ANTICHRESIS Contract of Antichresis
Art. 2132, NCC: By the contract of antichresis the creditor acquires the right to receive the fruits of an immovable of his debtor, with the obligation to apply them to the payment of the interest, if owing, and thereafter to the principal of his credit. Mortgagee in Possession
One who haas lawfully acquired actual or constructive poeession of the premises mortgaged to him, standing upon his rights as mortgagee and not claiming under another title for the purpose of enforcing his security upon such property or making its income to pay his debt. Characteristics: 1. Accessory contract – secures the performance of a principal obligation 2. Formal contract – must be in a specified form
Delivery of Property
Antichresis requires the delivery by the debtor of the property given as security to the creditor. But such delivery is required only in order that the creditor amat receive the fruits and not that the contract shall be binding.
Right of Creditor to the Fruits
Normally covers all the fruits of the encumbered property, but the law gives the parties the freedom to stipulate otherwise. Obligation to pay Interest No Essential
Antichresis is suscpetible of guaranteeing all kinds of obligations, pure or conditional.
D izon izon vs. vs. G abor ro, 83 SCR SC R A 688 (1978) (1978) F acts: cts: Jose P. Dizon is the owner of 3 parcels of land which were subject to a first mortgage lien in favor of Develpoment Bank of the Philippines (DBP) and a 2nd mortgage lien in favor of Philippine National Bank (PNB) . Having defaulted in the payment of his debt, DBP foreclosed the mortgage. A corresponding “Certificate of Sale” was executed in favor of said bank.
Subsequently, Dizon and Gaborro executed a “Deed of Sale with Assumption’ Assumption’ of mortgage by which Gaborro assumed the entire mortgage indebtedness of Dizon, in return for the transfer of such lots in his name. Gaborro then, has been in actual possession of the 3 parcels of land, cultivting the lots, paying realty taxes thereon, and appropriating all the fruits produced and other income of said lots. Less than a year later, Dizon offerred to reimburse Gaborro of what he paid to the banks and demanded an accounting of the income of the property, contending that the transaction they entered into was one of antichresis. He contended that the transaction was not an absolute sale but merely an equitable mortgage by way of security for the reimbursement by Dizon to Gaborro of what the latter may have paid on account of the mortgage debts.
I ssue ssue:: What is the nature of the contract entered into by the parties? Ruling:
The “Deed of Sale with Assumption of Mortgage” cannot be considered a real and unconditional sale of the parcels of land. Firstly, there was absolutely no money consideration therefor. The stipulated sum of P131,831.91 mentioned in the document as the consideration was not fully paid. Secondly, the properties had already been previously sold by the sheriff to DBP at the foreclosure sale, thereby divesting Dizon of his full right as owner thereof to dispose and sell the lands. The true intention of the parties is that Gaborro would assume and pay the indebtedness of Dizon to DBP and PNB and in consideration therefor, Gaborro was given the possession, enjoyment and use of the lands until Dizon can reimburse fully Gaborro for the amount paid by the latter. The agreement of Dizon and Gaborro is one of those innominate contracts under Article 1307 of the New Civil Code whereby they agreed “to give and to do” certain rights and obligations respecting the lands and the mortgage debts of Dizon which would be acceptable to the bank, but partaking of the nature of antichresis insofar as the principal parties are concerned.
Antichresis vs. Pledge Antichresis Real Property Consensual Contract
Pledge Personal Property Real Contract
Antichresis vs. Real Mortgage Antichresis Real Mortgage Property is delivered to Debtor usually retains creditor possession of property Creditor acquires only the Creditor does not have any right ot receive fruits of the reight to receive fruits, but
property; hence does not produce a real right
mortgage creates a real right over the property which is enforceable agains the whole world Creditor has no such obligation
Creditor is obliged to pay the taxes and charges upon the estate unless there is a stipulaiton to the contrary. Creditor acquires the right No such obligation on the to receive the fruits of an part of the mortgagee. immovable of his debtor, with the obligation to apply them to the payment of the interest, if owing, and thereafter to the principal of his credit.
Application of the Fruits to Interest and then to the Principal
In is not essential to a mortgage that possession of the mortgaged premises be retained by the mortgagor.
he does not pay the taxes, he is by law required to pay indemnity for damages to the debtor.
Rosales vs. Tanseco Doctrine: Where the debtor has paid for the taxes on the property which the creditor should have paid, the amount is to be applied to the payment of the debt, and the debtor is entitled to the return of the property free from all encumbrnces if he, in effect, by advancing the taxes, had already discharged the debt.
F acts: Pureza Congzon, thru fraud and without consideration was made by Leocadio S. Tanseco to execute a mortgage in favor of Tan Sun on a piece of and owned by Congzon, Tan Sun then transferred all his rights to Tan Tay Sun, who, in turen, assigned such to Tanseco. Congzon never enjoyed the possession and fruits of the land. He also paid for the taxes, the amount of which is more than that of the credit of Tan Sun secured by the mortgage.
I ssue: Whether or not there was in fact a contract of antichresis
To be antichresis, it must be expressly agreed between creditor and debtor that the former, having been given possession of the properties given as security, is to apply their fruits to the payment of interest, if owing, and thereafter to the principal of his credit. (Art. 2132, NCC)
Measure of Application of Fruits to Interest and Principal
The fruits if the immovable which is the object of the antichresis must be appraised at their actual market value at the time of the application. The foregoing rule will forestall the use of antichresis for purposes of usury. Form of Contract
The amount of the principal and of the interest shall be specified in writing; otherwise, the contract of antichresis shall be void. (ART. 2134, NCC)
Obligations of Antichretic Creditor
Ruling: Yes. In a contract of antichresis, the creditor is obiged to pay the taxes on the property, unless the contract says otherwise. The ontract between Congzon and Tan Sun said nothing about taxes. Hence, it was the obligation of the creditor to pay the taxes on the property. Bearing in mind that the credit was only P26,000, it is plain to see that Congzon et. al. affirmed in effect tthat they had already discharged their debt, by advancing the taxes which the creditor should have paid, and are entitled to the return of their property free from all encumbrance.
2. Application of the fruits of the estate The creditor shall apply the fruits, after receiving them, to the payment of interest, if owing, and thereefter to the principal in accordance with the provisions of Article 2133 or 2138 of the Civil Code. 3. Render an Account of the Fruits of the Debtor
Right of the Antichretic Debtor to Reacquire Enjoyment of Property
1. Payment of taxes and charges upon the estate The creditor is obliged, unless there is a stipulation to the contrary, to pay the taxes and charges upon the estate. If
The property stands as a security for the payment of the obligation of the debtor in antichresis. Hence, the debtor cannot demand its return until the debt is totally paid.
However, if the creditor does not want to pay the taxes and incur the expenses necessary for the preservation and repair of the property, he may compel the debtor to reacquire the enjoyment of the same except when there is a contrary stipulation.
Remedy of Creditor in Case of Non-Payment of Debt
1. Specific Performance; or 2. Petition for the sale of the real property Parties, however, may agree on an extrajudicial foreclosure in the same manner as they are allowed in contracts of mortgage and pledge. G.R.: If the debt it not paid, the creditor does not acquire ownership of the real estate since what was transferred is not the ownership but merely the right to receive the fruits. Acquisition by Creditor of Property by Prescription
The creditor and his successors-in-interest ordinarily acquire by prescription the land given any agreement to the contrary being void. He acquire ownership of the real estate subject antichresis unless he repudiates his status antichretic creditor.
cannot to him, cannot of the as an
Applicability of Certain Articles Art. 2085 “Third persons who are not parties to the principal onligation may secure the latter by pledging or mortgaging their own property” Art. 2089 “Art. 2089. A pledge or mortgage is indivisible, even though the debt may be divided among the successors in interest of the debtor or of the creditor.
Therefore, the debtor's heir who has paid a part of the debt cannot ask for the proportionate extinguishment of the pledge or mortgage as long as the debt is not completely satisfied. Neither can the creditor's heir who received his share of the debt return the pledge or cancel the mortgage, to the prejudice of the other heirs who have not been paid. From these provisions is expected the case in which, there being several things given in mortgage or pledge, each one of them guarantees only a determinate portion of the credit.
The debtor, in this case, shall have a right to the extinguishment of the pledge or mortgage as the portion of the debt for which each thing is specially answerable is satisfied.” Art. 2091 “The contract of pledge or mortgage may secure all kinds of obligations, be they pure or subject to a suspensive or resolutory condition.”
