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ANTICHRESIS, *Non-payment of debt does not transfer ownership to creditor;…

- - - - D. OBJECT
        
        E. RIGHT OF RETENTION
        
        F. FORECLOSURE OF ANTICHRESIS
        
        PACTUM COMMISORIUM (2137)
        Article 2137. The creditor does not acquire the ownership of the real estate for non-payment of the debt within the period agreed upon.
        
        Every stipulation to the contrary shall be void. But the creditor may petition the court for the payment of the debt or the sale of the real property. In this case, the Rules of Court on the foreclosure of mortgages shall apply. (1884a)
        
        GR: Debtor can only enter property upon full payment of what he owes to creditor
        XCPN: Creditor may compel debtor to enter to relieve creditor from paying for taxes, charges, expenses for the immovable
        
        Article 2136. The debtor cannot reacquire the enjoyment of the immovable without first having totally paid what he owes the creditor.
        But the latter, in order to exempt himself from the obligations imposed upon him by the preceding article, may always compel the debtor to enter again upon the enjoyment of the property, except when there is a stipulation to the contrary. (1883)
        *There is a right to retain the property until the debtor has fully paid what he owes the creditor.
        
        RIGHT TO RECEIVE FRUITS (2132)
        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.
        
        *Right to receive the fruits of an immovable (? Does not it include mortgage over the property?)
      - Article 2139. The last paragraph of article 2085, and articles 2089 to 2091 are applicable to this contract. (1886a)
        
        Article 2085. The following requisites are essential to the contracts of pledge and mortgage:
        (1) That they be constituted to secure the fulfillment of a principal obligation;
        (2) That the pledgor or mortgagor be the absolute owner of the thing pledged or mortgaged;
        (3) That the persons constituting the pledge or mortgage have the free disposal of their property, and in the absence thereof, that they be legally authorized for the purpose.
        Third persons who are not parties to the principal obligation may secure the latter by pledging or mortgaging their own property. (1857)
        
        *An antichresis must be constituted to fulfil the principal obligation
        
        *The mortgagor must be the absolute owner of the immovable on which the fruits grow (?) (Or just the fruits?)
        
        *The mortgagor must have free disposal of his property
        
        *Third persons may secure an obligation by antichresis
        
        Article 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 excepted 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.
        
        *An antichresis is indivisible. It is not extinguished by anything except the fulfilment of the principal obligation it secures.
        
        Article 2090. The indivisibility of a pledge or mortgage is not affected by the fact that the debtors are not solidarily liable. (n)
        
        Article 2091. The contract of pledge or mortgage may secure all kinds of obligations, be they pure or subject to a suspensive or resolutory condition. (1861)
        
        *Antichresis may secure all kinds of obligations, be they pure or subject to suspensive or resolutory condition
  - - - GR: The creditor is obliged to pay,
        
        The taxes and charges upon the estate
        
        The expenses necessary for the immovable’s preservation and repair
        
        EXCEPTION
        Unless there is a stipulation to the contrary
        
        Article 2135. The creditor, unless there is a stipulation to the contrary, is obliged to pay the taxes and charges upon the estate.
        He is also bound to bear the expenses necessary for its preservation and repair.
        The sums spent for the purposes stated in this article shall be deducted from the fruits.
        
        VALUE OF FRUITS>INTEREST ALLOWED BY USURY
        Article 2138. The contracting parties may stipulate that the interest upon the debt be compensated with the fruits of the property which is the object of the antichresis, provided that if the value of the fruits should exceed the amount of interest allowed by the laws against usury, the excess shall be applied to the principal. (1885a)
        
        Article 2139. The last paragraph of article 2085, and articles 2089 to 2091 are applicable to this contract. (1886a)
        
        Antichresis is a real security transaction It gives the antichretic creditor to receive the fruits and to apply them to the interest, if owing
        
        *Antichresis is generally viewed as a species of real estate mortgage.
        
        Mortgagee retains possession of the collateral and takes the fruits in lieu of interest on the debt
        
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        NECESSARY EXPENSES SHALL BE DEDUCTED FROM FRUITS
        
        NECESSARY EXPENSES:
        HOW WAIVED (2136)
        Creditor may compel debtor to enter to relieve creditor from paying for taxes, charges, expenses for the immovable
      - Article 2133. The actual market value of the fruits at the time of the application thereof to the interest and principal shall be the measure of such application. (n)
        *The actual value of the fruits are applied
    - - NO EXPRESS AGREEMENT = MORTGAGE
        Thus, 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