Paris Convention for the Protection of Industrial Property Rights (September 27, 1965) (3) International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention, September 25, 2984) (4) Convention Establishing the World Intellectual Property Organization (July 14, 1980) (5) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (October 21, 1981) (6) Agreement on Trade Related Aspects of Intellectual Property Including Trade in Counterfeit Goods of General Agreement on Tariffs and Trade.

D. DIFFERENCES BETWEEN COPYRIGHTS, TRADEMARKS AND PATENT D.1. PATENTABLE INVENTIONS Refer to any technical solution of a problem in any field of human activity, which is new, involves an inventive step and is industrially applicable. It may be, or refer to, any product, process, or an improvement of any of the foregoing. [Sec. 21, RA 8293] It is vested from the issuance of letters of patent.

262

UP LAW BOC


D.2. TRADEMARK

MERCANTILE LAW

of the original or the copy which is the subject of the rental. (5) Public Display of the original or a copy of the work. (6) Public Performance of the Work; (7) Other Communication to the public of the work. [Sec. 177, IPC]

Any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods. [Kho v. CA, et al. (2002)] It is vested from registration.

D.3. TRADE NAME

Copyright is confined to literary and artistic works which are original intellectual creations in the literary and artistic domain protected from the moment of their creation. [Kho v. CA, et al. (2002)] It is vested from the moment of creation.

The name or designation identifying or distinguishing an enterprise [Sec. 121.3, RA 8293]

D.4. COPYRIGHT Right granted by statute to the author or originator of literary, scholarly, scientific, or artistic productions, including computer programs. A copyright gives him the legal right to determine how the work is used and to obtain economic benefits from the work. For example, the owner of a copyright for a book or a piece of software has the exclusive rights to use, copy, distribute, and sell copies of the work, including later editions or versions of the work. If another person improperly uses material covered by a copyright, the copyright owner can obtain legal relief. [Rule 2, Copyright Safeguards and Regulations]

D.5. OTHER FORMS OF INTELLECTUAL PROPERTY i. Geographic Indication One which identifies a good as originating in the territory of a TRIPS member, or a region or locality in that territory where a given quality, reputation or other characteristic of a good is essentially attributable to its geographical origin [Art. 22, TRIPS Agreement] ii. Industrial Design Any composition of lines or colors or any threedimensional form, whether or not associated with lines or colors: Provided, that such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft. (Sec. 112.1, RA 8293)

Copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts: (1) Reproduction of the work or substantial portion of the work (2) Dramatization, translation or adaptation, abridgment, arrangement or other transformation of the work. (3) The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership. (4) Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership

iii. Layout Design (Topography) of an Integrated Circuit Layout Design (Topography) — The threedimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture. (Sec. 112.3, RA 8293)

263

UP LAW BOC


II. Patents

iv. Integrated Circuit —a product, in its final form, or an intermediate form, in which the elements, at least one of which is an active element and some or all of the interconnections are integrally formed and/or on a piece of material, and which is intended to perform an electronic function. (Sec. 112.2, RA 8293)

A. PATENTABLE INVENTIONS A patentable invention is any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be Patentable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing. [Sec. 21, RA 8293]

v. Undisclosed Information Information which: (1) Is a secret in a sense that it is not, as a body or in the precise configuration and assembly of components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (2) Has a commercial value because it is secret; and (3) Has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret [Art. 39, TRIPS]

E. TECHNOLOGY ARRANGEMENTS

MERCANTILE LAW

A.1. INVENTION PATENT i. Standards Novelty — An invention shall not be considered new if it forms part of a prior art. [Sec. 23, RA 8293] Prior art shall consist of: (1) Everything which has been made available to the public anywhere in the world, before the filing date or the priority date of the application claiming the invention; [Sec. 24.1, RA 8293] (2) The whole contents of an application for a patent, utility model, or industrial design registration, published in accordance with this Act, filed or effective in the Philippines, with a filing or priority date that is earlier than the filing or priority date of the application: Provided, That the application which has validly claimed the filing date of an earlier application under Section 31 of this Act, shall be prior art with effect as of the filing date of such earlier application: Provided further, That the applicant or the inventor identified in both applications are not one and the same. [Sec. 24.2, RA 8293]

TRANSFER

Refers to contracts or agreements involving: (1) the transfer of systematic knowledge for the manufacture of a product; (2) the application of a process, or rendering of a service including management contracts; (3) The transfer, assignment or licensing of all forms of intellectual property rights, including licensing of computer software except computer software developed for mass market. [Sec. 4.2, RA 8293]

Non-Prejudicial Disclosures –This is an exception to the General Rule on Prior Art under Sec. 24. It provides that the disclosure of the information contained in the application during the 12 months preceding the filing date or the priority date of the application shall not prejudice the applicant on the ground of lack of novelty if such disclosure was made by: (1) The inventor 264

UP LAW BOC


(2) A patent office and the information contained (1) in another application filed by the inventor and should not have been disclosed by the office, or (2) in an application filed without the knowledge or consent of the inventor by a third party which obtained the information directly or indirectly from the inventor (3) A third party which obtained the information directly or indirectly from the inventor [Sec. 25, RA 8293]

MERCANTILE LAW

The law merely requires that it be novel and industrially applicable. [Sec. 109.1, RA 8293] A utility model registration shall expire, without any possibility of renewal, at the end of the seventh year after the date of the filing of the application. [Sec. 109.3, RA 8293] Statutory Classes of Utility Models A Utility Model may be, or may relate to: (1) A useful machine; (2) An implement or tool; (3) A product or composition; (4) A method or process; or (5) An improvement of any of the foregoing. [Rule 201, Rules and Regulations on Utility Models and Industrial Designs as amended]

(a) Inventive Step — An invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date of the application claiming the invention. [Sec. 26.1, RA 8293, as amended by RA 9502]

Grounds for Cancellation of Utility Models (1) That the claimed invention does not qualify for registration as a utility model and does not meet the requirements of registrability; (2) That the description and the claims do not comply with the prescribed requirements; (3) That any drawing which is necessary for the understanding of the invention has not been furnished; (4) That the owner of the utility model registration is not the inventor or his successor in title [Sec 109.4, RA 8293]

Cheaper Medicines Act – In case of drugs and medicines, there is no inventive step if the invention results from the mere discovery of a new form or new property of a known substance which does not result in enhancement of the known efficacy of that substance, or the mere discovery of any new property or new use of a known substance or the mere use of a known process unless such known process results in a new product that employs at least one reactant. [Sec. 26.2, RA 8293 as amended by RA 9502]

Industrial Design An industrial design is any composition of lines or colors or any three-dimensional form, whether or not associated with lines or colors: Provided that such composition or form gives a special appearance to and can serve as pattern for an industrial product or handicraft. [Sec. 112.1, RA 8293 as amended by RA 9150]

(b) Industrial Applicability —An invention that can be produced and used in any industry shall be industrially applicable. [Sec. 27, RA 8293]

Lay-out Designs (Topographies) of Integrated Circuits Integrated Circuitmeans a product, in its final form, or an intermediate form, in which the elements, at least one of which is an active element and some or all of the interconnections are integrally formed in

ii. Utility It is any technical solution of a problem in any field of human activity which is new and industrially applicable. Unlike an invention patent, a utility model need not be inventive. 265

UP LAW BOC


and/or on a piece of material, and which is intended to perform an electronic function. [Sec. 112.2, RA 8293 as amended by RA 9150]

MERCANTILE LAW

not apply to products and composition for use in any of these methods; [Sec. 22.3, RA 8293] (4) Plant varieties or animal breeds or essentially biological process for the production of plants or animals. This provision shall not apply to microorganisms and non-biological and microbiological processes; [Sec. 22.4, RA 8293] (5) Aesthetic creations; [Sec. 22.5, RA 8293] (6) Anything which is contrary to public order or morality. [Sec. 22.6, RA 8293]

Layout-Design is synonymous with 'Topography' and means the threedimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture. [Sec. 112.3, RA 8293 as amended by RA 9150]

Cheaper Medicines Act: In addition to discoveries, scientific theories and mathematical methods, the IP Code now includes, in case of drugs and medicines: (1) The mere discovery of a new form or new property of a known substance which does not result in the enhancement of the known efficacy of that substance (2) the mere discovery of any new property or new use of a known substance (3) the mere use of a known process unless such known process results in a new product that employs at least one reactant (Sec. 26.2, RA 8293 as amended by RA 9502)

B. NON-PATENTABLE INVENTIONS The following shall be excluded from patent protection: (1) Discoveries, scientific theories and mathematical methods, and in the case of drugs and medicines, the mere discovery of a new form or new property of a known substance which does not result in the enhancement of the known efficacy of that substance, or the mere discovery of any new property or new use for a known substance, or the mere use of a known process unless such known process results in a new product that employs at least one new reactant. Salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations, and other derivatives of a known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy; [Sec. 22.1, RA 8293 as amended by RA 9502]

C. OWNERSHIP OF A PATENT C.1. RIGHT TO A PATENT General Rule: The right to patent belongs to the inventor, his heirs, or assigns. When two (2) or more persons have jointly made an invention, the right to a patent shall belong to them jointly. (Sec.28, RA 8293)

(2) Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers; [Sec. 22.2, RA 8293] (3) Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. This provision shall

Exception: Inventions created pursuant to a commission (Work for Hire Doctrine) (1) The employer has the right to the patent if the invention is the result of the performance of the employee’s regularly assigned duties [Sec. 30.2, RA 8293] (2) In case of inventions created pursuant to a commission, the person who commissions 266

UP LAW BOC


the work shall own the patent [Sec. 30.1, RA 8293]

MERCANTILE LAW

D. GROUNDS FOR CANCELLATION OF A PATENT Any interested person may, upon payment of the required fee, petition to cancel the patent or any claim thereof, or parts of the claim, on any of the following grounds: (1) That what is claimed as the invention is not new or patentable; (2) That the patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by any person skilled in the art; or (3) That the patent is contrary to public order or morality. [Sec. 61.1, RA 8293]

C.2. FIRST-TO-FILE RULE If two (2) or more persons have made the invention separately and independently of each other, the right to the patent shall belong to the person who filed an application for such invention, or where two or more applications are filed for the same invention, to the applicant who has the earliest filing date or, the earliest priority date. [Sec. 29, RA 8293]

C.3. INVENTIONS CREATED PURSUANT TO A COMMISSION Commission: Person who commissions the work shall own the patent, unless otherwise provided in the contract [Sec. 30.1, RA 8293)

Where the grounds for cancellation relate to some of the claims or parts of the claim, cancellation may be effected to such extent only. [Sec. 61.2, RA 8293]

Employment Contract: Patent belongs to the employee if the inventive activity is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer. [Sec. 30.2 (a), RA 8293]

D.1. REQUIREMENT OF THE PETITION The petition for cancellation shall be in writing, verified by the petitioner or by any person in his behalf who knows the facts, specify the grounds upon which it is based, include a statement of the facts to be relied upon, and filed with the Office. Copies of printed publications or of patents of other countries, and other supporting documents mentioned in the petition shall be attached thereto, together with the translation thereof in English, if not in English language. [Sec. 62, RA 8293]

Patent belongs to the employer if the invention is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary. [Sec. 30.2 (b), RA 8293]

C.4. RIGHT OF PRIORITY An application for patent filed by any person who has previously applied for the same invention in another country which by treaty, convention, or law affords similar privileges to Filipino citizens, shall be considered as filed as of the date of filing the foreign application: Provided, That: (a) the local application expressly claims priority; (b) it is filed within twelve (12) months from the date the earliest foreign application was filed; and (c) a certified copy of the foreign application together with an English translation is filed within six (6) months from the date of filing in the Philippines. [Sec. 31, RA 8293]

D.2. NOTICE OF HEARING Upon filing of a petition for cancellation, the Director of Legal Affairs shall forthwith serve notice of the filing thereof upon the patentee and all persons having grants or licenses, or any other right, title or interest in and to the patent and the invention covered thereby, as appears of record in the Office, and of notice of the date of hearing thereon on such persons and the petitioner. Notice of the filing of the petition shall be published in the IPO Gazette. [Sec. 63, RA 8293]

267

UP LAW BOC


D.3. EFFECT OF CANCELLATION OF PATENT OR CLAIM

MERCANTILE LAW

(1) Where the subject matter of a patent is a product, to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product. [Sec. 71.1(a), RA 8293] (2) Where the subject matter of a patent is a process, to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process. [Sec. 71.1(b), RA 8293] (3) Patent owners shall also have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same. [Sec. 71.2, RA 8293]

The rights conferred by the patent or any specified claim or claims cancelled shall terminate. Notice of the cancellation shall be published in the IPO Gazette. Unless restrained by the Director General, the decision or order to cancel by Director of Legal Affairs shall be immediately executory even pending appeal. [Sec. 66, RA 8293]

E. REMEDY OF THE TRUE AND ACTUAL INVENTOR If a person, who was deprived of the patent without his consent or through fraud is declared by final court order or decision to be the true and actual inventor, the court shall order for his substitution as patentee, or at the option of the true inventor, cancel the patent, and award actual and other damages in his favor if warranted by the circumstances. [Sec. 68, RA 8293]

Pearl Dean, Inc. v. Shoemart, Inc. (2003)To be able to effectively and legally preclude others from copying and profiting from the invention, a patent is a primordial requirement. No patent, no protection. The ultimate goal of a patent system is to bring new designs and technologies into the public domain through disclosure Ideas, once disclosed to the public without the protection of a valid patent, are subject to appropriation without significant restraint.

E.1. TIME TO FILE ACTION IN COURT The action shall be filed within one (1) year from the date of publication made in accordance with Sections 44 and 51, respectively. (Sec. 70, RA 8293)

E.2. REMEDY OF PERSONS NOT HAVING THE RIGHT TO A PATENT If a person other than the applicant, is declared by final court order or decision as having the right to the patent, such person may, within three (3) months after the decision has become final: (1) Prosecute the application as his own application in place of the applicant; (2) File a new patent application in respect of the same invention; (3) Request that the application be refused; or (4) Seek cancellation of the patent, if one has already been issued. [Sec. 67, RA 8293]

G. LIMITATIONS OF PATENT RIGHTS The owner of a patent has no right to prevent third parties from performing, without his authorization, the acts referred to in Section 71 hereof in the following circumstances: (1) Using a patented product which has been put on the market in the Philippines by the owner of the product, or with his express consent, insofar as such use is performed after that product has been so put on the said market: Provided, That, with regard to drugs and medicines, the limitation on patent rights shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world

F. RIGHTS CONFERRED BY A PATENT A patent shall confer on its owner the following exclusive rights: 268

UP LAW BOC


by the patent owner, or by any party authorized to use the invention: Provided, further, That the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party; [Sec. 72.1, RA 8293 as amended by RA 9502]

MERCANTILE LAW

enactment of this law; (Sec. 72.4, RA 8293 as amended by RA 9502) (5) Where the act consists of the preparation for individual cases, in a pharmacy or by a medical professional, of a medicine in accordance with a medical shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention: Provided, further, That the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party; (Sec. 72.5, RA 8293 as amended by RA 9502)

(2) Where the act is done privately and on a non-commercial scale or for a noncommercial purpose: Provided, That it does not significantly prejudice the economic interests of the owner of the patent; [Sec. 72.2, RA 8293 as amended by RA 9502] (3) Where the act consists of making or using exclusively for experimental use of the invention for scientific purposes or educational purposes and such other activities directly related to such scientific or educational experimental use; [Sec. 72.3, RA 8293 as amended by RA 9502]

There shall be no infringement of trademarks or tradenames of imported or sold drugs and medicines allowed as well as imported or sold off-patent drugs and medicines: Provided, That said drugs and medicines bear the registered marks that have not been tampered, unlawfully modified, or infringed. (Sec.159.4 RA 8293 as amended by RA 9502)

(4) In the case of drugs and medicines, where the act includes testing, using, making or selling the invention including any data related thereto, solely for purposes reasonably related to the development and submission of information and issuance of approvals by government regulatory agencies required under any law of the Philippines or of another country that regulates the manufacture, construction, use or sale of any product: Provided, That, in order to protect the data submitted by the original patent holder from unfair commercial use provided in Article 39.3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the Intellectual Property Office, in consultation with the appropriate government agencies, shall issue the appropriate rules and regulations necessary therein not later than one hundred twenty (120) days after the

G.1. PRIOR USER Notwithstanding Section 72 hereof, any prior user, who, in good faith was using the invention or has undertaken serious preparations to use the invention in his enterprise or business, before the filing date or priority date of the application on which a patent is granted, shall have the right to continue the use thereof as envisaged in such preparations within the territory where the patent produces its effect. [Sec. 73.1, RA 8293] The right of the prior user may only be transferred or assigned together with his enterprise or business, or with that part of his enterprise or business in which the use or preparations for use have been made. [Sec. 73.2, RA 8293]

269

UP LAW BOC


G.2. USE BY THE GOVERNMENT

MERCANTILE LAW

infringing and not suitable for substantial noninfringing. He is jointly and severally liable with the infringer. [Sec. 76.6, RA 8293]

A Government agency or third person authorized by the Government may exploit the invention even without agreement of the patent owner where: (1) The public interest, in particular, national security, nutrition, health or the development of other sectors, as determined by the appropriate agency of the government, so requires; [Sec. 74.1(a), RA 8293] (2) A judicial or administrative body has determined that the manner of exploitation, by the owner of the patent or his licensee, is anti-competitive. [Sec. 74.1(b), RA 8293]

H.2. DOCTRINE EXHAUSTION

OF

PATENT

It espouses that the patentee who has already sold his invention and has received all the royalty and consideration for the same will be deemed to have released the invention from his monopoly. The invention thus becomes open to use of the purchaser without further restriction. [Adams v. Burke,in Notes on Selected Commercial Laws, Catindig 2003 ed.]

H.3. TESTS IN PATENT INFRINGEMENT i. Literal infringement In using literal infringement as a test, resort must be had in the first instance to the words of the claim. To determine whether the particular item falls within the literal meaning of the patent claims, the court must juxtapose the claims of the patent and the accused product within the overall context of the claims and specifications, to determine whether there is exact identity of all material elements. [Godinez v. CA (1993)]

The use by the Government, or third person authorized by the Government shall be subject, mutatis mutandis, to the conditions set forth in Sections 95 to 97 and 100 to 102 on compulsory licensing. [Sec. 74.2, RA 8293] All cases arising from the implementation of this provision shall be cognizable by courts with appropriate jurisdiction provided by law. No court except the Supreme Court of the Philippines, shall issue any temporary restraining order or preliminary injunction or such other provisional remedies that will prevent its immediate execution. [Sec. 74.3, RA 8293 as amended by RA 9502]

ii. Doctrine of equivalents Under the doctrine of equivalents, an infringement also occurs when a device appropriates a prior invention by incorporating its innovative concept and, albeit with some modification and change, performs substantially the same function in substantially the same way to achieve substantially the same result. [Godinez v. CA (1993)]

H. PATENT INFRINGEMENT It is the making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization of the patentee. [Sec 76.1, RA 8293 as amended by RA 9502]

In order to infringe a patent, a machine or device must perform the same function, or accomplish the same result by identical or substantially identical means and the principle or mode of operation must be substantially the same. [Del Rosario v. CA (1996)]

H.1. CONTRIBUTORY INFRINGER One who actively induces the infringement of a patent or provides the infringer with a component of a patented product or of a product produced because of a patented process knowing it to be especially adopted for 270

UP LAW BOC


The doctrine of equivalents provides that an infringement also takes place when a device appropriates a prior invention by incorporating its innovative concept and, although with some modification and change, performs substantially the same function in substantially the same way to achieve substantially the same result. The principle or mode of operation must be the same or substantially the same. The doctrine of equivalents thus requires satisfaction of the function-means-and-result test, the patentee having the burden to show that all three components of such equivalency test are met. [Smith Klein Beckman Corp. v. CA (2003)]

H.4. DEFENSES INFRINGEMENT

IN

ACTION

MERCANTILE LAW

I. LICENSING I.1. VOLUNTARY Voluntary Licensing is the grant by the patent owner to a third person of the right to exploit the patented invention. [Sec. 85, RA 8293] i. Mandatory Provisions The following provisions shall be included in voluntary license contracts: (1) That the laws of the Philippines shall govern the interpretation of the same and in the event of litigation, the venue shall be the proper court in the place where the licensee has its principal office; [Sec. 88.1, RA 8293] (2) Continued access to improvements in techniques and processes related to the technology shall be made available during the period of the technology transfer arrangement; [Sec. 88.2, RA 8293] (3) In the event the technology transfer arrangement shall provide for arbitration, the Procedure of Arbitration of the Arbitration Law of the Philippines or the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) or the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) shall apply and the venue of arbitration shall be the Philippines or any neutral country; [Sec. 88.3, RA 8293] (4) The Philippine taxes on all payments relating to the technology transfer arrangement shall be borne by the licensor. [Sec. 88.4, RA 8293]

FOR

In an action for infringement, the defendant, in addition to other defenses available to him, may show the invalidity of the patent, or any claim thereof, on any of the grounds on which a petition of cancellation can be brought under Section 61. [Sec 81, RA 8293] i. Patent found invalid may be cancelled: In an action for infringement, if the court shall find the patent or any claim to be invalid, it shall cancel the same, and the Director of Legal Affairs upon receipt of the final judgment of cancellation by the court, shall record that fact in the register of the Office and shall publish a notice to that effect in the IPO Gazette. [Sec 82, RA 8293] ii. Doctrine of File Wrapper Estoppel Patentee is precluded from claiming as part of patented product that which he had to excise or modify in order to avoid patent office rejection, and he may omit any additions he was compelled to add by patent office regulations. [Advance Transformer Co. v. Levinson 837 F.2d 1081(1988)]

ii. Prohibited clauses The following provisions shall be deemed prima facie to have an adverse effect on competition and trade: (1) Those which impose upon the licensee the obligation to acquire from a specific source capital goods, intermediate products, raw materials, and other technologies, or of permanently employing personnel 271

UP LAW BOC


indicated by the licensor; [Sec. 87.1, RA 8293] (2) Those pursuant to which the licensor reserves the right to fix the sale or resale prices of the products manufactured on the basis of the license; [Sec. 87.2, RA 8293] (3) Those that contain restrictions regarding the volume and structure of production; [Sec. 87.3, RA 8293] (4) Those that prohibit the use of competitive technologies in a non-exclusive technology transfer agreement; [Sec. 87.4, RA 8293]

MERCANTILE LAW

(12) Those which restrict the research and development activities of the licensee designed to absorb and adapt the transferred technology to local conditions or to initiate research and development programs in connection with new products, processes or equipment; (Sec. 87.12, RA 8293) (13) Those which prevent the licensee from adapting the imported technology to local conditions, or introducing innovation to it, as long as it does not impair the quality standards prescribed by the licensor; (Sec. 87.13, RA 8293) (14) Those which exempt the licensor for liability for non-fulfillment of his responsibilities under the technology transfer arrangement and/or liability arising from third party suits brought about by the use of the licensed product or the licensed technology; (Sec. 87.14, RA 8293) (15) Other clauses with equivalent effects. (Sec. 87.15, RA 8293)

(5) Those that establish a full or partial purchase option in favor of the licensor; (Sec. 87.5, RA 8293) (6) Those that obligate the licensee to transfer for free to the licensor the inventions or improvements that may be obtained through the use of the licensed technology; (Sec. 87.6, RA 8293) (7) Those that require payment of royalties to the owners of patents for patents which are not used; (Sec. 87.7, RA 8293) (8) Those that prohibit the licensee to export the licensed product unless justified for the protection of the legitimate interest of the licensor such as exports to countries where exclusive licenses to manufacture and/or distribute the licensed product(s) have already been granted; (Sec. 87.8, RA 8293) (9) Those which restrict the use of the technology supplied after the expiration of the technology transfer arrangement, except in cases of early termination of the technology transfer arrangement due to reason(s) attributable to the licensee; (Sec. 87.9, RA 8293) (10) Those which require payments for patents and other industrial property rights after their expiration, termination arrangement; (Sec. 87.10, RA 8293) (11) Those which require that the technology recipient shall not contest the validity of any of the patents of the technology supplier; (Sec. 87.11, RA 8293)

Effect of Non-compliance with any provisions of Secs. 87 and 88 The technology transfer arrangement shall automatically be rendered unenforceable, unless said technology transfer arrangement is approved and registered with the Documentation, Information and Technology Transfer Bureau under the provisions of Section 91 on exceptional cases. [Sec. 92, RA 8293] Right of Licensor. —Unless otherwise provided in the technology transfer agreement, the licensor shall have the right to: (1) Grant further licenses to third person (2) Exploit the subject matter of the technology transfer agreement [Sec. 89, RA 8293] Right of the Licensee. — To exploit the subject matter of the technology transfer agreement

272

UP LAW BOC


during the whole term of the agreement. [Sec. 90, RA 8293]

MERCANTILE LAW

(4) In case of public non-commercial use of the patent by the patentee, without satisfactory reason; [Sec. 93.4, RA 8293 as amended by RA 9502] (5) If the patented invention is not being worked in the Philippines on a commercial scale, although capable of being worked, without satisfactory reason: Provided, That the importation of the patented article shall constitute working or using the patent; [Sec. 93.5, RA 8293 as amended by RA 9502] (6) Where the demand for patented drugs and medicines is not being met to an adequate extent and on reasonable terms, as determined by the Secretary of the Department of Health. [Sec. 93.6, RA 8293 as amended by RA 9502] (7) If the invention protected by a patent, hereafter referred to as the "second patent," within the country cannot be worked without infringing another patent, hereafter referred to as the "first patent," granted on a prior application or benefiting from an earlier priority, a compulsory license may be granted to the owner of the second patent to the extent necessary for the working of his invention, subject to certain conditions. [Sec. 97, RA 8293] (8) Manufacture and export of drugs and medicines to any country having insufficient or no manufacturing capacity in the pharmaceutical sector to address public health problems: Provided, That, a compulsory license has been granted by such country or such country has, by notification or otherwise, allowed importation into its jurisdiction of the patented drugs and medicines from the Philippines in compliance with the TRIPS Agreement. [Sec. 93-A.2, RA 8293 as amended by RA 9502]

Exceptional cases (1) In exceptional or meritorious cases where substantial benefits will accrue to the economy, such as high technology content, increase in foreign exchange earnings, employment generation, regional dispersal of industries and/or substitution with or use of local raw materials (2) The case of BOI-registered companies with pioneer status [Sec. 91, RA 8293]

I.2. COMPULSORY Compulsory Licensing is the grant of the Director of Legal Affairs of a license to exploit a patented invention, even without the agreement of the patent owner, in favor of any person who has shown his capability to exploit the invention. (Sec. 93, Ra 8293 as amended by RA 9502) i. Grounds The Director General of the Intellectual Property Office may grant a license to exploit a patented invention, even without the agreement of the patent owner, in favor of any person who has shown his capability to exploit the invention, under any of the following circumstances: (1) National emergency or other circumstances of extreme urgency; [Sec. 93.1, RA 8293 as amended by RA 9502] (2) Where the public interest, in particular, national security, nutrition, health or the development of other vital sectors of the national economy as determined by the appropriate agency of the Government, so requires; [Sec. 93.2, RA 8293 as amended by RA 9502] (3) Where a judicial or administrative body has determined that the manner of exploitation by the owner of the patent or his licensee is anti-competitive; [Sec. 93.3, RA 8293 as amended by RA 9502]

273

UP LAW BOC


ii. Period of filing a Petition for Compulsory License At any time after the grant of patent. However, a compulsory license may not be applied for on the ground stated in Sec. 93.5 before the expiration of a period of four (4) years from the date of filing of the application or three (3) years from the date of the patent whichever period expires last. [Sec. 94, RA 8293 as amended by RA 9502]

MERCANTILE LAW

(4) Use of the subject matter of the license shall be devoted predominantly for the supply of the Philippine market: Provided, that this limitation shall not apply where the grant of the license is based on the ground that the patentee's manner of exploiting the patent is determined by judicial or administrative process, to be anti-competitive. ;[Sec. 100.4, RA 8293] (5) The license may be terminated upon proper showing that circumstances which led to its grant have ceased to exist and are unlikely to recur: Provided, That adequate protection shall be afforded to the legitimate interest of the licensee; ; [Sec. 100.5, RA 8293] (6) The patentee shall be paid adequate remuneration taking into account the economic value of the grant or authorization, except that in cases where the license was granted to remedy a practice which was determined after judicial or administrative process, to be anti-competitive, the need to correct the anti-competitive practice may be taken into account in fixing the amount of remuneration. [Sec. 100.6, RA 8293]

iii. Requirement to Obtain a License on Reasonable Commercial Terms General Rule: The license will only be granted after the petitioner has made efforts to obtain authorization from the patent owner on reasonable commercial terms and conditions but such efforts have not been successful within a reasonable period of time. [Sec. 95.1, RA 8293 as amended by RA 9502] Exceptions: The requirement of authorization shall not apply in the following cases: (1) Where the petition for compulsory license seeks to remedy a practice determined after judicial or administrative process to be anti-competitive; (2) In situations of national emergency or other circumstances of extreme urgency; (3) In cases of public non-commercial use. (4) In cases where the demand for the patented drugs and medicines in the Philippines is not being met to an adequate extent and on reasonable terms, as determined by the Secretary of the Department of Health. [Sec. 95.2, RA 8293 as amended by RA 9502]

J. ASSIGNMENT AND TRANSMISSION OF RIGHTS J.1. ASSIGNMENT OF RIGHTS The assignment may be of the entire patent or a portion thereof, or be limited to a specified territory. [Sec. 104, RA 8293]

J.2. TRANSMISSION OF RIGHTS Patents or applications for patents and invention to which they relate, shall be protected in the same way as the rights of other property under the Civil Code. [Sec. 103.1, RA 8293]

iv. Terms and Conditions of Compulsory License (1) The scope and duration of such license shall be limited to the purpose for which it was authorized; [Sec. 100.1, RA 8293] (2) The license shall be non-exclusive; [Sec. 100.2, RA 8293] (3) The license shall be non-assignable, except with that part of the enterprise or business with which the invention is being exploited; ; [Sec. 100.3, RA 8293]

Inventions and any right, title or interest in and to patents and inventions covered thereby, may be assigned or transmitted by inheritance or bequest or may be the subject of a license contract. (Sec. 103.2, RA 8293) 274

UP LAW BOC


MERCANTILE LAW

A. DEFINITION OF MARKS, COLLECTIVE MARKS, TRADE NAMES

J.3. REQUIREMENTS FOR RECORDING OF ASSIGNMENT

A.1. MARKS

(1) It must be in writing and accompanied by an English translation, if it is in a language other than English or Filipino (2) It must be notarized (3) It must be accompanied by an appointment of a resident agent, if the assignee is not residing in the Philippines (4) It must identify the letters patent involved by number and date and give the name of the owner of the patent and the title of the invention. In the case of an application for a patent, it should state the application number and the filing date of the application and give the name of the applicant and the title of the invention. If the assignment was executed concurrently with or subsequent to the execution of the application but before the application is filed or before its application number is ascertained, it should adequately identify the application by its date of execution, the name of the applicant, and the title of the invention. (5) It must be accompanied by the required fees. [Sec. 105; Rules and Regulations on Inventions, Rule 1200]

Any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods (Sec. 121.1, RA 8293) Trademark

Service Mark

Any visible sign which is adopted and used to identify the source of origin of goods, and which is capable of distinguishing them from goods emanating from a competitor.

Any visible sign capable of distinguishing the services of an enterprise from the service of other enterprises.

Protection Is not limited to similar marks but also products that may case insidious damage. Collective Marks Any visible sign designated as such in the application for registration and capable of distinguishing the origin or any other common characteristic, including the quality of goods or services of different enterprises which use the sign under the control of the registered owner of the collective mark. (Sec. 121.2, RA 8293)

J.4. EFFECT OF NON-RECORDING OF ASSIGNMENT WITH THE IPO The non-recording will not affect the binding agreement between the assignor and assignee. However, such registration would be necessary to bind third parties. An assignment would be void as against any subsequent purchaser or mortgagee for valuable consideration and without notice unless recorded in the IPO within 3 months from the date of the assignment or prior to the subsequent purchase or mortgage. (Sec. 106, RA 8293)

Trade Name The name or designation identifying or distinguishing an enterprise (Sec. 121.3, RA 8293). Any individual name or surname, firm name, device or word used by manufacturers, industrialists, merchants, and others to identify their businesses, vocations or occupations. [Converse Rubber Corp. v. Universal Rubber Products, Inc. (1980)]

III. Trademarks

A.2. FUNCTIONS OF A TRADEMARK 275

UP LAW BOC


(1) To point out distinctly the origin or ownership of the goods and to which it is affixed; (2) To secure him, who has been instrumental in bringing into the market a superior article of merchandise, the fruit of his industry and skill; (3) To assure the public that they are producing the genuine article; (4) To prevent fraud and imposition; and (5) To protect the manufacturer against substitution and sale of an inferior and different article as its product [Mirpuri v. CA (1998)]

MERCANTILE LAW

enterprise or part thereof identified by that name. [Sec. 165.4, RA 8293]

D. NON-REGISTRABLE MARKS A mark cannot be registered if it: (1) Consists of immoral, deceptive or scandalous matter, or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute; [Sec 123.1(a), RA 8293] (2) Consists of flags, coat of arms or other insignia of the Philippines or any foreign country; [Sec 123.1(b), RA 8293] (3) Consists of a name, portrait or signature identifying a particular living individual except by his written consent, or of a deceased President of the Philippines, during the life of his widow, except by written consent of the widow; [Sec 123.1(c), RA 8293] (4) Is identical with a registered mark of another or a mark with an earlier filing or priority date, in respect of: (a) The same goods or services, or (b) Closely related goods or services, or (c) If it nearly resembles such a mark as to be likely to deceive or cause confusion; [Sec 123.1(d), RA 8293] (5) Is identical with, or confusingly similar to, or constitutes a translation of a wellknown mark, whether or not registered in the Philippines, and used for identical or similar goods or services; [Sec 123.1(e), RA 8293] (6) Is identical with, or confusingly similar to, or constitutes a translation of a wellknown mark which is registered in the Philippines, and used for goods or services which are not similar; [Sec 123.1(f), RA 8293] (7) Likely to mislead the public, particularly as to the nature, quality, characteristics or geographical origin of the goods or services; [Sec 123.1(g), RA 8293]

B. ACQUISITION OF OWNERSHIP OF MARK The rights to a mark shall be acquired through registration made validly in accordance with law. [Sec. 122, RA 8293] A certificate of registration shall remain in force for 10 years (Sec. 145, RA 8293) and may be renewed for periods of 10 years at its expiration upon payment of the prescribed fee and upon filing of a request. [Sec 146, RA 8293]

C. ACQUISITION OF OWNERSHIP OF TRADE NAME Notwithstanding any laws or regulations providing for any obligation to register trade names, such names shall be protected, even prior to or without registration, against any unlawful act committed by third parties. [Sec. 165.2 (a), RA 8293) The ownership of a trade name is acquired through adoption and use. A name or designation may not be used as a trade name if by its nature or the use to which such name or designation may be put, it is contrary to public order or morals and if, in particular, it is liable to deceive trade circles or the public as to the nature of the enterprise identified by that name. [Sec. 165.1, RA 8293] Any change in the ownership of a trade name shall be made with the transfer of the 276

UP LAW BOC


MERCANTILE LAW

(8) Consists exclusively of signs that are generic for the goods or services that they seek to identify; [Sec 123.1(h), RA 8293] (9) Consists exclusively of signs or of indications that have become customary or usual to designate the goods or services in everyday language or in a bona fide and established trade practice; [Sec 123.1(i), RA 8293] (10) Consists exclusively of signs or of indications that may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin, time or production of the goods or rendering of the services, or other characteristics of the goods or services; [Sec 123.1(j), RA 8293] (11) Consists of shapes that may be necessitated by technical factors or by the nature of the goods themselves or factors that affect their intrinsic value; [Sec 123.1(k), RA 8293] (12) Consists of color alone, unless defined by a given form; [Sec 123.1(l), RA 8293] (13) Is contrary to public order or morality. [Sec 123.1(m), RA 8293]

The nature of the goods to which the mark is applied will not constitute an obstacle to registration. [Sec 123.3, RA 8293]

D.1. DOCTRINE MEANING

Trademark is a creation of use and, therefore, actual use is a pre-requisite to exclusive ownership; registration is only an administrative confirmation of the existence of the right of ownership of the mark, but does not perfect such right; actual use thereof is the perfecting ingredient. [Shangri-La International Hotel v. DCC (2006)]

OF

E. PRIOR USE OF MARK AS A REQUIREMENT E.1. USE OF MARK AS A REQUIREMENT The applicant or the registrant shall file a declaration of actual use of the mark with evidence to that effect, as prescribed by the Regulations within three (3) years from the filing date of the application. Otherwise, the application shall be refused or the mark shall be removed from the Register by the Director. [Sec. 124.2, RA 8293] For the requirement of “actual use in commerce in the Philippines” before one may register a trademark, trade name and service mark under the law pertains to the territorial jurisdiction of the Philippines and is not only confined to a certain region, province, city or barangay. [McDonald’s Corporation v. MacJoy Fastfood (2007)]

SECONDARY

When the marks referred to in nos. 10, 11 and 12 has become distinctive, because of its long, continuous and exclusive use for 5 years, as used in connection with the applicant’s goods or services in commerce and in the mind of the public indicates a single source to consumers, it may be registered. The Office may accept as prima facie evidence that the mark has become distinctive, as used in connection with the applicant's goods or services in commerce, proof of substantially exclusive and continuous use thereof by the applicant in commerce in the Philippines for five (5) years before the date on which the claim of distinctiveness is made. [Sec 123.2, RA 8293]

E.2. NON-USE EXCUSED

OF

MARK

WHEN

(1) If caused by circumstances arising independently of the will of the trademark owner. Lack of funds shall not excuse nonuse of a mark; [Sec. 152.1, RA 8293] (2) A use which does not alter its distinctive character though the use is different from the form in which it is registered. [Sec. 152.2, RA 8293] 277

UP LAW BOC


(3) Use of a mark in connection with one or more of the goods/services belonging to the class in which the mark is registered. [Sec. 152.3, RA 8293] (4) The use of mark by a company related to the applicant or registrant (5) The use of mark by a person controlled by the registrant. [Sec. 152.4, RA 8293]

MERCANTILE LAW

The dominancy test considers the dominant features in the competing marks in determining whether they are confusingly similar. Under the dominancy test, courts give greater weight to the similarity of the appearance of the product arising from the adoption of the dominant features of the registered mark, disregarding minor differences. Courts will consider more the aural and visual impressions created by the marks in the public mind, giving little weight to factors like prices, quality, sales outlets and market segments.[McDonald’s Corporation v. L.C. Big Mak Burger, Inc., et al. (2004)]

The use of a mark by a company related with the registrant or applicant shall inure to the latter's benefit, and such use shall not affect the validity of such mark or of its registration: Provided, that such mark is not used in such manner as to deceive the public. [Sec.152.4, Ra 8293]

F.3. AS TO THE GOODS OR SERVICES IN CONNECTION WITH WHICH THE MARKS ARE USED (DOCTRINE OF RELATED GOODS/SERVICES)

F. TESTS TO DETERMINE CONFUSING SIMILARITY BETWEEN MARKS

(1) Goods are related when they belong to the same class or have the same descriptive properties or physical attributes, or they serve the same purpose or flow through the same channel of trade. (2) The use of identical marks on noncompeting but related goods may likely cause confusion. (3) Corollarily, the use of identical marks on non-competing and unrelated goods is not likely to cause confusion.

F.1. DOMINANCY TEST Infringement is determined by the test of “dominancy” rather than by differences or variations in the details of one trademark and of another. Similarity in size, form and color, while relevant is not conclusive. If the competing trademark contains the main or essential or dominant features of another, and confusion is likely to result, infringement takes place. [Asia Brewery v. CA and San Miguel (1993)]

F.2. HOLISTIC TEST

G. WELL-KNOWN MARKS

To determine whether a trademark has been infringed, we must consider the mark as a whole and not as dissected. If the buyer is deceived, it is attributable to the marks as a totality, not usually to any part of it. The court therefore should be guided by its first impression, for the buyer acts quickly and is governed by a casual glance, the value of which may be dissipated as soon as the court assumed to analyze carefully the respective features of the mark. [Del Monte Corporation, et al. v. CA (1990)]

In determining whether a mark is well-known, account shall be taken of the knowledge of the relevant sector of the public, rather than the public at large, including knowledge in the Philippines which has been obtained as a result of the promotion of the mark. (Sec 123.1(e), RA 8293)

A well-known mark is a mark which a competent authority of the Philippines has designated to be well-known internationally and in the Philippines.

278

UP LAW BOC

G.1. DETERMINANTS CONCUR)


(NEED

NOT

MERCANTILE LAW

accordance with the Sec. 123.1 (e), which is registered in the Philippines with respect to goods or services which are not similar to those with respect to which registration is applied for. [Sec 123.1(f), RA 8293]

(1) The duration, extent and geographical area of any use of the mark; (2) The market share in the Philippines and other countries of the goods/services to which the mark applies; (3) The degree of the inherent or acquired distinction of the mark; (4) The quality-image or reputation acquired by the mark; (5) The extent to which the mark has been registered in the world; (6) The exclusivity of the registration attained by the mark in the world; (7) The extent of use of the mark in the world; (8) The exclusivity of use in the world; (9) The commercial value attributed to the mark in the world; (10) The record of successful protection of the rights in the mark; (11) The outcome of litigations dealing with the issue of whether the mar is well-known; and (12) The presence or absence of identical or similar test marks validly registered or used on other similar goods [Rule 102, Rule on Trademarks]

Priority Right An application for registration of a mark filed in the Philippines by a person referred to in Section 3, and who previously duly filed an application for registration of the same mark in one of those countries, shall be considered as filed as of the day the application was first filed in the foreign country. [Sec. 131.1, RA 8293] No registration of a mark in the Philippines by a person described in this section shall be granted until such mark has been registered in the country of origin of the applicant. [Sec. 131.2, RA 8293] Significance of Priority Right A Philippine application filed by another applicant after the priority date but earlier than the foreign applicant’s actual filing may be refused registration if it is identical to the mark with a priority date. [The Law on Trademark, Infringement and Unfair Competition, Agpalo]

G.2. PROTECTION EXTENDED TO WELLKNOWN MARKS

G.3. RIGHTS CONFERRED BY A WELLKNOWN MARK

i. If not registered in the Philippines A mark cannot be registered if it is identical with or confusingly similar to, or constitutes a translation of a mark which is considered by the competent authority of the Philippines to be well-known internationally and in the Philippines, whether or not it is registered here, as being already the mark of a person other than the applicant for registration and used for identical goods or services. [(Sec 123.1(e), RA 8293]

(1) Right to be protected whether or not it is registered in the Philippines; (2) If registered under Sec 123.1(e), extension of protection to goods and services which are not similar to those in respect of which the mark is registered, provided that: (a) The use of the mark in relation to unrelated or dissimilar goods or services would indicate a connection between those goods or services and the owner of the mark; and (b) The interests of the owner of the registered mark are likely to be

ii. If registered in the Philippines A mark cannot be registered if it is identical with or confusingly similar to, or constitutes a translation of a mark considered well-known in 279

UP LAW BOC


damaged by such use. [Sec. 147.2, RA 8293] (2)

H. RIGHTS REGISTRATION

CONFERRED

BY

Except in cases of importation of drugs and medicines allowed under Section 72.1 of this Act and of off-patent drugs and medicines, the owner of a registered mark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs or containers for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. [Sec. 147.1, RA 8293 as amended by RA 9502]

(3)

(4)

H.1. LIMITATIONS ON SUCH RIGHTS (1) Duration (except that, inasmuch as the registration of a trademark could be renewed every 10 years, a trademark could conceivably remain registered forever); (2) Territorial (except well-known marks).

(5)

Registration of the mark shall not confer on the registered owner the right to preclude third parties from using bona fide their names, addresses, pseudonyms, a geographical name, or exact indications concerning the kind, quality, quantity, destination, value, place of origin, or time of production or of supply, of their goods or services: Provided, That such use is confined to the purposes of mere identification or information and cannot mislead the public as to the source of the goods or services. [Sec. 148, RA 8293]

MERCANTILE LAW

the business using the mark. [Sec. 149.1, RA 8293] Such assignment or transfer shall, however, be null and void if it is liable to mislead the public, particularly as regards the nature, source, manufacturing process, characteristics, or suitability for their purpose, of the goods or services to which the mark is applied. [Sec. 149.2, RA 8293] The assignment of the application for registration of a mark, or of its registration, shall be in writing and require the signatures of the contracting parties. Transfers by mergers or other forms of succession may be made by any document supporting such transfer. [Sec. 149.3, RA 8293] Assignments and transfers of registrations of marks shall be recorded at the Office on payment of the prescribed fee; assignment and transfers of applications for registration shall, on payment of the same fee, be provisionally recorded, and the mark, when registered, shall be in the name of the assignee or transferee. [Sec. 149.4, RA 8293] Assignments and transfers shall have no effect against third parties until they are recorded at the Office. [Sec. 149.5, RA 8293]

Any license contract concerning the registration of a mark, or an application therefor, shall provide for effective control by the licensor of the quality of the goods or services of the licensee in connection with which the mark is used. If the license contract does not provide for such quality control, or if such quality control is not effectively carried out, the license contract shall not be valid. [Sec. 150.1, RA 8293]

H.2. ASSIGNMENT AND TRANSFER OF APPLICATION AND REGISTRATION

H.3. PROTECTION LIMITED TO GOODS SPECIFIED IN REGISTRATION CERTIFICATE

(1) An application for registration of a mark, or its registration, may be assigned or transferred with or without the transfer of

The certificate of registration can confer upon the petitioner the exclusive right to use its own 280

UP LAW BOC


symbol only to those goods specified in the certificate, subject to any conditions a limitations stated therein. One who has adopted and used a trademark on his goods does not prevent the adoption and use of the same trademark by others for products which are of a different description. [Faberge, Inc. v. IAC and Co Beng Kay (1992)]

MERCANTILE LAW

A crucial issue in any trademark infringement case is the likelihood of confusion, mistake or deceit as to the identity, source or origin of the goods or identity of the business as a consequence of using a certain mark. Likelihood of confusion is admittedly a relative term, to be determined rigidly according to the particular (and sometimes peculiar) circumstances of each case. In determining likelihood of confusion, the court must consider: (a) the resemblance between the trademarks; (b) the similarity of the goods to which the trademarks are attached; (c) the likely effect on the purchaser; and (d) the registrant’s express or implied consent and other fair and equitable considerations. [Mighty Corporation v. E. & J. Gallo Winery (2004)]

I. USE BY THIRD PARTIES OF NAMES, ETC. SIMILAR TO REGISTERED MARK The IPC deems unlawful any subsequent use of the trade name by a third party, whether as a trade name or a mark or collective mark, or any such use of a similar trade name or mark, likely to mislead the public. [Sec. 165.2 (b), RA 8293]

J. INFRINGEMENT AND REMEDIES J.1. TRADEMARK INFRINGEMENT

To establish trademark infringement, the following elements must be shown: (1) the validity of the mark; (2) the plaintiff’s ownership of the mark; and (3) the use of the mark or its colorable imitation by the alleged infringer results in “likelihood of confusion.” Of these, it is the element of likelihood of confusion that is the gravamen of trademark infringement. Two types of confusion arise from the use of similar or colorable imitation marks, namely, confusion of goods (product confusion) and confusion of business (source or origin confusion). While there is confusion of goods when the products are competing, confusion of business exists when the products are non-competing but related enough to produce confusion or affiliation. [McDonald’s Corporation v. L.C. Big Mak Burger, Inc., et al., (2004)]

Any person who shall, without the consent of the owner of the registered mark: (1) Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; [Sec. 155.1, RA 8293] (2) Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive. [Sec. 155.2, RA 8293]

In order to bring a civil action for infringement, it is not required that there is an actual sale of the goods or services using the infringing material. [Sec. 155.2, RA 8293] Infringement takes place upon the mere use or reproduction of the registered mark.

281

UP LAW BOC


MERCANTILE LAW

No article of imported merchandise which shall copy or simulate the name of any domestic product, or manufacturer, or dealer, or which shall copy or simulate a mark registered in accordance with the provisions of this Act, or shall bear a mark or trade name calculated to induce the public to believe that the article is manufactured in the Philippines, or that it is manufactured in any foreign country or locality other than the country or locality where it is in fact manufactured, shall be admitted to entry at any customhouse of the Philippines. [Sec. 166, RA 8293]

Any goods marked or labeled in contravention of the provisions of this Section shall not be imported into the Philippines or admitted entry at any customhouse of the Philippines. The owner, importer, or consignee of goods refused entry at any customhouse under this section may have any recourse under the customs revenue laws or may have the remedy given by this Act in cases involving goods refused entry or seized. [Sec. 169.2, RA 8293]

A mere distributor and not the owner cannot assert any protection from trademark infringement as it had no right in the first place to the registration of the disputed trademarks. [Superior Commercial Enterprises v. Kunnan Enterprises (2010)]

General Rule: It is unlawful for any person, without the consent of the manufacturer, bottler or seller who has registered the mark of ownership to fill such bottles, boxes, kegs, barrels or other containers so marked and stamped, for the purpose of sale, dispose of, or wantonly destroy the same, whether filled or not, to use the same for drinking vessels or drain pipes, foundation pipes, for any other purpose than that registered. [Sec. 2, RA 623 as amended by RA 5700]

J.3. INFRINGEMENT OF NAME AND MARKS OF OWNERSHIP STAMP ON CONTAINERS

J.2. FALSE DESIGNATIONS OF ORIGIN; FALSE DESCRIPTION OR REPRESENTATION Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which: (1) Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; [Sec. 169.1(a), RA 8293] (2) In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable to a civil action for damages and injunction [Sec. 169.1 (b), RA 8293]

The use of the same without apparent permission from the trademark owners thereof shall be prima facie presumption that such possession or use is unlawful. [Sec. 3, RA 623 as amended by RA 5700] Exceptions: (1) Use of the bottles as containers for sisi, bagoong, patis, and similar native products [Sec. 6 RA 623 as amended by RA 5700] (2) Persons in whose favor the containers were sold [Distelleria Washington v. LA Tondena Distillers (1997)]

J.4. DAMAGES The owner of a registered mark may recover damages from any person who infringes his rights, and the measure of the damages suffered shall be either the reasonable profit which the complaining party would have made, 282

UP LAW BOC


had the defendant not infringed his rights, or the profit which the defendant actually made out of the infringement, or in the event such measure of damages cannot be readily ascertained with reasonable certainty, then the court may award as damages a reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party. [Sec. 156.1, RA 8293]

MERCANTILE LAW

confusion, or to cause mistake, or to deceive is an element of infringement. Requirement of notice may be complied by displaying with the mark the words '"Registered Mark" or the letter R within a circle. [Sec. 158, RA 8293]

J.6. OTHER REMEDIES AVAILABLE: (1) Injunction [Sec. 156.4]; (2) Impounding of sales invoices and other documents [Sec. 156.2]; (3) Double damages in case of actual intent to defraud or to mislead [Sec. 156.3]; (4) Court order for the disposal or destruction of the infringing goods [Sec. 157]; (5) Criminal Action; (6) Administration sanctions

The owner of the registered mark shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is likely to cause confusion, or to cause mistake, or to deceive. Such knowledge is presumed if the registrant gives notice that his mark is registered by displaying with the mark the words '"Registered Mark" or the letter R within a circle or if the defendant had otherwise actual notice of the registration. [Sec. 158, RA 8293]

Any foreign national, who qualifies under the principle on reciprocity and does not engage in business in the Philippines, whether or not it is licensed to do business in the Philippines, may bring civil or administrative action for: (1) Opposition (2) Cancellation (3) Infringement (4) Unfair Competition (5) False designation of origin or false description (Sec. 160. RA 8293)

Should damages be recoverable, the measure of the damages suffered shall be either: (1) The reasonable profit which the complaining party would have made, had the defendant not infringed his rights; or (2) The profit which the defendant actually made out of the infringement; or (3) A reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used in the infringement of the rights of the complaining party if such measure of damages cannot be readily ascertained with reasonable certainty. [Sec. 156.1, RA 8293]

J.7. LIMITATIONS TO ACTIONS FOR INFRINGEMENT

J.5. REQUIREMENT OF NOTICE

The remedies given to the owner of a right infringed shall be limited as follows: (1) Registered mark shall have no effect against any person who, in good faith, before the filing date or the priority date, was using the mark for the purposes of his business or enterprise: Provided, That his right may only be transferred or assigned together with his enterprise or business or with that part of his enterprise or business in which the mark is used. [Sec. 159.1, RA 8293]

Notice of registration of trademark is necessary for an owner of a trademark to recover damages in an action for infringement since knowledge that such imitation is likely to cause

(2) Where an infringer who is engaged solely in the business of printing the mark or other infringing materials for others is an 283

UP LAW BOC


innocent infringer, the owner of the right infringed shall be entitled as against such infringer only to an injunction against future printing. [Sec. 159.2, RA 8293]

MERCANTILE LAW

That said drugs and medicines bear the registered marks that have not been tampered, unlawfully modified, or infringed upon as defined under Section 155. [Sec. 159.4 RA 8293 as amended by RA 9502]

(3) Where the infringement complained of is contained in or is part of paid advertisement in a newspaper, magazine, or other similar periodical or in an electronic communication, the remedies of the owner of the right infringed as against the publisher or distributor of such newspaper, magazine, or other similar periodical or electronic communication shall be limited to an injunction against the presentation of such advertising matter in future issues of such newspapers, magazines, or other similar periodicals or in future transmissions of such electronic communications.

K. UNFAIR COMPETITION A person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not a registered mark is employed, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other property rights. [Sec. 168.1, RA 8293] Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor. [Sec. 168.2, RA 8293]

The limitations shall apply only to innocent infringers: Provided, That such injunctive relief shall not be available to the owner of the right infringed with respect to an issue of a newspaper, magazine, or other similar periodical or an electronic communication containing infringing matter where restraining the dissemination of such infringing matter in any particular issue of such periodical or in an electronic communication would delay the delivery of such issue or transmission of such electronic communication is customarily conducted in accordance with the sound business practice, and not due to any method or device adopted to evade this section or to prevent or delay the issuance of an injunction or restraining order with respect to such infringing matter. [Sec. 159.3, RA 8293]

The following shall be deemed guilty of unfair competition: (1) Any person, who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any

(4) There shall be no infringement of trademarks or tradenames of imported or sold drugs and medicines allowed under Section 72.1 as well as imported or sold offpatent drugs and medicines: Provided, 284

UP LAW BOC


vendor engaged in selling such goods with a like purpose; [Sec. 168.3(a), RA 8293] (2) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; [Sec. 168.3(b), RA 8293] (3) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another. (Sec. 168.3(c), RA 8293)

MERCANTILE LAW

every unfair act committed in the course of business; it covers only acts characterized by “deception or any other means contrary to good faith” in the passing off of goods and services as those of another who has established goodwill in relation with these goods or services, or any other act calculated to produce the same result. What unfair competition is, is further particularized under Section 168.3 when it provides specifics of what unfair competition is “without in any way limiting the scope of protection against unfair competition.” Part of these particulars is provided under Section 168.3(c) which provides the general “catch-all” phrase that the petitioner cites. Under this phrase, a person shall be guilty of unfair competition “who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another.” [Coca-Cola v. Gomez (2008)]

The elements of an action for unfair competition are: (1) confusing similarity in the general appearance of the goods, and (2) intent to deceive the public and defraud a competitor. The confusing similarity may or may not result from similarity in the marks, but may result from other external factors in the packaging or presentation of the goods. The intent to deceive and defraud may be inferred from the similarity in appearance of the goods as offered for sale to the public. Actual fraudulent intent need not be shown. [McDonald’s Corporation v. L.G. Big Mak Burger, Inc., et al. (2004)]

From jurisprudence, unfair competition has been defined as the passing off (or palming off) or attempting to pass off upon the public the goods or business of one person as the goods or business of another with the end and probable effect of deceiving the public. It formulated the “true test” of unfair competition: whether the acts of defendant are such as are calculated to deceive the ordinary buyer making his purchases under the ordinary conditions which prevail in the particular trade to which the controversy relates. One of the essential requisites in an action to restrain unfair competition is proof of fraud; the intent to deceive must be shown before the right to recover can exist. The advent of the IP Code has not significantly changed these rulings as they are fully in accord with what Section 168 of the Code in its entirety provides. Deception, passing off and fraud upon the public are still the key elements that must be present for unfair competition to exist.

An action for unfair competition is based on the proposition that no dealer in merchandise should be allowed to dress his goods in simulation of the goods of another dealer, so that purchasers desiring to buy the goods of the latter would be induced to buy the goods of the former. The most usual devices employed in committing this crime are the simulation of labels and the reproduction of form, color and general appearance of the package used by the pioneer manufacturer or dealer. [Caterpillar, Inc v. Samson (2006)] Articles 168.1 and 168.2 provide the concept and general rule on the definition of unfair competition. The law does not thereby cover 285

UP LAW BOC Infringement of Trademark


(2) If it is liable to deceive trade circles or the public as to the nature of the enterprise identified by the name (3) If the trade name is similar to a mark or a trade name owned by another person and its use would likely mislead the public. [Sec.165.1, RA 8293]

Unfair Competition

Unauthorized use of a Passing off of one’s trademark goods as those of another Fraudulent intent is Fraudulent intent is unnecessary essential Prior registration of Registration is the trademark is a necessary prerequisite to the action [In and Out Burger vs Sehwani (2008)]

MERCANTILE LAW

Acquisition of ownership: Trade names are protected even prior to or without registration. The ownership of a trade name is acquired through adoption and use.

not

Right of owner: The IPC deems unlawful any subsequent use of the trade name by a third party, whether as a trade name or a mark or collective mark, or any such use of a similar trade name or mark, likely to mislead the public. [Sec. 165.2 (b), RA 8293]

The law on unfair competition is broader and more inclusive than the law on trademark infringement. The latter is more limited but it recognizes a more exclusive right derived from the trademark adoption and registration by the person whose goods or business is first associated with it. Hence, even if one fails to establish his exclusive property right to a trademark, he may still obtain relief on the ground of his competitor’s unfairness or fraud. Conduct constitutes unfair competition if the effect is to pass off on the public the goods of one man as the goods of another. [Mighty Corporation v. E. & J. Gallo Winery (2004)]

Trade names, unlike trademarks, need not be registered with the IPO before an infringement suit may be filed by its owner against the owner of an infringing trademark. All that is required is that the trade name is previously used in trade or commerce in the Philippines. [Prosource International v. Horphag Research Management (2009)]

M. COLLECTIVE MARKS

L. TRADE NAMES OR BUSINESS NAMES

A Collective mark is any visible sign designated as such in the application for registration and capable of distinguishing the origin or any other common characteristic, including the quality of goods or services of different enterprises which use the sign under the control of the registered owner of the collective mark [Sec. 121.2, RA 8293]

It is the name or designation identifying or distinguishing an enterprise. [Sec. 121.3, RA 8293] Any individual name or surname, firm name, device or word used by manufacturers, industrialists, merchants, and others to identify their businesses, vocations or occupations [Converse Rubber Corp. v. Universal Rubber Products, Inc. (1980)]

An application for registration of a collective mark shall designate the mark as a collective mark and shall be accompanied by a copy of the agreement, if any, governing the use of the collective mark. [Sec. 167.2, Ra 8293]

L.1. WHAT MAY NOT BE USED AS TRADE NAME (1) If by its nature or the use to which the name or designation may be put, it is contrary to public order or morals. 286

UP LAW BOC


M.1. GROUNDS FOR CANCELLATION

MERCANTILE LAW

considerations, the artistic aspects of the work cannot be conceptually separable from the utilitarian aspects; thus, the article cannot be copyrighted.

In addition to the grounds under Section 149, the Court shall cancel the registration of a collective mark if the person requesting the cancellation proves: (1) That only the registered owner uses the mark; or (2) That he uses or permits its use in contravention of the agreements referred to in Subsection 166.2; or (3) That he uses or permits its use in a manner liable to deceive trade circles or the public as to the origin or any other common characteristics of the goods or services concerned. [Sec. 167.3, RA 8293]

B.2. PROTECTION EXTENDS ONLY TO THE EXPRESSION OF AN IDEA, NOT THE IDEA ITSELF. No protection shall extend, under this law, to any idea, procedure, system method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work. [Sec 175, RA 8293]

B.3. THE COPYRIGHT IS DISTINCT FROM THE PROPERTY IN THE MATERIAL OBJECT SUBJECT TO IT. [SEC 181, RA 8293]

The registration of a collective mark, or an application therefor shall not be the subject of a license contract. [Sec. 167.4, RA 8293]

IV. Copyrights

B.4. COPYRIGHT RIGHT.

A. DEFINITION

Copyright, in the strict sense of the term is purely a statutory right. Being a mere statutory grant, the rights are limited to what the statute confers. It may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute. Accordingly, it can cover only the works falling within the statutory enumeration or description. [Pearl and Dean vs. Shoemart (2003)]

Is that system of legal protection an author enjoys of the form of expression of ideas. [Aquino, Intellectual Property Law]

B. BASIC PRINCIPLES, SECTIONS 172.2, 175 AND 181 B.1. WORKS ARE PROTECTED BY THE SOLE FACT OF THEIR CREATION Principle of Automatic Protection: Copyright is vested from the very moment of creation. [Sec. 172.2, RA 8293]

IS

A

STATUTORY

C. COPYRIGHTABLE WORKS C.1. ORIGINAL LITERARY AND ARTISTIC WORKS

The enjoyment and exercise of copyright, including moral rights, shall not be the subject of any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. [Article 5(2), Berne Convention for the Protection of Literary and Artistic Works] The Denicola Test in intellectual property law states that if design elements of an article reflect a merger of aesthetic and functional 287

UP LAW BOC


Sec. 172.1, RA 8293. Literary and artistic works, hereinafter referred to as "works", are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular: (a) Books, pamphlets, articles and other writings; (b) Periodicals and newspapers; (c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form; (d) Letters; (e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows; (f) Musical compositions, with or without words; (g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art; (h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art; (i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science; (j) Drawings or plastic works of a scientific or technical character; (k) Photographic works including works produced by a process analogous to photography; lantern slides; (l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings; (m) Pictorial illustrations and advertisements; (n) Computer programs; and (o) Other literary, scholarly, scientific and artistic works

MERCANTILE LAW

When a work is considered original: (1) The work is an independent creation of the author; and (2) It must not be copied from the work of another. A person to be entitled to a copyright must be the original creator of the work. He must have created it by his own skill, labor and judgment without directly copying or evasively imitating the work of another. [Ching Kian Chuan vs. CA (2001)] By originality is meant that the material was not copied, and evidences at least minimal creativity; that it was independently created by the author and that it possesses at least some minimal degree of creativity. Copying is shown by proof of access to copyrighted material and substantial similarity between the two works. The applicant must thus demonstrate the existence and validity of copyright because in the absence of copyright protection, even the original creation may be freely copied.[Ching v. Salinas (2005)] Originality is not determined by novelty, aesthetic merit or ingenuity but that it is an independent creation. The requirement in US Law that the expression should be fixed in a tangible medium is not applicable here since our law expressly provides that works are protected irrespective of their mode or form of expression.[Sec. 172.2, RA 8293]

C.2. DERIVATIVE WORKS The following derivative works shall also be protected by copyright: (1) Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and (2) Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of 288

UP LAW BOC


MERCANTILE LAW

the selection or coordination or arrangement of their contents. [Sec. 173.1, RA 8293]

(3) Any official text of a legislative, administrative or legal nature, as well as any official translation thereof;

Derivative works are protected as new works provided they shall not: (a) Affect the force of any subsisting copyright upon the original works employed or any part thereof; or (b) Be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. [Sec. 173.2, RA 8293]

(4) Pleadings; (5) Original decisions of courts and tribunals (This pertains to the “original decisions” not the SCRA published volumes since these are protected under derivative works under Sec 173.1) [Sec. 175, RA 8293] The format or mechanics of a TV show is not copyrightable as copyright does not extend to ideas, procedures, processes, systems, methods of operation, concepts, principles or discoveries regardless of the form in which they are described, explained, illustrated or embodied. [Joaquin Jr. et al vs. Drilon, et al (1999)]

The provisions of the intellectual property code shall apply to works in which copyright protection obtained prior to the effectivity of the law is subsisting. Provided that the application of the code shall not result in the diminution of such protection. [Sec. 239.3 IPC]

No one may claim originality as to facts as these do not owe their origin to an act of authorship. The first person to find and report a particular fact has not created the same; he has merely discovered its existence. [Feist Publication v Rural Telephone Services (1991)]

A person entitled to copyright must be the original creator of the work. He must have created it by his own skill, labor, and judgment without directly copying or evasively imitating the work of another. [Ching Kian Chuan vs CA 363 SCRA 142 (2001) (Vermicelli Case)]

D.2. WORKS OF THE GOVERNMENT OF THE PHILIPPINES

To be entitled to copyright, the thing being copyrighted must be original, created by the author through his own judgment without directly copying or evasively imitating the work of another. [Sambar vs Levi Strauss 378 SCRA 364 (2002]:

Work of the Government of the Philippines: Is a work created by an officer or employee of the Philippine Government or any of its subdivisions and instrumentalities, including government-owned or controlled corporations as a part of his regularly prescribed official duties. [Sec. 171.11, RA 8293]

D. NON-COPYRIGHTABLE WORKS D.1. UNPROTECTED SUBJECT MATTER

General Rule: copyright

(1) Any idea, procedure, system method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; (2) News of the day and other miscellaneous facts having the character of mere items of press information;

Government

cannot

own

Exceptions: (1) When copyright is assigned or bequested in favor of the government [Sec 176.3]; (2) Author of speeches, lectures, sermons, addresses and dissertations shall have exclusive right of making a collection of his work. 289

UP LAW BOC


MERCANTILE LAW

D.3. WORKS OF THE PUBLIC DOMAIN

However, prior approval of the government agency or the office wherein the work is created shall be necessary for the exploitation of such work for profit. [Sec. 176.1]

These include works whose term of copyright has expired.

D.4. USEFUL ARTICLES Useful Article Doctrine: Works whose sole purpose is utilitarian have no separate artistic value. This can be distinguished from a work of applied art, which has utilitarian functions but there is an identifiable artistic work or creation incorporated thereto.

Notwithstanding the foregoing provisions, the Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest or otherwise; nor shall publication or republication by the Government in a public document of any work in which copyright is subsisting be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such work without the consent of the copyright owner. [Sec. 176.3, RA 8293]

E. RIGHTS OF COPYRIGHT OWNER E.1. COPYRIGHT OR ECONOMIC RIGHTS Copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts: (1) Reproduction of the work or substantial portion of the work; [Sec. 177.1, RA 8293] (2) Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; [Sec. 177.2, RA 8293] (3) The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; [Sec. 177.3, RA 8293] (4) Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; [Sec. 177.4, RA 8293] (5) Public display of the original or a copy of the work; [Sec. 177.5, RA 8293] (6) Public performance of the work; [Sec. 177.6, RA 8293] (7) Other communication to the public of the work [Sec. 177.7, RA 8293]

In writing judicial decisions, a judge should make the proper attribution in copying passages from any judicial decision, statute, regulation, or other Works of the Government. However, the failure to make such attribution does not violate the Law on Copyright. The law expressly provides that Works of the Government are not subject to copyright. This means that there is neither a legal right by anyone to demand attribution, nor any legal obligation from anyone to make an attribution, when Works of the Government are copied. The failure to make the proper attribution of a Work of the Government is not actionable but is merely a case of sloppy writing. Clearly, there is no legal obligation, by a judge or by any person, to make an attribution when copying Works of the Government. However, misquoting or twisting, with or without attribution, any judicial decision, statute, regulation or other Works of the Government in judicial writing, if done to mislead the parties or the public, is actionable. [J. Carpio Dissenting Opinion, In The Matter Of the Charges of Plagiarism, Etc., Against Assoc. Justice Mariano Del Castillo, A.M. 10-7-17-SC (2011)]

Economic rights also give the author the right to assign or license the copyright and/or the material object in whole or in part, and they allow the owner to derive financial reward from 290

UP LAW BOC


the use of his works by others. [Sec. 180.1, RA 8293 as amended by RA 10372]

(4) The scientist or technologist or any other person with regard to his discovery or invention.

Copyright in a work of architecture: shall include the right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original: Provided, That the copyright in any such work shall not include the right to control the reconstruction or rehabilitation in the same style as the original of a building to which that copyright relates. [Sec. 186, RA 8293]

Article 722. The author and the composer, mentioned in Nos. 1 and 2 of the preceding article, shall have the ownership of their creations even before the publication of the same. Once their works are published, their rights are governed by the Copyright laws. The painter, sculptor or other artist shall have dominion over the product of his art even before it is copyrighted. The scientist or technologist has the ownership of his discovery or invention even before it is patented.

Communication to the Public of Copyrighted Works: Includes point-to-point transmission of a work, including video on demand, and providing access to an electronic retrieval system, such as computer databases, servers, or similar electronic storage devices. Broadcasting, rebroadcasting, retransmission by cable, and broadcast and retransmission by satellite are all acts of “communication to the public” within the meaning of the IPC. [Rule 11, Copyright Safeguards and Regulations]

Article 723. Letters and other private communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, the court may authorize their publication or dissemination if the public good or the interest of justice so requires.

E.2. MORAL RIGHTS [SEC. 193]

First Public Distribution of Work: An exclusive right of first distribution of work includes all acts involving distribution, specifically including the first importation of an original and each copy of the work into the jurisdiction of the Republic of the Philippines. [Rule 12, Copyright Safeguards and Regulations] Civil Code Provisions Intellectual Creation:

on

Ownership

MERCANTILE LAW

The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right: (1) To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work; [Sec. 193.1, RA 8293] (2) To make any alterations of his work prior to, or to withhold it from publication; [Sec. 193.2, RA 8293] (3) To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; [Sec. 193.3, RA 8293]

of

Article 721. By intellectual creation, the following persons acquire ownership: (1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work; (2) The composer; as to his musical composition; (3) The painter, sculptor, or other artist, with respect to the product of his art; 291

UP LAW BOC


(4) To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. [Sec. 193.4, RA 8293]

MERCANTILE LAW

E.3. RIGHTS TO PROCEEDS IN SUBSEQUENT TRANSFERS (DROIT DE SUITE OR FOLLOW UP RIGHTS) In every sale or lease of an original work of painting or sculpture or of the original manuscript of a writer or composer, subsequent to the first disposition thereof by the author, the author or his heirs shall have an inalienable right to participate in the gross proceeds of the sale or lease to the extent of five percent (5%). This right shall exist during the lifetime of the author and for fifty (50) years after his death. [Sec. 200, RA 8293]

In addition to the right to publish granted by the author, his heirs, or assigns, the publisher shall have a copyright consisting merely of the right of reproduction of the typographical arrangement of the published edition of the work. [Sec.174, RA 8293] The author of speeches, lectures, sermons, addresses, and dissertations mentioned in the preceding paragraphs shall have the exclusive right of making a collection of his works. [Sec. 176.2, Ra 8293]

Works not covered: Prints, etchings, engravings, works of applied art, or works of similar kind wherein the author primarily derives gain from the proceeds of reproductions. (Sec. 201, RA 8293)

i. Waiver of Moral Rights General Rule: Moral rights can be waived in writing, expressly stating such waiver [Sec. 195, RA 8293] or by contribution to a collective work unless such is expressly reserved [Sec. 196, RA 8293].

First Sale Doctrine: After the first sale of the lawfully made copy of the copyrighted work, anyone who is the owner of that copy can sell or dispose of that copy in any way without any liability for copyright infringement. The first sale of an authorized copy of the work exhausts the author’s right to control distribution of copies.

Exceptions: Even if made in writing, waiver is still not valid if: (1) Use of the name of the author, title of his work, or his reputation with respect to any version or adaptation of his work, which because of alterations substantially tends to injure the literary or artistic reputation of another author; [Sec. 195.1, RA 8293] (2) It uses the name of the author in a work that he did not create. [Sec. 195.1, RA 8293]

E.4. NEIGHBORING RIGHTS E.5. PERFORMER’S RIGHTS (1) As regards their performances, the right of authorizing: (a) The broadcasting and other communication to the public of their performance; and (b) The fixation of their unfixed performance. [Sec. 203.1, RA 8293] Such right shall be maintained and exercised fifty (50) years after his death, by his heirs, and in default of heirs, the government, where protection is claimed. [Sec. 204.2, RA 8293] (2) The right of authorizing the direct or indirect reproduction of their performances

Moral rights are not assignable or subject to license. [Sec. 198, RA 8293] The right of an author under Section 193.1. shall last during the lifetime of the author and in perpetuity after his death while the rights under Sections 193.2. 193.3. and 193.4. shall be coterminous with the economic rights [Sec. 198, RA 8293 as amended by RA 10372] 292

UP LAW BOC


fixed in sound recordings, or audiovisual works or fixations in any manner or form; [Sec. 203.2, RA 8293, as amended by 10372]

MERCANTILE LAW

thereof by the broadcasting organization, the performer shall be entitled to an additional remuneration equivalent to at least five percent (5%) of the original compensation he or she received for the first communication or broadcast. [Sec. 206, RA 8293]

(3) Subject to the provisions of Section 206, the right of authorizing the first public distribution of the original and copies of their performance fixed in the sound recording or audiovisual works or fixations through sale or rental or other forms of transfer of ownership; [Sec. 203.3, RA 8293, as amended by RA 10372] (4) The right of authorizing the commercial rental to the public of the original and copies of their performances fixed in sound recordings or audiovisual works or fixations, even after distribution of them by, or pursuant to the authorization by the performer; [Sec. 203.4, RA 8293, as amended by RA 10372] (5) The right of authorizing the making available to the public of their performances fixed in sound recordings or audiovisual works or fixations, by wire or wireless means, in such a way that members of the public may access them from a place and time individually chosen by them. [Sec. 203.5, RA 8293, as amended by RA 10372] (6) Independently of a performer's economic rights, the performer, shall, as regards his live aural performances or performances fixed in sound recordings or audiovisual works or fixations, have the right to claim to be identified as the performer of his performances, except where the omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation. [Sec. 204.1, RA 8293, as amended by RA 10372] (7) Unless otherwise provided in the contract, in every communication to the public or broadcast of a performance subsequent to the first communication or broadcast

E.6. RIGHTS OF PRODUCERS OF SOUND RECORDING (1) The right to authorize the direct or indirect reproduction of their sound recordings, in any manner or form; the placing of these reproductions in the market and the right of rental or lending; [Sec. 208.1, RA 8293] (2) The right to authorize the first public distribution of the original and copies of their sound recordings through sale or rental or other forms of transferring ownership; [Sec. 208.2, RA 8293] (3) The right to authorize the commercial rental to the public of the original and copies of their sound recordings, even after distribution by them by or pursuant to authorization by the producer. [Sec. 208.3, RA 8293] (4) If a sound recording published for commercial purposes, or a reproduction of such sound recording, is used directly for broadcasting or for other communication to the public, or is publicly performed with the intention of making and enhancing profit, a single equitable remuneration for the performer or performers, and the producer of the sound recording shall be paid by the user to both the performers and the producer, who, in the absence of any agreement shall share equally. [Sec. 209, RA 8293]

E.7. RIGHTS OF ORGANIZATIONS

BROADCASTING

(1) The rebroadcasting of their broadcasts; [Sec. 211.1, RA 8293] (2) The recording in any manner, including the making of films or the use of video tape, of their broadcasts for the purpose of 293

UP LAW BOC


communication to the public of television broadcasts of the same; [Sec. 211.2, RA 8293] (3) The use of such records for fresh transmissions or for fresh recording. [Sec. 211.3, RA 8293]

MERCANTILE LAW

been held that the playing of music in dine and dance establishments which was paid for by the public in purchases of food and drink constitute performance for public. The music provided for is for the purpose of entertaining and amusing customers in order to make the establishment more attractive and desirable. The expenses entailed thereby are added to the overhead of the restaurant which are either eventually charged to the price of the food and drink or the overall total of additional income produced by the bigger volume of business which the entertainment was programmed to attract. Nevertheless, the there is no infringement of copyright law as the composers in this case waived their right in favour of the public when they allowed their intellectual creations to become property of public domain. [Filipino Society of Composers vs Benjamin Tan 148 SCRA 461 (1987)]

Must-Carry Rule: Prevents cable television companies from excluding broadcasting organization especially in those places not reached by signal. Also, the rule prevents cable television companies from depriving viewers in far-flung areas the enjoyment of programs available to city viewers. [ABS-CBN Broadcasting vs. Philippine Multi-Media System (2009)] Limitations on Protection Sections 203, 208 and 209 shall not apply where the acts referred to in those Sections are related to: (1) The use by a natural person exclusively for his own personal purposes; (2) Using short excerpts for reporting current events; (3) Use solely for the purpose of teaching or for scientific research; and (4) Fair use of the broadcast subject to certain conditions. (Sec. 212, RA 8293)

Term of Protection Works

Term

For performances not Fifty (50) years from incorporated in the end of the year in recordings which the performance took place [Sec. 215.1(a), RA 8293]

The issue in this case as WON the playing and signing of musical compositions which have been copyrighted under the provisions of the copyright law inside the restaurant constitute a performance for profit? The court ruled that the word “perform” as used in the ACT has been applied to one who plays a musical composition on a piano, thereby producing in the air sound waves which are heard as a music… and if the instrument he plays on is a piano plus a broadcasting apparatus, so that the waves are thrown out, not only upon the air but upon others, then he also performing a musical composition. In relation thereto it has

294

For sound or image and sound recordings and for performances incorporated therein

Fifty (50) years from the end of the year in which the recording took place. [Sec. 215.1(b), RA 8293]

Broadcasts

Twenty (20) years from the date the broadcast took place [Sec. 215.2, RA 8293]

UP LAW BOC


MERCANTILE LAW

F. RULES ON OWNERSHIP OF COPYRIGHT F.1. OWNERSHIP OF COPYRIGHT Work

Ownership

Single Creator of an Original Work

Belongs to the author of the work [Sec. 178.1, RA 8293]

Works of Joint Authorship

Belongs of the co-authors; in the absence of agreement, their rights shall be governed by the rules on co-ownership. However, if the work consists of parts that can be used separately and identified, the author of each part owns the copyright of the part he has created. [Sec. 178.2, RA 8293; Asked in ‘95, ‘04]

Work created during the course of employment

Belongs to the employee if the creation is not a part of his regular duties, even if he used the time, facilities and materials of the employer. However, belongs to the employer if the work is in the performance of the employee’s regular duties unless there is an agreement to the contrary. [Sec. 178.3, RA 8293; Asked in ‘08]

The person who commissioned the work holds Work commissioned by a person other than the ownership of the work per se, but copyright remains employer with the creator unless there was a stipulation to the contrary. [Sec. 178.4, RA 8293; Asked in ‘95, ‘04]

Audio visual works

Belongs to the producer, author of the scenario, composer of the music, film director, and author of the adapted work. However, subject to stipulations, the producers shall exercise the copyright as may be required for the exhibition of the work, except for the right to collect license fees for the performance of musical compositions in the work. [Sec. 178.5, RA 8293]

Letters

Belongs to the writer, but the court may authorize their publication or dissemination of the public good or interest of justice requires, pursuant to Art. 723, New Civil Code. [Sec. 178.6, RA 8293]

Anonymous and pseudonymous works

Publishers are deemed to represent the authors, unless the contrary appears, the pseudonyms or adopted names leave no doubt as to the author’s identity or if the author discloses his identity. [Sec. 179, RA 8293]

Collective works

A contributor is deemed to have waived his right unless he expressly reserves it. [Sec. 196, RA 8293] 295

UP LAW BOC


MERCANTILE LAW

F.2. DURATION OF COPYRIGHT Works

Term

Original Literary and Artistic Works including Lifetime of author and for fifty (50) years after his Posthumous Works death [Sec 213.1, RA 8293] Derivative Works including Posthumous Works

Lifetime of author and for fifty (50) years after his death [Sec 213.1, RA 8293]

Joint Authorship

Lifetime of the last surviving author and for fifty (50) years after his death [Sec 213.2, RA 8293]

Anonymous or Pseudonymous Works

Fifty (50) years from date of first lawful publication [Sec. 213.3, RA 8293]

Applied Art

Twenty-five (25) years from date of making [Sec. 213.4, RA 8293]

Published Photographic Works

Fifty (50) years from publication [Sec. 213.5, RA 8293]

Unpublished Photographic Works

Fifty (50) years from the making [Sec. 213.5, RA 8293]

Published Audio-visual Works

Fifty (50) years from publication [Sec. 213.6, RA 8293]

Unpublished Audio-visual Works

Fifty (50) years from the making [Sec. 213.6, RA 8293]

F.3. PRESUMPTION OF AUTHORSHIP

F.4. TRANSFER OR ASSIGNMENT OF COPYRIGHT

The natural person whose name is indicated on a work in the usual manner as the author shall, in the absence of proof to the contrary, be presumed to be the author of the work. This provision shall be applicable even if the name is a pseudonym, where the pseudonym leaves no doubt as to the identity of the author. The person or body, corporate whose name appears on an audio-visual work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the maker of said work. [Sec. 219, RA 8293]

The copyright may be assigned or licensed in whole or in part. Within the scope of the assignment or license, the assignee or licensee is entitled to all the rights and remedies which the assignor or licensor had with respect to the copyright. [Sec. 180.1, RA 8293 as amended by RA 10372] The copyright is not deemed assigned or licensed inter vivos in whole or in part unless there is a written indication of such intention. [Sec. 180.2, RA 8293 as amended by RA 10372]

The term of protection subsequent to the death of the author shall run from the date of his death or of publication, but such terms shall always be deemed to begin on the first day of January of the year following the event which gave rise to them. [Sec. 214, RA 8293]

The submission of a literary, photographic or artistic work to a newspaper, magazine or periodical for publication shall constitute only a license to make a single publication unless a greater right is expressly granted. If two (2) or 296

UP LAW BOC


more persons jointly own a copyright or any part thereof, neither of the owners shall be entitled to grant licenses without the prior written consent of the other owner or owners. [Sec. 180.3, RA 8293]

MERCANTILE LAW

computer program with other programs. This may also constitute fair use [Sec. 185.1, RA 8293]. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [Sec 185.2, RA 8293]

The copyright is distinct from the property in the material object subject to it. Consequently, the transfer, assignment or licensing of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work imply transfer, assignment or licensing of the copyright. [Sec. 181, RA 8293 as amended by RA 10372]

Factors to consider in determining Fair Use (1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work [Sec. 185.1, RA 8293; (Harper & Row v. Nation Enterprise, 471 US 539, 105 S.Ct. 2218, 85 L.Ed.2d 588]

The owners of copyright and related rights or their heirs may designate a society of artists, writers, composers and other right-holders to collectively manage their economic or moral rights on their behalf. For the said societies to enforce the rights of their members, they shall first secure the necessary accreditation from the Intellectual Property Office. [Sec. 183, RA 8293 as amended by RA 10372]

The format of a show is not copyrightable. [Joaquin vs Drilon 302 SCRA 225 (1999)]

G. LIMITATIONS ON COPYRIGHT

A compilation is not copyrightable per se, but it is copyrightable only if its facts have been selected, coordinated, or arranged in such a way that the resulting work as a while constitutes an original work of authorship. Otherwise known as the Sweat of the Brow or Industrious Collection Test. [Feist Publications Inc vs. Rural Tel Service 499 US 340 (1991)]

G.1. DOCTRINE OF FAIR USE The fair use of copyrighted work for criticism, news reporting, teaching (including multiple copies for classroom use), research and similar purposes is not an infringement of copyright. A privilege, in persons other than the owner of the copyright, to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner by the copyright. It is meant to balance the monopolies enjoyed by the copyright owner with the interests of the public and of society.

An exception is carved out for lawyers and officers of the court against plagiarism when writing judicial documents that will be part of court record. [In the Matter of the Charges of Plagiarism etc Against Associate Justice Mariano C. Del Castillo AM No 10-7-17-SC (2011)]

Decompilation - Refers to the reproduction of the code and translation of the forms of the computer program to achieve the interoperability of an independently created 297

UP LAW BOC


G.2. COPYRIGHT INFRINGEMENT

MERCANTILE LAW

copying, assembling, packaging to marketing, including the mere offering for sale of counterfeit goods. [Microsoft Corp vs. Maxicorp Inc. (2004)]

Infringement of Copyright and Related Rights: means any violation of the rights under the Intellectual Property Code and/or the applicable Intellectual Property Law, including the act of any person who at the time when copyright subsists in a work has in his possession an article which he known, or ought to know, to be an infringing copy of the work f or the purpose of: (1) Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the article (2) Distributing the article for purpose of trade, or for any other purpose to an extent that will prejudice the rights of the copyright owner in the work; or (3) Trade exhibit of the article in public. [Sec. 1(l), Rule 1, Rules and Regulations on Administrative Complaints for Violation of Laws involving Intellectual Property Rights]

A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases, did not know what works he was indirectly copying, or did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he copied at his peril. In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute a piracy. [Columbia Pictures v. CA (1996)]

Infringement consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright. For there to be substantial reproduction of a book, it does not necessarily require that the entire copyrighted work, or even a large portion of it, be copied. If so much is taken that the value of the original work is substantially diminished, there is an infringement of copyright and to an injurious extent, the work appropriated. It is no defense that the pirate did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he copied at his peril. In cases of infringement, copying alone is not what is prohibited. The copying must produce an “injurious effect.” [Habana et al vs. Robles et al. (1999)]

The following shall NOT constitute infringement of copyright: (1) Recitation or performance of a work once it has been made accessible to the public if (1) privately done AND free of charge OR (2) strictly for a charitable or religious institution; [Sec. 184.1(a), RA 8293] (2) Making of quotations from a published work: (i) compatible with fair use, (ii) extent is justified by the purpose, (iii) source and name of the author, appearing on work, must be mentioned; [Sec. 184.1(b), RA 8293] (3) Reproduction or communication to the public by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other works, delivered in public: (i) for information purposes, (ii) not expressly reserved, and (iii) source is already indicated; [Sec. 184.1(c), RA 8293]

Copyright infringement and unfair competition are not limited to the act of selling counterfeit goods. They cover a whole range of acts from 298

UP LAW BOC


(4) Reproduction and communication to the public of literary, scientific or artistic works as part of reports of current events by means of photography, cinematography or broadcasting to the extent necessary for the purpose; [Sec. 184.1(d), RA 8293] (5) Inclusion of a work in a publication, broadcast or other communication to the public, sound recording or film if made by way of illustration for teaching purposes compatible with fair use and the source and the name of the author appearing on work, must be mentioned; [Sec. 184.1(e), RA 8293] (6) Recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of schools, universities or educational institutions. Such recording must be deleted within a reasonable period; such recording may not be made from audio-visual works which are part of the general cinema, repertoire of feature films except of brief excerpts of the work; [Sec. 184.1(f), RA 8293] (7) Making of ephemeral recordings; (i) by a broadcasting organization, (ii) by means of its work or facilities, (iii) for use in its own broadcast; [Sec. 184.1(g), RA 8293] (8) Use made of a work by or under the direction or control of the government for public interest compatible with fair use; [Sec. 184.1(h), RA 8293] (9) Public performance or the communication to the public of a work in a place where no admission fee is charged by a club on institution for charitable or educational purpose only and the aim is not profitmaking; [Sec. 184.1(i), RA 8293] (10) Public display of the original or a copy of the work not made by means of a film, slide, television, image or otherwise on screen or by means of any other device or process either the work has been published, sold, given away, or transferred to another person by the author or his successor in title; [Sec. 184.1(j), RA 8293]

MERCANTILE LAW

(11) Use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner. [Sec. 184.1(k), RA 8293] (12) The reproduction or distribution of published articles or materials in a specialized format exclusively for the use of the blind, visually- and reading-impaired persons: Provided, That such copies and distribution shall be made on a nonprofit basis and shall indicate the copyright owner and the date of the original publication. [Sec. 184.1(l), RA 8293 as amended by RA 10372] Reproduction of Published Work General Rule: The private reproduction of a published work in a single copy, where the reproduction is made by a natural person exclusively for research and private study, shall be permitted, without the authorization of the owner of copyright in the work. [Sec. 187.1, RA 8293] Exceptions: Such permission shall not extend to: (1) A work of architecture in the form of building or other construction; (2) An entire book, or a substantial part thereof, or of a musical work in graphic form by reprographic means; (3) A compilation of data and other materials; (4) A computer program except as provided in Section 189; and (5) Any work in cases where reproduction would unreasonably conflict with a normal exploitation of the work or would otherwise unreasonably prejudice the legitimate interests of the author. [187.2, RA 8293] Reprographic Reproduction by Libraries Any library or archive whose activities are not for profit may, without the authorization of the author of copyright owner, make a single copy of the work by reprographic reproduction: (1) Where the work by reason of its fragile character or rarity cannot be lent to user in its original form; 299

UP LAW BOC


(2) Where the works are isolated articles contained in composite works or brief portions of other published works and the reproduction is necessary to supply them, when this is considered expedient, to persons requesting their loan for purposes of research or study instead of lending the volumes or booklets which contain them; and (3) Where the making of such a copy is in order to preserve and, if necessary in the event that it is lost, destroyed or rendered unusable, replace a copy, or to replace, in the permanent collection of another similar library or archive, a copy which has been lost, destroyed or rendered unusable and copies are not available with the publisher. [Sec. 188.1, RA 8293]

MERCANTILE LAW

obtained copy of the computer program is lost, destroyed or rendered unusable. [Sec. 189.1, RA 8293] No copy or adaptation mentioned in this Section shall be used for any purpose other than the ones determined in this Section, and any such copy or adaptation shall be destroyed in the event that continued possession of the copy of the computer program ceases to be lawful. [Sec. 189.2, RA 8293] Importation for Personal Purposes The importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances: (1) When copies of the work are not available in the Philippines and: (a) Not more than one (1) copy at one time is imported for strictly individual use only; or (b) The importation is by authority of and for the use of the Philippine Government; or (c) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines. (2) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, that such copies do not exceed three (3). [Sec. 190.1, RA 8293 is repealed by RA 10372]

It shall not be permissible to produce a volume of a work published in several volumes or to produce missing tomes or pages of magazines or similar works, unless the volume, tome or part is out of stock: Provided, That every library which, by law, is entitled to receive copies of a printed work, shall be entitled, when special reasons so require, to reproduce a copy of a published work which is considered necessary for the collection of the library but which is out of stock. [Sec. 188.2, RA 8293)] Reproduction of Computer Program The reproduction in one (1) back-up copy or adaptation of a computer program shall be permitted, without the authorization of the author of, or other owner of copyright in, a computer program, by the lawful owner of that computer program: Provided, That the copy or adaptation is necessary for: (a) The use of the computer program in conjunction with a computer for the purpose, and to the extent, for which the computer program has been obtained; and (b) Archival purposes, and, for the replacement of the lawfully owned copy of the computer program in the event that the lawfully

Copies imported as allowed by this Section may not lawfully be used in any way to violate the 300

UP LAW BOC


rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor's right of action. [Sec. 190.2, RA 8293 is repealed by RA 10372]

The following are specific rules applicable in IPR Cases: (a) Rules 2-9 of the RoC shall apply to all civil actions for violation of intellectual property rights under RA 8293 and other violations of intellectual property rights as may be defined by law. (b) Special Commercial Courts in Quezon City, Makati, Manila, and Pasig shall have authority to act on applications for the issuance of writs of search and seizure in civil actions for violations of the Code, enforceable nationwide. Special Commercial Courts have concurrent jurisdiction over applications enforceable within their own jurisdiction for violations within the judicial region. (c) It shall be the duty of the Clerk of Court to notify the Director-General of the Intellectual Property Office of any action involving a copyright, trademark, service mark, patent, industrial design, utility model, undisclosed information, and technology transfer agreement.

Importation and Exportation of Infringing Materials. – Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation or exportation of infringing articles prohibited under Part IV of this Act and under relevant treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported [Sec. 190, RA 8293 as amended by RA 10372]

IV. Rules of Procedure for Intellectual Property Rights Cases (A.M. No. 10-3-10 SC)

C. COMMENCEMENT OF CIVIL ACTION C.1. PLEADINGS: The only pleadings allowed to be filed are the complaints, compulsory counterclaims, and cross-claims pleaded in the answer, and the answers thereto. All of them shall be verified.

A. IN WHAT COURTS APPLICABLE These Rules shall be observed by Regional Trial Courts designated by the Supreme Court as Special Commercial Courts.

B. APPLICABILITY RULES

OF

MERCANTILE LAW

C.2. WHO MAY FILE: (a) Any IPR owner, or anyone possessing any right, title, or interest under claim of ownership in any IPR, whose right may have been violated; (b) Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement relating to IPR or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to Filipinos by law;

REGULAR

General Rule: The Rules of Court (RoC) shall apply suppletorily to these Rules. Exception: When the civil or criminal action involves complex issues, the Court shall issue a special order that the regular procedure prescribed in the RoC.

301

UP LAW BOC


(c) Any foreign national or juridical person who meets the requirements of the preceding paragraph, and does not engage business in the Philippines.

MERCANTILE LAW

Applicant has 31 days from issuance of writ to file a case before the appropriate court or quasijudicial agency. For failure to file a case, the Court may, upon motion of the owner of the seized goods, order the return of such goods. Such motion must be filed within 60 days from the expiration of the period to file cases.

C.3. FORM AND CONTENTS OF THE PETITION: (1) Full names of parties to the case; (2) Facts showing capacity of parties to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party; (3) ultimate facts showing the cause of action (4) reliefs sought; (5) an affidavit in question-and-answer format must be attached to the complaint. Such affidavit shall state only the facts of direct personal knowledge to the affiants which are admissible in evidence, and shows the competence of the affiants to testify. (6) Certificate of non-forum shopping.

If the owner fails to file the motion, the Court may dispose of the goods after notice and hearing.

C.6. SUMMONS: Summons shall be served no later than 5 days from receipt of the complaint.

C.7. ANSWER: Must be filed 15 days afer service of summons; 10 days if answer to compulsory counterclaim or cross-claim.

C.4. PROHIBITED PLEADINGS:

Should the defendant fail to answer, the Court may, motu proprio or upon motion of the plaintiff, render judgment based on the affidavits and the evidence on record unless it requires the submission of additional evidence.

(a) Motion to dismiss (b) Motion for bill of particulars (c) Motion for reconsideration of a final order judgment, except with regard to an order of destruction (d) Reply (e) Petition for relief from judgment (f) Motion for extention of time to submit pleadings, except for meritorious reasons (g) Motion for postponement intended for delay (h) Third-party complaint (i) Intervention (j) Motion to hear affirmative defenses (k) Any petition or motion with similar effect to the foregoing.

D. MODES OF DISCOVERY A party may avail of the different modes of discovery not later than 30 days from the joinder of issues. Any objection must be made within 10 days from receipt of the request for discovery and only on the ground that the matter requested is manifestly incompetent, irrelevant, immaterial, privileged in nature or for harassment.

C.5. FAILURE TO FILE COMPLAINT WHERE A WRIT OF SEARCH AND SEIZURE IS ISSUED:

A comment on the objection may be made in writing within 3 days from receipt of the same. The Court then has 10 days to decide on the objection.

302

UP LAW BOC


Compliance with any mode of discovery shall be made within 10 days from receipt of the request for discovery, or from notice of the ruling of the court.

MERCANTILE LAW

G. COMMENCEMENT OF CRIMINAL ACTION A criminal action is commenced by the filing of an information after a prior verified complaint is filed under Rule 112 of the RoC.

Sanctions provided in the RoC in relation to the modes of discovery shall apply.

H. COMMON RULES ADMISSIBILITY OF EVIDENCE

E. PRE-TRIAL The Court shall set the case for pre-trial 5 days after the after the period for availing modes of discovery or compliance whichever comes later.

ON

Good faith NOT a defense, unless the defendant or accused claims to be a prior user.

The Court shall then direct the parties to appear before the Philippine Mediation Center in accordance with mediation rules. Should parties fail to settle the case at mediation, the Court shall conduct JDR conferences.

All official records kept in a foreign country, including certificates of registration, are admissible in the Philippines if authenticated by the consular office of the Philippines having jurisdiction over the country where such records are kept.

If either fails, the case shal be sent back to the court for pre-trial.

Authentication of documents may be subject of agreement of the parties.

F. CLARIFICATORY HEARINGS AND TRIAL

The deposition of foreign witnesses must be made 6 months following the order of deposition, unless failure to take the deposition is caused by fortuitous event, fraud, accident, mistake, or excusable negligence.

Clarificatory hearings must be conducted within 30 days from pre-trial, to be completed not later than 15 days thereafter. Immediately after the termination of the clarificatory hearings the parties must submit their position papers within 10 days.

Presumptions in the Intellectual Property Code shall apply to these Rules.

I. EVIDENCE IN PATENT CASES The judicial affidavits attached to the position papers shall serve as the direct testimony of the witnesses, subject to cross-examination.

Subject matter is a patent for process for obtaining a product: Any identical product is presumed to have been obtained through the use of the patented process if: (1) The product is new; (2) There is substantial likelihod that the product was made by the process and that the owner of the patent has been unable, despite reasonable efforts, to determine the process actually used.

The period of trial shall be 30 days allotted to the plaintiff and defendant. After an oral ruling on the last offer of evidence, the Court shall direct the parties to submit their respective draft decisions within a nonextendible period of 30 days from receipt of order.

303

UP LAW BOC


In such cases the Court shall order the defendant/accused to show that the the process he used to obtain the identical product is different from the patented process.

MERCANTILE LAW

In determining likelihood of confusion, the Court must consider the general impression of the ordinary purchaser, buying under the normally prevalent conditions of trade, and giving such attention buyers normally give in buying that class of goods.

Presumptions concerning patents: (1) A letters patent issued by the IPO is prima facie evidence of its existence and validity during the term specified, unless cancelled or voided by final judgment. (2) Letters patent issued by the IPO are presumed to have been validly issued unless overcome by evidence of irregularity. (3) It is presumed that the defendant/accused is aware of the existence of the patent if the words "Philippine patent" with the patent number are written on: (a) the patented invention or the product manufactured using the patented process (b) on the container or the package in which said article is supplied to the public (c) on the advertising material related to the patented invention or process.

The following factors are taken into account: (1) Strength of the plaintiff's mark (2) Degree of similarity between the plaintiff's and the defendan's marks (3) Proximity of the products or services. (4) Likelihood that the plaintiff will bridge the gap (5) Evidence of actual confusion (6) Defendant's good faith in adopting the mark (7) Quality of the defendant's service (8) Sophistication of the buyers "Colorable imitation" - denotes a close or ingenious imitation as calculated to deceive ordinary persons, or such a resemblance to the original as to deceive an ordinary purchaser giving such attention as a purchaser usually gives, as to cause him to purchase the one supposing it to be the other.

J. EVIDENCE IN TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION CASES

Intent to Defraud There is a presumption of an intent to defraud: (1) When the defendant passess of a product as his by using imitative devices, signs, or marks on the general appearance of the goods, misleading purchasers into buying his merchandise under the impression that they are buying that of his competitors. (2) When the defendant makes a false statement in the course of trade to discredit the goods and business of another. (3) Where the similarity of the goods as packed and offered for sale is so striking.

A certificate of registration shall be prima facie evidence of: (1) The validity of the registration (2) The registrant's ownership of the mark (3) The registrant's right to exclusively use the same Determination of a well-known mark: Knowledge of the relevant sector of the public, rather than the knowledge of the general public, shall be taken into account. (for the criteria in determining a well-known mark, see Determinants, supra.)

K. EVIDENCE IN COPYRIGHT CASES

Likelihood of confusion: 304

UP LAW BOC


Presumption of Copyright Copyright is presumed to subsist and ownership thereof shall be presumed to belong to the complainant if he so claims through affidavit evidence, unless defendant attaches proof to the contrary in his answer to the complaint.

MERCANTILE LAW

The hearing shall be summary in nature with notice of hearing addressed to defendant to afford him opportunity to oppose the motion. Conditions for the Order of Destruction (a) Inventory and photographs of the seized infringing goods taken before destruction (b) Taking and inventory must be witnessed by the (i) accused, counsel or agent; (ii) the complainant, his representative, or counsel, (c) A representative sample of the seized goods must be retained for evidentiary purposes (d) An inventory of the samples must have been made (e) The officer authorized to supervise the destruction has submitted a report thereon within 5 days from the date of the destruction (f) Posting of a bond by the applicant

Mere denial of the subsistence of the copyright based on lack of knowledge shall not be sufficient to rebut the presumption. Effect of registration and deposit Registration and deposit of copyrighted work is not a condition sine qua non to a claim of copyright infringement. Presumption of authorship (supra.) International registration of works A statement concerning a work, recorded in an international register in accordance with an international treaty to which the Philippines is or may become a party, shall be construed as true until the contrary is proved, except: (a) Where the statement cannot be valid under the Intellectual Property Code or any other law concerning intellectual property; (b) Where the statement is contradicted by another statement in the register.

L. ORDER OF DESTRUCTION At any time after the filing of the complaint or information, the Court, upon motion and after due notice and hearing where the violation of the intellectual property rights of the owner is established, may order the destruction of the seized infringing goods, objects and devices, including but not limited to, sales invoices, other documents evidencing sales, labels, signs, prints, packages, wrappers, receptacles, and advertisements and the like used in the infringing act.

305

UP LAW BOC

SPECIAL LAWS

MERCANTILE LAW

MERCANTILE LAW

SPECIAL LAWS

306

UP LAW BOC

SPECIAL LAWS

I. The Chattel Mortgage Law and Real Estate Mortgage Law

MERCANTILE LAW

managing securities or rendering services as investment agent, advisor, or consultant, (ii) mutual funds, close-end investment companies, common trust funds, pre-need companies and other similar entities,

(Now part of Civil Law)

(iii) foreign exchange corporations, money changers, money payment, remittance, and transfer companies and other similar entities, and

II. Anti-Money Laundering Act (R.A. 9160, as amended by R.A. 9194)

(iv) other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by the Securities and Exchange Commission (Sec. 3 [a])

Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. (Sec. 4)

A. POLICY OF THE LAW

RA 10365 (Amending RA 9160, approved February 15, 2013 and took effect on March 7, 2013) referred to the foregoing as “Covered Persons” and added the following persons:

It is the policy of the State to protect and preserve the integrity and confidentiality of bank accounts and to ensure that the Philippines shall not be used as a money laundering site for the proceeds of any unlawful activity. Consistent with its foreign policy, the State shall extend cooperation in transnational investigations and prosecutions of persons involved in money laundering activities whenever committed. (Sec. 2)

(4) jewelry dealers in precious metals, who, as a business, trade in precious metals, for transactions in excess of One million pesos (P1,000,000.00); (5) jewelry dealers in precious stones, who, as a business, trade in precious stones, for transactions in excess of One million pesos (P1,000,000.00); (6) company service providers which, as a business, provide any of the following services to third parties: (i) acting as a formation agent of juridical persons; (ii) acting as (or arranging for another person to act as) a director or corporate secretary of a company, a partner of a partnership, or a similar position in relation to other juridical persons; (iii) providing a registered office, business address or accommodation, correspondence or administrative address for a company, a partnership or any other

B. COVERED INSTITUTIONS (1) Banks, non-banks, quasi-banks, trust entities, and all other institutions and their subsidiaries and affiliates supervised or regulated by the Banko Sentral ng Pilipinas (BSP); (2) Insurance companies and all other institutions supervised or regulated by the Insurance Commission; (3) (i) securities dealers, brokers, salesmen, investment houses and other similar entities

307

UP LAW BOC

SPECIAL LAWS

legal person or arrangement; and (iv) acting as (or arranging for another person to act as) a nominee shareholder for another person; and (7) persons who provide any of the following services: i. managing of client money, securities or other assets; ii. management of bank, savings or securities accounts; iii. organization of contributions for the creation, operation or management of companies; and iv. creation, operation or management of juridical persons or arrangements, and buying and selling business entities.

verifying their legal existence and organizational structure, as well as the authority and identification of all persons purporting to act on their behalf. The provisions of existing laws to the contrary notwithstanding, anonymous accounts, accounts under fictitious names, and all other similar accounts shall be absolutely prohibited. Peso and foreign currency non-checking numbered accounts shall be allowed. The BSP may conduct annual testing solely limited to the determination of the existence and true identity of the owners of such accounts. Record Keeping All records of all transactions of covered institutions shall be maintained and safely stored for five (5) years from the dates of transactions.

Notwithstanding the foregoing, the term ‘covered persons’ shall exclude lawyers and accountants acting as independent legal professionals in relation to information concerning their clients or where disclosure of information would compromise client confidences or the attorney-client relationship: Provided, That these lawyers and accountants are authorized to practice in the Philippines and shall continue to be subject to the provisions of their respective codes of conduct and/or professional responsibility or any of its amendments. (Sec. 1, RA 10365)

C. OBLIGATIONS INSTITUTIONS

OF

MERCANTILE LAW

With respect to closed accounts, the records on customer identification, account files and business correspondence, shall be preserved and safely stored for at least five (5) years from the dates when they were closed. Reporting of Covered and Suspicious Transactions Covered institutions shall report to the AMLC all covered transactions and suspicious transactions within five (5) working days from occurrence thereof, unless the Supervising Authority prescribes a longer period not exceeding ten (10) working days.

COVERED

(1) Customer Identification (2) Record Keeping (3) Reporting of Covered and Suspicious Transactions (Sec. 9)

Should a transaction be determined to be both a covered transaction and a suspicious transaction, the covered institution shall be required to report the same as a suspicious transaction.

Customer Identification Covered institutions shall establish and record the true identity of its clients based on official documents. They shall maintain a system of verifying the true identity of their clients and, in case of corporate clients, require a system of

When reporting covered or suspicious transactions to the AMLC, covered institutions and their officers and employees 308

UP LAW BOC

SPECIAL LAWS

[,representatives, agents, advisors, consultants or associates not included; repealed by RA 9194] shall not be deemed to have violated Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791 and other similar laws, but are prohibited from communicating, directly or indirectly, in any manner or by any means, to any person, the fact that a covered or suspicious transaction report was made, the contents thereof, or any other information in relation thereto. In case of violation thereof, the concerned officer and employee of the covered institution shall be criminally liable. However, no administrative, criminal or civil proceedings, shall lie against any person for having made a covered or suspicious transaction report in the regular performance of his duties in good faith, whether or not such reporting results in any criminal prosecution under this Act or any other law.

MERCANTILE LAW

“Lawyers and accountants acting as independent legal professionals are not required to report covered and suspicious transactions if the relevant information was obtained in circumstances where they are subject to professional secrecy or legal professional privilege. “x x x “x x x “When reporting covered or suspicious transactions to the AMLC, covered persons and their officers and employees are prohibited from communicating, directly or indirectly, in any manner or by any means, to any person or entity, the media, the fact that a covered or suspicious transaction has been reported or is about to be reported, the contents of the report, or any other information in relation thereto. Neither may such reporting be published or aired in any manner or form by the mass media”, electronic mail, or other similar devices. In case of violation thereof, the concerned officer and employee of the covered person and media shall be held criminally liable.”

When reporting covered or suspicious transactions to the AMLC, covered institutions and their officers and employees are prohibited from communicating directly or indirectly, in any manner or by any means, to any person or entity, the media, the fact that a covered or suspicious transaction report was made, the contents thereof, or any other information in relation thereto. Neither may such reporting be published or aired in any manner or form by the mass media, electronic mail, or other similar devices. In case of violation thereof, the concerned officer and employee of the covered institution and media shall be held criminally liable.

D. COVERED TRANSACTIONS A transaction in cash or other equivalent monetary instrument involving a total amount in excess of five hundred thousand pesos (P500,000.00) within one banking day. (Sec. 3 [b], as amended by Sec. 1 of RA 9194)

Sec. 7 of RA 10365 amended the foregoing to read as follows: “Covered persons shall report to the AMLC all covered transactions and suspicious transactions within five (5) working days from occurrence thereof, unless the AMLC prescribes a different period not exceeding fifteen (15) working days.

E. USPICIOUS TRANSACTIONS Transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist: (1) There is no underlying legal or trade obligation, purpose or economic justification; 309

UP LAW BOC

SPECIAL LAWS

(2) The client is not properly identified; (3) The amount involved is not commensurate with the business or financial capacity of the client; (4) Taking into account all known circumstances, it may be perceived that the client’s transaction is structured in order to avoid being the subject of reporting requirements under the Act; (5) Any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the client’s past transactions with the covered institution; (6) The transaction is in anyway related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or (7) Any transaction that is similar or analogous to any of the foregoing (Sec. 3 [b-1], added by Sec. 2 of RA 9194)

MERCANTILE LAW

(3) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so. (Sec. 4) Sec. 4 of RA 10365 amends this section as follows: Money laundering is committed by any person who, knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity: (a) transacts said monetary instrument or property; (b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property; (c) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property; (d) attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c); (e) aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above; and (f) performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraphs (a), (b) or (c) above.

F. WHEN IS MONEY LAUNDERING COMMITTED Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following: (1) Any person knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property. (2) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above.

Money laundering is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so.

310

UP LAW BOC

G. UNLAWFUL ACTIVITIES PREDICATE CRIMES

SPECIAL LAWS

MERCANTILE LAW

known as the Securities Regulation Code of 2000; (14) Felonies or offenses of a similar nature that are punishable under the penal laws of other countries. (Sec. 3 [i])

OR

Unlawful activity refers to any act or omission or series or combination thereof involving or having direct relation to the following: (1) Kidnapping for ransom under Article 267 of Act No. 3815, otherwise known as the Revised Penal Code, as amended; (2) Sections 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, and 16 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002; (3) Section 3 paragraphs B, C, E, G, H and I of Republic Act No. 3019, as amended; otherwise known as the Anti-Graft and Corrupt Practices Act; (4) Plunder under Republic Act No. 7080, as amended; (5) Robbery and extortion under Articles 294, 295, 296, 299, 300, 301 and 302 of the Revised Penal Code, as amended; (6) Jueteng and Masiao punished as illegal gambling under Presidential Decree No. 1602; (7) Piracy on the high seas under the Revised Penal Code, as amended and Presidential Decree No. 532; (8) Qualified theft under Article 310 of the Revised Penal Code, as amended; (9) Swindling under Article 315 of the Revised Penal Code, as amended; (10) Smuggling under Republic Act Nos. 455 and 1937; (11) Violations under Republic Act No. 8792, otherwise known as the Electronic Commerce Act of 2000; (12) Hijacking and other violations under Republic Act No. 6235; destructive arson and murder, as defined under the Revised Penal Code, as amended, including those perpetrated by terrorists against noncombatant persons and similar targets; (13) Fraudulent practices and other violations under Republic Act No. 8799, otherwise

RA 10365 added the following: (15) Terrorism and conspiracy to commit terrorism as defined and penalized under Sections 3 and 4 of Republic Act No. 9372 (16) Financing of terrorism under Section 4 and offenses punishable under Sections 5, 6, 7 and 8 of Republic Act No. 10168, otherwise known as the Terrorism Financing Prevention and Suppression Act of 2012: (17) Bribery under Articles 210, 211 and 211-A of the Revised Penal Code, as amended, and Corruption of Public Officers under Article 212 of the Revised Penal Code, as amended; (18) Frauds and Illegal Exactions and Transactions under Articles 213, 214, 215 and 216 of the Revised Penal Code, as amended; (19) Malversation of Public Funds and Property under Articles 217 and 222 of the Revised Penal Code, as amended; (20) Forgeries and Counterfeiting under Articles 163, 166, 167, 168, 169 and 176 of the Revised Penal Code, as amended; (21) Violations of Sections 4 to 6 of Republic Act No. 9208, otherwise known as the AntiTrafficking in Persons Act of 2003; (22) Violations of Sections 78 to 79 of Chapter IV, of Presidential Decree No. 705, otherwise known as the Revised Forestry Code of the Philippines, as amended; (23)Violations of Sections 86 to 106 of Chapter VI, of Republic Act No. 8550, otherwise known as the Philippine Fisheries Code of 1998; (24) Violations of Sections 101 to 107, and 110 of Republic Act No. 7942, otherwise known as the Philippine Mining Act of 1995; (25) Violations of Section 27(c), (e), (f), (g) and (i), of Republic Act No. 9147, otherwise 311

UP LAW BOC

SPECIAL LAWS

known as the Wildlife Resources Conservation and Protection Act; (26) Violation of Section 7(b) of Republic Act No. 9072, otherwise known as the National Caves and Cave Resources Management Protection Act; (27) Violation of Republic Act No. 6539, otherwise known as the Anti-Carnapping Act of 2002, as amended; (28) Violations of Sections 1, 3 and 5 of Presidential Decree No. 1866, as amended, otherwise known as the decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or Explosives; (29) Violation of Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law; (30) Violation of Section 6 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act No. 10022; (31) Violation of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines; (32)Violation of Section 4 of Republic Act No. 9995, otherwise known as the Anti-Photo and Video Voyeurism Act of 2009; (33)Violation of Section 4 of Republic Act No. 9775, otherwise known as the Anti-Child Pornography Act of 2009; (34) Violations of Sections 5, 7, 8, 9, 10(c), (d) and (e), 11, 12 and 14 of Republic Act No. 7610, otherwise known as the Special Protection of Children Against Abuse, Exploitation and Discrimination;

H. ANTI-MONEY COUNCIL

MERCANTILE LAW

the Chairman of the Securities and Exchange Commission as members. (Sec. 7)

H.1. FUNCTIONS The AMLC shall act unanimously in the discharge of its functions as defined hereunder: (1) to require and receive covered or suspicious transaction reports from covered institutions; (2) to issue orders addressed to the appropriate Supervising Authority or the covered institution to determine the true identity of the owner of any monetary instrument or property subject of a covered transaction or suspicious transaction report or request for assistance from a foreign State, or believed by the Council, on the basis of substantial evidence, to be, in whole or in part, wherever located, representing, involving, or related to, directly or indirectly, in any manner or by any means, the proceeds of an unlawful activity. (3) to institute civil forfeiture proceedings and all other remedial proceedings through the Office of the Solicitor General; (4) to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offenses; (5) to investigate suspicious transactions and covered transactions deemed suspicious after an investigation by AMLC, money laundering activities, and other violations of this Act; (6) to apply before the Court of Appeals, ex parte, for the freezing of any monetary instrument or property alleged to be the proceeds of any unlawful activity as defined in Section 3(i) hereof; (7) to implement such measures as may be necessary and justified under this Act to counteract money laundering;

LAUNDERING

The Anti-Money Laundering Council shall be composed of the Governor of the Bangko Sentral ng Pilipinas as chairman, the Commissioner of the Insurance Commission and

312

UP LAW BOC

SPECIAL LAWS

(8)

to receive and take action in respect of, any request from foreign states for assistance in their own anti-money laundering operations provided in this Act; (9) to develop educational programs on the pernicious effects of money laundering, the methods and techniques used in money laundering, the viable means of preventing money laundering and the effective ways of prosecuting and punishing offenders; (10) to enlist the assistance of any branch, department, bureau, office, agency or instrumentality of the government, including government-owned and controlled corporations, in undertaking any and all anti-money laundering operations, which may include the use of its personnel, facilities and resources for the more resolute prevention, detection and investigation of money laundering offenses and prosecution of offenders; and (11) to impose administrative sanctions for the violation of laws, rules, regulations and orders and resolutions issued pursuant thereto. (Sec. 7)

MERCANTILE LAW

I. FREEZING OF MONETARY INSTRUMENT OR PROPERTY The Court of Appeals, upon application ex parte by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, may issue a freeze order which shall be effective immediately. The freeze order shall be for a period not exceeding six (6) months depending upon the circumstances of the case. No court can issue a temporary restraining order or a writ of injunction against any freeze order, except the Supreme Court. (Sec. 10) Sec. 8 of RA 10365 revised the freezing mechanism to be as follows: “Upon a verified ex parte petition by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, the Court of Appeals may issue a freeze order which shall be effective immediately, and which shall not exceed six (6) months depending upon the circumstances of the case: Provided, That if there is no case filed against a person whose account has been frozen within the period determined by the court, the freeze order shall be deemed ipso facto lifted: Provided, further, That this new rule shall not apply to pending cases in the courts. In any case, the court should act on the petition to freeze within twenty-four (24) hours from filing of the petition. If the application is filed a day before a nonworking day, the computation of the twenty-four (24)hour period shall exclude the nonworking days.

Sec. 6 of RA 10365 added the following power to the AMLC: (12) to require the Land Registration Authority and all its Registries of Deeds to submit to the AMLC, reports on all real estate transactions involving an amount in excess of Five hundred thousand pesos (P500,000.00) within fifteen (15) days from the date of registration of the transaction, in a form to be prescribed by the AMLC. The AMLC may also require the Land Registration Authority and all its Registries of Deeds to submit copies of relevant documents of all real estate transactions.

A person whose account has been frozen may file a motion to lift the freeze order and the court must resolve this motion before the expiration of the freeze order.

313

UP LAW BOC

SPECIAL LAWS

No court shall issue a temporary restraining order or a writ of injunction against any freeze order, except the Supreme Court.”

MERCANTILE LAW

related accounts, with any banking institution or non-bank financial institution upon order of any competent court based on an ex parte application in cases of violations of this Act, when it has been established that there is probable cause that the deposits or investments, including related accounts involved, are related to an unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof; except that no court order shall be required in cases involving activities defined in Section 3(i)(1), (2), and (12) hereof, and felonies or offenses of a nature similar to those mentioned in Section 3(i)(1), (2), and (12), which are Punishable under the penal laws of other countries, and terrorism and conspiracy to commit terrorism as defined and penalized under Republic Act No. 9372."

J. AUTHORITY TO INQUIRE INTO BANK DEPOSITS Notwithstanding the provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that— (1) there is probable cause that the deposits OR (2) investments involved are related to an unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof;

"The Court of Appeals shall act on the application to inquire into or examine any deposit or investment with any banking institution or non-bank financial institution within twenty-four (24) hours from filing of the application."

except that no court order shall be required in cases involving unlawful activities defined in Sections 3(i)(1), (2) and (12).

"To ensure compliance with this Act, the Bangko Sentral ng Pilipinas may, in the course of a periodic or special examination, check the compliance of a Covered institution with the requirements of the AMLA and its implementing rules and regulations."

To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into or examine any deposit or investment with any banking institution or non-bank financial institution when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP. (Sec.11)

"For purposes of this section, ‘related accounts’ shall refer to accounts, the funds and sources of which originated from and/or are materially linked to the monetary instrument(s) or property(ies) subject of the freeze order(s)."

Sec. 2 of RA 10167 amended Sec. 11 to read as follows:

"A court order ex parte must first be obtained before the AMLC can inquire into these related Accounts: Provided, That the procedure for the ex parte application of the ex parte court order for the principal account shall be the same with that of the related accounts."

“Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791; and other laws, the AMLC may inquire into or examine any particular deposit or investment, including 314

UP LAW BOC

SPECIAL LAWS

"The authority to inquire into or examine the main account and the related accounts shall comply with the requirements of Article III, Sections 2 and 3 of the 1987 Constitution, which are hereby incorporated by reference."

MERCANTILE LAW

(e) Transfers the authority to freeze any money/property from the AMLC to the Court of Appeals.

III. Foreign Investments Act (R.A. 7042)

Amendments under RA 9194 (a) Lowers the threshold amount for single covered transactions (cash or other equivalent monetary instrument) from P4M to P500,000.00 within one (1) banking day.

A. POLICY OF THE LAW

(c) Authorizes AMLC to inquire into or examine any particular deposit or investment, with any banking institution or non-bank financial institution and their subsidiaries and affiliates upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activity. However, no court order is required in cases involving unlawful activities of kidnapping for ransom, narcotics offenses and hijacking, destructive arson and murder, including those perpetrated by terrorists against non-combatant persons and similar targets.

It is the policy of the State to attract, promote and welcome productive investments from foreign individuals, partnerships, corporations, and governments, including their political subdivisions, in activities which significantly contribute to national industrialization and socio-economic development to the extent that foreign investment is allowed in such activity by the Constitution and relevant laws. Foreign investments shall be encouraged in enterprises that significantly expand livelihood and employment opportunities for Filipinos; enhance economic value of farm products; promote the welfare of Filipino consumers; expand the scope, quality and volume of exports and their access to foreign markets; and/or transfer relevant technologies in agriculture, industry and support services. Foreign investments shall be welcome as a supplement to Filipino capital and technology in those enterprises serving mainly the domestic market.

(d) Authorizes the Bangko Sentral ng Pilipinas to inquire into or examine any deposit or investment with any banking institution or non-bank financial institution and their subsidiaries and affiliates when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP to ensure compliance with R.A. No. 9160, as amended.

As a general rule, there are no restrictions on extent of foreign ownership of export enterprises. In domestic market enterprises, foreigners can invest as much as one hundred percent (100%) equity except in areas included in the negative list. Foreign owned firms catering mainly to the domestic market shall be encouraged to undertake measures that will gradually increase Filipino participation in their businesses by taking in Filipino partners, electing Filipinos to

(b) Expands the reporting requirements to include the reporting of suspicious transactions regardless of the amount involved

315

UP LAW BOC

SPECIAL LAWS

the board of directors, implementing transfer of technology to Filipinos, generating more employment for the economy and enhancing skills of Filipino workers. (Sec. 2)

in domestic corporations duly registered to do business, and/or the exercise of rights as such investor; nor having a nominee director or officer to represent its interests in such corporation; nor appointing a representative or distributor domiciled in the Philippines which transacts business in its own name and for its own account (Sec. 3 [d])

B. DEFINITION OF TERMS B.1. FOREIGN INVESTMENT

B.3. EXPORT ENTERPRISE

An equity investment made by a nonPhilippine national in the form of foreign exchange and/or other assets actually transferred to the Philippines and duly registered with the Central Bank which shall assess and appraise the value of such assets other than foreign exchange. (Sec. 3[c])

B.2. “DOING PHILIPPINES

BUSINESS”

IN

MERCANTILE LAW

An enterprise wherein a manufacturer, processor or service (including tourism) enterprise exports sixty percent (60%) or more of its output, or wherein a trader purchases products domestically and exports sixty percent (60%) or more of such purchases (Sec. 3 [e])

THE

B.4. DOMESTIC MARKET ENTERPRISE An enterprise which produces goods for sale, or renders services to the domestic market entirely or if exporting a portion of its output fails to consistently export at least sixty percent (60%) thereof (Sec. 3 [f])

Includes: (f) soliciting orders, service contracts, opening offices, whether called “liaison” offices or branches; (g) appointing representatives or distributors domiciled in the Philippines or who in any calendar year stay in the country for a period or periods totalling one hundred eighty (180) days or more; (h) participating in the management, supervision or control of any domestic business, firm, entity or corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and object of the business organization

C. REGISTRATION OF INVESTMENTS ON NON-PHILIPPINE NATIONALS Philippine National (1) Citizen of the Philippines (2) Domestic partnership or association wholly owned by citizens of the Philippines (3) Corporation organized under the laws of the Philippines of which at least 60% of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines (4) Corporation organized abroad and registered as doing business in the Philippines under the Corporation Code of which 100% of the capital stock outstanding and entitled to vote is wholly owned by Filipinos

Provided, however, That the phrase “doing business” shall not be deemed to include mere investment as a shareholder by a foreign entity 316

UP LAW BOC

SPECIAL LAWS

(5) A trustee of funds for pension or other employee retirement, where the trustee is a Philippine national and at least 60% of the fund will accrue to the benefit of Philippine nationals

MERCANTILE LAW

national intending to engage in the same line of business as an existing joint venture, in which he or his majority shareholder is a substantial partner, must disclose the fact and the names and addresses of the partners in the existing joint venture in his application for registration with SEC. During the transitory period as provided in Section 15 hereof, SEC shall disallow registration of the applying nonPhilippine national if the existing joint venture enterprise, particularly the Filipino partners therein, can reasonably prove they are capable to make the investment needed for the domestic market activities to be undertaken by the competing applicant. Upon effectivity of this Act, SEC shall effect registration of any enterprise applying under this Act within fifteen (15) days upon submission of completed requirements. (Sec. 5)

Provided, That where a corporation and its nonFilipino stockholders own stocks in a Securities and Exchange Commission (SEC) registered enterprise, at least sixty percent (60%) of the capital stock outstanding and entitled to vote of each of both corporations must be owned and held by citizens of the Philippines and at least sixty percent (60%) of the members of the Board of Directors of each of both corporations must be citizens of the Philippines, in order that the corporation shall be considered a Philippine national (Sec. 3[a]) Registration of Investments on Non-Philippine Nationals Without need of prior approval, a nonPhilippine national may, upon registration with the Securities and Exchange Commission (SEC), or with the Bureau of Trade Regulation and Consumer Protection (BTRCP) of the Department of Trade and Industry in the case of single proprietorships, do business as defined in Section 3 (d) of this Act or invest in a domestic enterprise up to one hundred percent (100%) of its capital, unless participation of nonPhilippine nationals in the enterprise is prohibited or limited to a smaller percentage by existing law and/or under the provisions of this Act. The SEC or BTRCP, as the case may be, shall not impose any limitations on the extent of foreign ownership in an enterprise additional to those provided in this Act: Provided, however, That any enterprise seeking to avail of incentives under the Omnibus Investment Code of 1987 must apply for registration with the Board of Investments (BOI), which shall process such application for registration in accordance with the criteria for evaluation prescribed in said Code: Provided, finally, That a non-Philippine

D. FOREIGN INVESTMENTS EXPORT ENTERPRISE

IN

Foreign investment in export enterprises whose products and services do not fall within Lists A and B of the Foreign Investment Negative List provided under Section 8 hereof is allowed up to one hundred percent (100%) ownership. Export enterprises which are non-Philippine nationals shall register with BOI and submit the reports that may be required to ensure continuing compliance of the export enterprise with its export requirement. BOI shall advise SEC or BTRCP, as the case may be, of any export enterprise that fails to meet the export ratio requirement. The SEC or BTRCP shall thereupon order the non-complying export enterprise to reduce its sales to the domestic market to not more than forty percent (40%) of its total production; failure to comply with such SEC or BTRCP order, without justifiable reason, shall subject the enterprise to cancellation of SEC or BTRCP registration, and/or the penalties provided in Section 14 hereof. (Sec. 6) 317

UP LAW BOC

E. FOREIGN INVESTMENT DOMESTIC MARKET ENTERPRISE

SPECIAL LAWS

MERCANTILE LAW

“Small and medium-sized domestic market enterprises, with paid-in equity capital less than the equivalent two hundred thousand US dollars (US$200,000) are reserved to Philippine nationals, Provided that if: (1) they involve advanced technology as determined by the Department of Science and Technology or (2) they employ at least fifty (50) direct employees, then a minimum paid-in capital of one hundred thousand US dollars (US$100,000.00) shall be allowed to non-Philippine nationals. Amendments to List B may be made upon recommendation of the Secretary of National Defense, or the Secretary of Health, or the Secretary of Education, Culture and Sports, endorsed by the NEDA, approved by the President, and promulgated by a Presidential Proclamation.

IN

Non-Philippine nationals may own up to one hundred percent (100%) of domestic market enterprises unless foreign ownership therein is prohibited or limited by the Constitution existing law or the Foreign Investment Negative List under Section 8 hereof. (Sec. 7)

F. FOREIGN INVESTMENT NEGATIVE LIST The Foreign Investment Negative List shall have two (2) components lists; A, and B. (1) List A shall enumerate the areas of activities reserved to Philippine nationals by mandate of the Constitution and specific laws. (2) List B shall contain the areas of activities and enterprises regulated pursuant to law: a. which are defense-related activities, requiring prior clearance and authorization from Department of National Defense (DND) to engage in such activity, such as the manufacture, repair, storage and/or distribution of firearms, ammunition, lethal weapons, military ordinance, explosives, pyrotechnics and similar materials; unless such manufacturing or repair activity is specifically authorized, with a substantial export component, to a nonPhilippine national by the Secretary of National Defense; or

“Transitory Foreign Investment Negative List” established in Sec. 15 hereof shall be replaced at the end of the transitory period by the first Regular Negative List to be formulated and recommended by NEDA, following the process and criteria provided in Sections 8 of this Act. The first Regular Negative List shall be published not later than sixty (60) days before the end of the transitory period provided in said section, and shall become immediately effective at the end of the transitory period. Subsequent Foreign Investment Negative Lists shall become effective fifteen (15) days after publication in a newspaper of general circulation in the Philippines: Provided, however, That each Foreign Investment Negative List shall be prospective in operation and shall in no way affect foreign investment existing on the date of its publication.

b. which have implications on public health and morals, such as the manufacture and distribution of dangerous drugs; all forms of gambling; nightclubs, bars, beerhouses, dance halls; sauna and steam bathhouses and massage clinics.

“Amendments to List B after promulgation and publication of the first Regular Foreign Investment Negative List at the end of the transitory period shall not be made more often than once every two (2) years”. (Sec. 8) 318

2015 Mercantile Law Reviewer (Final)

Recommend Documents