What is ANTICHRESIS? Article 2132 By the contract of antichresis the creditor acqires the ri!ht to recei"e frits of an i##o" i##o"a$l a$le e of his de$tor% de$tor% &ith the o$li! o$li!ati ation on to a''ly a''ly the# the# to the 'ay#ent 'ay#ent of the interest% if o&in!% and thereafter to the 'rinci'al of his credit( What are its CHARACTERISTICS? >an accessory contract because it secures the performance of a principal obligation. >a formal contract because it must be in a specified form to be valid. What are the RE)*ISITES of antichresis? >It can cover only the fruits of an immovable property >Delivery of the immovable is necessary for the creditor to receive the fruits and not that the contract shall be binding >Amount of principal and interest must be specified in writing >Express agreement that the debtor will give possession of the property to creditor and that the latter will apply the fruits to the interest, if any, any, then to the principal of his credit. In the absence of this requisite, the contract shall be deemed to be one of mortgage Antichresis "s +led!e A#$I%&'E(I( A#$I%&'E(I( )*ED+E refers to real property 'efers to personal property perfected by mere consent perfected by the delivery of the thing pledged consensual contract a real contract !oth are similar in that the debtor loses control of the sub"ect matter of the contract Antichresis "s ,ort!a!e A#$I%&'E(I( A#$I%&'E(I( the the prop proper erty ty is deli delive vere red d to the the cred credit itor or
-'$+A+E -'$+A+E the the debt debtor or usua usuall lly y reta retain ins s poss posses essi sion on of the property the the cred credit itor or acqu acquir ires es only only the the righ rightt to the creditor does not have any right receive the fruits of the property hence it to receive the fruits but the mortgage does not produce a real right creates a real real righ rightt over over the the prop proper erty ty which hich is enforceable against the whole world , the creditor unless there is a stipulation to the creditor has no such obligation the contrary, is obliged to pay the taxes and charges upon the estate , it is expressly stipulated that the creditor there is no such obligation in the part given given posse possessi ssion on of the the prope property rty shall shall of the mortgagee apply the fruits thereof to the payment of intere interest, st, if owing owing,, and and there thereaft after er to the the principal of the credit
!oth are similar in that the sub"ect matter is a real property. *ie pledge and mortgage, antichresis gives a real and not merely a personal right if it is registered in the 'egistry of )roperty. Article 2133 The actal #ar-et "ale of the frits at the ti#e of the a''lication thereof to the interest and 'rinci'al shall $e the #easre of sch a''lication ,easre of a''lication >$he contract does not cover the immovable but only its fruits. $he fruits must be appraised at their actual maret value at the time of the application. Article 213. The a#ont of the 'rinci'al and the interest shall $e s'ecified in &ritin!/ other&ise% the contract of antichresis is "oid( 0or# of the contract >It should be in writing. $he law requires a certain form for it to be valid and not only to affect third persons. >!ut even if the contract of antichresis is void, the principal contract is still valid Article 213 The creditor% nless there is a sti'lation to the contrary% is o$li!ed to 'ay the taes and char!es 'on the estate( He is also $ond to $ear the e'enses necessary for the 'reser"ation and re'air( The s#s s'ent for the 'r'oses stated in this article shall $e dedcted fro# the frits( $li!ations of the antichretic creditor >$o pay taxes and charges on the estate, including expenses necessary for preservation and repair >$o apply the fruits, after receiving them to the payment of interest, if owing, and thereafter to the principal >$o render an account of the fruits to the debtor >$o bear the expenses necessary for its preservation and repair Article 2134 The de$tor cannot reacqire the en5oy#ent of the i##o"a$le &ithot first ha"in! totally 'aid &hat he o&es the creditor( Bt the latter% in order to ee#'t hi#self fro# the o$li!ations i#'osed 'on hi# $y the 'recedin! article% #ay al&ays co#'el the de$tor to enter a!ain 'on the en5oy#ent of the 'ro'erty% ece't &hen there is a sti'lation to the contrary( 6 $he property delivered stands as a security for the payment of the obligation of the debtor in antichresis. &ence, the debtor cannot demand its return until the debt is totally paid. &owever, if the creditor does not want to pay the taxes and incur the necessary expenses for the preservation and repair of the property, he may compel the debtor to reacquire the same except when there is a contrary stipulation.
Article 2137 The creditor does not acqire the o&nershi' of the real estate for non'ay#ent of the de$t &ithin the 'eriod a!reed 'on( E"ery sti'lation to the contrary shall $e "oid( Bt the creditor #ay 'etition the cort for the 'ay#ent of the de$t or the sale of the 'ro'erty( In this case% the Rles of Cort on the foreclosre of #ort!a!es shall a''ly( Re#edy of creditor in case of non'ay#ent >$o bring an action for specific performance >$o petition for the sale of the real property as in a foreclosure of mortgages under 'ule /0 of the 'ules of %ourt. &owever, the parties may agree on an extra"udicial foreclosure in the same manner as they are allowed in contracts of mortgage and pledge. the creditor in antichresis and his successors1in1interest cannot ordinarily acquire by prescription the land given to him, any agreement to the contrary is void. Article 2138 The contractin! 'arties #ay sti'late that the interest 'on the de$t $e co#'ensated &ith the frits of the 'ro'erty &hich is the o$5ect of the antichresis% 'ro"ided that if the "ale of the frits shold eceed the a#ont of interest allo&ed $y the la& a!ainst sry% the ecess shall $e a''lied to the 'rinci'al( 6$he antichretic creditor is under the obligation to apply the fruits of the property in satisfaction, first, of whatever interest on the debt is due, and secondly, to the payment of the principal. $he fruits must be appraised on the basis of their actual maret value at the time of the application
What is a Chattel ,ort!a!e?
- A chattel mortgage is a contract by virtue of which a personal property is recorded in the %hattel ortgage 'egister as a security for the performance of an obligation. If the movable, instead of being recorded, is delivered to the creditor or a third person, the contract is a pledge and not a chattel mortgage. Characteristics of Chattel ,ort!a!e
- 2ormal contract - Accessory contract - 3nilateral contract - Does not convey dominion but only a security - %reates a real right or lien which follows the chattel wherever it goes
Distinctions between chattel and pledge !asis As to delivery of property As to registration As to procedure of sale As to excess in case of foreclosure As to recovery of deficiency in case of foreclosure
%hattel mortgage #ot necessary required (ec. 45 of act 4670 applies +oes to the debtor %reditor is entitled unless the chattel mortgage is constituted as security for purchase of personal property in installments
)ledge #ecessary #ot required Art 8448 applies +oes to the creditor unless otherwise agreed %reditor not entitled even if agreed between the parties
9a&s !o"ernin! chattel #ort!a!e 1 2 3 .
Chattel ,ort!a!e 9a& Act no 1:8 Ci"il Code Re"ised Ad#inistratice Code Re"ised +enal Code Shi' ,ort!a!e ;ecree of 1<78
Art( 21.1= The 'ro"isions of this Code on 'led!e% insofar as they are not in conflict &ith the Chattel ,ort!a!e 9a&% shall $e a''lica$le to chattel #ort!a!es( Re!istration
$here are no absolute criterion between the two inds of property, 'eal and )ersonal, for purposes of the application of %hattel ortgage *aw. In such cases, a personal property may be imputed as real property or vice versa. > 3nder given conditions, property may have different character different from that imputer to it in said articles > )arties may, by agreement, treat as personal property by which by nature would be real property9 and it is a familiar phenomenon to see things classed as real property for purposes of taxation which on general principles might be considered as personal property > $he proper classification of one thing as real or personal property is doubtful (ec : of the %hattel ortgage *aw does not demand a minute and specific description of every chattel mortgaged in the deed of mortgage, but only requires that the description be such to enable the partied to identify the same after reasonable investigation and inquiry $he law on provides for only one way of executing a valid chattel mortgage, the registration of the personal property in the %hattel ortgage 'egistry. $he law is substantially and sufficiently complied with where the registration is made by the mortgagee before the mortgagor has complied with his principal obligation and no right of innocent third persons is pre"udiced. 'egistration of an assignment of %hattel ortgage credit is merely permissive. (ec 6 of the %hattel ortgage *aw provides that in describing what constitutes a good chattel mortgage, includes the requirement of the affidavit of good faith appended in the mortgage and recorded therewith. $he ;affidavit of good faith< is an oath in a contract of chattel mortgage where the parties severally swear that the mortgage is made for the purpose of securing the obligation specified in the conditions. It is not necessary for the validity of the chattel mortgage but only to give it a preferred status. A chattel mortgage can only cover obligations existing at the time the mortgage is constituted.
Effects of Re!istration 1( Creates Real Ri!ht @ the registration in the chattel mortgage is an effective and binding notice to other creditors of its existence and creates a real right or lien which, being recorded, follows the chattel wherever it goes. $he registration gives the mortgagee symbolical possession. 2( Adds nothin! to #ort!a!e @ registration adds nothing to the instrument, considered as a source of title and affects nobody=s rights except as a species of notice. Ri!ht of #ort!a!ee to 'ossession 1( After ;efalt the right of the creditor to tae the mortgaged property is implied in his right to sell when default occurs. 2( Before ;efalt the mortgagee is not entitled to the possession of the mortgaged property upon execution of the chattel mortgage for otherwise, it becomes a pledge, 3( Where #ort!a!ee refses to srrender 'ossession (ec 45 provides that the creditor=s remedy in such instance is to file for an action for a "udicial foreclosure or to tae possession of the property as a preliminary to the sale contemplated. 0oreclosre of the Chattel ,ort!a!e +$lic Sale if the mortgagor defaults in the payment of the secured debt or otherwise fails to comply with the conditions of the mortgage, the creditor is permitted only to recover his credit from the proceeds of the property at public auction. (ec 45 provides that allows a mortgagee to have the mortgaged property sold in the manner as that allowed in extra"udicial foreclosure. +ri"ate Sale an agreement to such is not illegal, immoral or against public order for the private sale of a personal property. After ?7 days from the time of the condition broen, cause the mortgaged property to be sold at public auction by a public officer with at least 47 day notice to the mortgagor and posting of public otice of time, place and purpose of such sale. Ri!ht of #ort!a!ee to deficiency Where #ort!a!e foreclosed% the creditor may file for the deficiency although the %hattel ortgage *aw is silent on this point. $he reason is that the chattel mortgage is only given as a security and not as payment for the debt in case of failure of payment. Where #ort!a!e constitted as secrity for 'rchase of 'ersonal 'ro'erty 'aya$le in install#ents% no deficiency "udgment can be ased and any agreement to the contrary shall be void. Where #ort!a!ed 'ro'erty s$seqently attached and sold% the chattel mortgagee is entitled to deficiency "udgment in an action for specific performance. $he execution sale in such a case is not a foreclosure sale.
A''lication of Sale 4. %osts and expenses of eeping and sale 8. )ayment of the obligation secured by the mortgagee ?. %laims of persons holding subsequent mortgages in their order 5. $he balance, if any, shall be paid to the mortgagor, or person holding under him
