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IX. Antichresis - Security is the fruits of the immovable. - Coggle…
IX. Antichresis
- Security is the fruits of the immovable.
A. General Concepts (Arts 2132-2133, 2135, 2138)
B. Forms (2134)
- The amount of the principal debt and interest must be in writing. Otherwise, antichresis contract is void.
C. Obligations Secured (2139, 2085, 2089-2091)
- 2139 provides that 2085 (last par.),2089 and 2091 are applicable to Antichresis.
E. Right of Retention (2136)
-
GR
- Debtor cannot re-acquire enjoyment of the immovable without full payment of the debt.
XCPN
- Creditor compels debtor to enter again upon the enjoyment of the property to exempt the creditor from obligations imposed in NCC 2135
XCPN 2 XCPN
- If there is a stipulation prohibiting this.
F. Foreclosure of Antichresis (2137)
- The creditor does not acquire ownership of the real-estate for non-payment of the debt.
Effect of Stipulation
- Automatic appropriation stipulation shall be void.
Remedy of Creditor
- To either:
SPECIFIC PERFORMANCE
- For payment of the debt
FORECLOSURE
- Sale of the real property subject to the Rules of Court
Effect of Foreclosure
- the security is waived, as option of foreclosure is alternative.
D. Object (2136)
- A lien on the Immovable property of the debtor or a third person regarding
jus fruendi
and
jus utendi
Purpose of Right
- As a means to extinguish the obligation. To compel the debtor.
Security (2085)
- Third persons who are not parties tot he principal obligation may secure the principal by antichresis of their own property (Guaranty/Surety).
E. Indivisibility of Antichresis (2089-2090)
- Means that the entire collateral answers for the totality of the debt. This is to protect the creditor.
When Divisible (2089)
- Requires express stipulation of divisibility.
GR
- Antichresis is indivisible, even if the debt may be divided among the successors of the debtor/creditor.
XCPN
- Several things are given in Antichresis where each one of them guarantees only a determinate portion of the credit. Here, debtor has a right of extinguishment of P/M as the portion of the debt it secures is satisfied.
Effect of Indivisibility
Debtor
- Debtor's heir who has paid a part of the debt cannot ask for the proportionate extinguishment of the Antichresis
Creditor
- His heir who received his share of the debt may not return the P or cancel the M to the prejudice of the other heirs who have been unpaid.
Solidary Liability (2090)
- does not affect the indivisibility of the pledge/mortgage
Obligations Secured (2091) -
Antichresis may secure all kinds of obligations, even if pure or subject to a suspensive or resolutory condition.
Agreement (Diego v. Fernando) -
To be antichresis, it must be expressly agreed between the creditor and the debtor that the creditor, who was given possession of the properties as security would use the fruits to pay the interest and the principal.
If a contract of loan with security does not stipulate the payment of interest but provides for the delivery to the creditor by the debtor of the property given as security, in order that the latter may gather its fruits, without stating that said fruits are to be applied to the payment of interest, if any, and afterwards that of the principal, the contract is a mortgage and not antichresis
Definition (2132)
- Creditor acquires the right to receive the fruits of an immovable of his debtor. Creditor has obligation to apply the fruits to FIRST, interest and SECOND, the principal debt.
Value of Fruits (2133)
- Actual market value of the fruits at the TIME OF APPLICATION to the interest and principal shall be the measure of the application.
Stipulation on Interest (2138) -
Parties may stipulate that the interest upon the debt be compensated with the fruits of the property subject to the antichresis. But, if the value of the fruits exceeds the amount of the interest allowed by usury laws, excess shall be applied to the interest.
Obligations of the Creditor (2135)
- Creditor has twin obligations UNLESS stipulation to the contrary.
TAXES
- to pay the taxes and charges upon the estate
NECESSARY EXPENSES
- bear the NECESSARY expenses for its preservation and repair.
Application of the Fruits -
No Interest
- Fruits are applied to the principal of the debtor's credit.
With Interest
2a.
Fruits Less Than Interest
- Fruits are applied to the interest.
2b.
Fruits Exceed Interest -
Fruits applied to interest, with the excess going to the principal.
2c.
Fruits Equal Interest
- Fruits still applied to the interest.
Distinguished from Real-Estate Mortgage
- A sub-species of real-estate mortgage where the mortgagee retains possession of the collateral and takes the fruits thereof in lieu of interests on the debt.
Kind of Transaction (Somera) -
A real security transaction. This is because property may be foreclosed if after expiration of period the principal obligation has not yet been paid i.e. immovables may be alienated to satisfy principal.
Mortgage in possession (Diego v. Fernando)
– “one who has lawfully acquired actual or constructive possession 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 help to pay his debt.”