Los Complejos de Platino(II) y su Importancia en la Lucha Contra el Cáncer

FACTS: On September 15, 1999, One Virtual placed with GILAT a purchase order for various telecommunications equipment, accessories, spares, services and software, at a total purchase price of US$ 2,128,250.00. Of the said purchase price for the goods delivered, One Virtual promised to pay a portion thereof totalling US$1.2 Million in accordance with the payment schedule dated 22 November 1999. To ensure the prompt payment of this amount, it obtained defendant UCPB’s surety bond dated 3 December 1999, in favor of GILAT.

During the period between September 1999 and June 2000, GILAT shipped and delivered to One Virtual the purchased products and equipment, as evidenced by airway bills/Bill of Lading. All of the equipment, including the software components for which payment was secured by the surety bond, was shipped by GILAT and duly received by One Virtual. Under an endorsement dated December 23, 1999, the surety issued, with One Virtuals conformity, an amendment to the surety bond, Annex A thereof, correcting its expiry date from May 30, 2001 to July 30, 2001.

One Virtual failed to pay GILAT the amount of US$ 400,000.00 on the due date of May 30, 2000 in accordance with the payment schedule to the surety bond, prompting GILAT to write the surety defendant UCPB on June 5, 2000, a demand letter for payment of the said amount of US$400,000.00. No part of the amount set forth in this demand has been paid to date by either One Virtual or defendant UCPB. One Virtual likewise failed to pay on the succeeding payment installment date of 30 November 2000 of the surety bond, prompting GILAT to send a second demand letter dated January 24, 2001, for the payment of the full amount of US$1,200,000.00 guaranteed under the surety bond, plus interests and expenses and which letter was received by the defendant surety on January 25, 2001. However, defendant UCPB failed to settle the amount of US$1,200,000.00 or a part thereof, hence, the instant complaint.

Gilat filed a Complaint against respondent UCPB to recover the amounts supposedly covered by the surety bond, plus interests and expenses.

ISSUES:

1. WON the CA erred in dismissing the case and ordering petitioner and One Virtual to arbitrate.

2. WON petitioner is entitled to legal interest due to the delay in the fulfillment by respondent of its obligation under the Suretyship Agreement.

HELD:

Suretyship Agreement

The existence of a suretyship agreement does not give the surety the right to intervene in the principal contract, nor can an arbitration clause between the buyer and the seller be invoked by a non-party such as the surety.

Petitioner alleges that arbitration laws mandate that no court can compel arbitration, unless a party entitled to it applies for this relief. This referral, however, can only be demanded by one who is a party to the arbitration agreement. Considering that neither petitioner nor One Virtual has asked for a referral, there is no basis for the CAs order to arbitrate.

Moreover, Articles 1216 and 2047 of the Civil Code clearly provide that the creditor may proceed against the surety without having first sued the principal debtor. Even the Surety Agreement itself states that respondent becomes liable upon mere failure of the Principal to make such prompt payment. Thus, petitioner should not be ordered to make a separate claim against One Virtual (via arbitration) before proceeding against respondent.

On the other hand, respondent maintains that a surety contract is merely an accessory contract, which cannot exist without a valid obligation. Thus, the surety may avail itself of all the defenses available to the principal debtor and inherent in the debt that is, the right to invoke the arbitration clause in the Purchase Agreement.

We agree with petitioner.

In suretyship, the oft-repeated rule is that a surety’s liability is joint and solidary with that of the principal debtor. This undertaking makes a surety agreement an ancillary contract, as it presupposes the existence of a principal contract. Nevertheless, although the contract of a surety is in essence secondary only to a valid principal obligation, its liability to the creditor or promise of the principal is said to be direct, primary and absolute; in other words, a surety is directly and equally bound with the principal. He becomes liable for the debt and duty of the principal obligor, even without possessing a direct or personal interest in the obligations constituted by the latter. Thus, a surety is not entitled to a separate notice of default or to the benefit of excussion. It may in fact be sued separately or together with the principal debtor.

After a thorough examination of the pieces of evidence presented by both parties, the RTC found that petitioner had delivered all the goods to One Virtual and installed them.

Despite these compliances, One Virtual still failed to pay its obligation, triggering respondent’s liability to petitioner as the formers surety. In other words, the failure of One Virtual, as the principal debtor, to fulfill its monetary obligation to petitioner gave the latter an immediate right to pursue respondent as the surety.

Consequently, we cannot sustain respondents claim that the Purchase Agreement, being the principal contract to which the Suretyship Agreement is accessory, must take precedence over arbitration as the preferred mode of settling disputes.

First, the acceptance of a surety agreement does not change in any material way the creditor’s relationship with the principal debtor nor does it make the surety an active party to the principal creditor-debtor relationship. In other words, the acceptance does not give the surety the right to intervene in the principal contract. The surety’s role arises only upon the debtors default, at which time, it can be directly held liable by the creditor for payment as a solidary obligor. Hence, the surety remains a stranger to the Purchase Agreement. We agree with petitioner that respondent cannot invoke in its favor the arbitration clause in the Purchase Agreement, because it is not a party

to that contract. An arbitration agreement being contractual in nature, it is binding only on the parties thereto, as well as their assigns and heirs.

Second, Section 24 of Republic Act No.

928542 is clear in stating that a referral to arbitration may only take place if at least one party so requests not later than the pre-trial conference, or upon the request of both parties thereafter. Respondent has not presented even an iota of evidence to show that either petitioner or One Virtual submitted its contesting claim for arbitration.

Third, sureties do not insure the solvency of the debtor, but rather the debt itself. They are contracted precisely to mitigate risks of nonperformance on the part of the obligor. This responsibility necessarily places a surety on the same level as that of the principal debtor.

The effect is that the creditor is given the right to directly proceed against either principal debtor or surety. This is the reason why excussion cannot be invoked. To require the creditor to proceed to arbitration would render the very essence of suretyship nugatory and diminish its value in commerce. If the surety is dissatisfied with the degree of activity displayed by the creditor in the pursuit of his principal, he may pay the debt himself and become subrogated to all the rights and

remedies of the creditor.

Interest; Delay

Interest, as a form of indemnity, may be awarded to a creditor for the delay incurred by a debtor in the payment of the latter’s obligation, provided that the delay is inexcusable.

Anent the issue of interests, petitioner alleges that it deserves to be paid legal interest of 12%

per annum from the time of its first demand on respondent on 5 June 2000 or at most, from the second demand on 24 January 2001 because of the latter’s delay in discharging its monetary obligation. Citing Article 1169 of the Civil Code, petitioner insists that the delay started to run from the time it demanded the fulfilment of respondent’s obligation under the suretyship contract. Significantly, respondent does not contest this point, but instead argues that it is only liable for legal interest of 6% per annum from the date of petitioner’s last

demand on 24 January 2001.

We sustain petitioner. Article 2209 of the Civil Code is clear: if an obligation consists in the payment of a sum of money, and the debtor incurs a delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of stipulation, the legal interest.

Delay arises from the time the obligee judicially or extrajudicially demands from the obligor the performance of the obligation, and the latter fails to comply. Delay, as used in Article 1169, is synonymous with default or mora, which means delay in the fulfilment of obligations. It is the nonfulfillment of an obligation with respect to time.52 In order for the debtor (in this case, the surety) to be in default, it is necessary that the following requisites be present: (1) that the obligation be demandable and already liquidated; (2) that the debtor delays performance; and (3) that the creditor requires the performance judicially or extrajudicially.

Having held that a surety upon demand fails to pay, it can be held liable for interest, even if in thus paying, its liability becomes more than the principal obligation. The increased liability is not because of the contract, but because of the default and the necessity of judicial collection.

However, for delay to merit interest, it must be inexcusable in nature.

As to the issue of when interest must accrue, our Civil Code is explicit in stating that it accrues from the time judicial or extrajudicial demand is made on the surety. This ruling is in accordance with the provisions of Article 1169 of the Civil Code and of the settled rule that where there has been an extra-judicial demand before an action for performance was filed, interest on the amount due begins to run, not from the date of the filing of the complaint, but from the date of that extra-judicial demand.

Considering that respondent failed to pay its obligation on 30 May 2000 in accordance with the Purchase Agreement, and that the extrajudicial demand of petitioner was sent on 5 June 2000, we agree with the latter that interest must start to run from the time petitioner sent its first demand letter (5 June 2000), because the obligation was already due and demandable at that time.

WILLEX PLASTIC, INC. V. CA, INTERNATIONAL CORPORATE BANK

(1996)

Doctrine: It is never necessary that a guarantor or surety should receive any part or benefit, if such there be, accruing to his principal

FACTS: 1978: Inter-Resin took out a loan from Manila Bank. As additional security, Inter-Resin and Investment Underwriting (IUCP) executed a Continuing Surety Agreement stating that they are liable to Manila Bank solidarily for the loan taken out by Inter-Resin.

1979: Inter-Resin and Willex Plastic executed a Continuing Guarantee for the loan which Inter-Resin obtained from Investment Underwriting to the extent of P5M.

1981: Investment Underwriting (IUCP) paid Manila Bank P4M to satisfy Inter-Resin’s 1978 Obligation.

Investment Underwriting (IUCP) then demanded payment of the P4M from both Inter-Resin and Willex.

Inter-Resin paid IUCP P600K from the proceeds of its fire insurance

Willex denied obligation, it alleged that it is only a guarantor of the principal, hence its liability was only secondary to the principal and that it did not receive consideration nor benefit from the contract between the bank and Inter-Resin.

Willex insisted that IUCP should pursue Inter-Resin and apply to the loan the assets of the latter first before going after it.

Willex further alleged that it is guarantor of a loan to Manila Bank and not to Interbank, hence the Continuing Guaranty cannot be retroactive applied as contracts of suretyship contemplates future dealing.

ISSUE: WON Willex is liable as guarantor for the loans obtained by Inter-Resin to IUCP? – Yes

HELD: Intent is controlling: clear from the evidence that the Continuing Guarantee executed by Willex with Inter-Resin would cover sums obtained (in the past– retroactive) and/or to be obtained by Inter-Resin Industrial from Interbank.

Although a contract of suretyship is ordinarily not to be construed as retrospective, in the end the intention of the parties as revealed by the evidence is controlling– apply it to the 1978 loan.

Guarantor or surety is bound by the same consideration that makes the contract effective between the principal parties thereto.

. . . It is never necessary that a guarantor or surety should receive any part or benefit, if such there be, accruing to his principal.

RCBC VS. HON. JOSE P. ARRO 31 July 1982

FACTS: Private respondent Residoro Chua, with Enrique Go, Sr., executed a comprehensive surety agreement to guaranty, above all, any existing or future indebtedness of Davao Agricultural Industries Corporation (Daicor), and/or induce the bank at anytime or from time to time to make loans or advances or to extend credit to said Daicor, provided that the liability shall not exceed at any time Php100,000.00.

A promissory note for Php100,000.00 (for additional capital to the charcoal buy and sell and the activated carbon importation business) was issued in favor of petitioner RCBC payable a month after execution. This was signed by Go in his personal capacity and in behalf of Daicor. Respondent Chua did not sign in said promissory note. As the note was not paid despite demands, RCBC filed a complaint for a sum of money against Daicor, Go and Chua.

The complaint against Chua was dismissed upon his motion, alleging that the complaint states no cause of action against him as he was not a signatory to the note and hence he cannot be held liable. This was so despite RCBC’s opposition, invoking the comprehensive surety agreement which it holds to cover not just the note in question but also every other indebtedness that Daicor may

incur from petitioner bank. RCBC moved for reconsideration of the dismissal but to no avail.

ISSUE: WON respondent Chua may be held liable with Go and Daicor under the promissory note, even if he was not a signatory to it, in light of the provisions of the comprehensive surety agreement wherein he bound himself with Go and Daicor, as solidary debtors, to pay existing and future debts of said corporation.

HELD: Yes, he may be held liable. The comprehensive surety agreement executed by Chua and Go, as president and general manager, respectively, of Daicor, was to cover existing as well as future obligations which Daicor may incur with RCBC. This was only subject to the proviso that their liability shall not exceed at any one time the aggregate principal amount of Php100,000.00. (Par.1 of said agreement).

The agreement was executed to induce petitioner Bank to grant any application for a loan Daicor would request for. According to said agreement, the guaranty is continuing and shall remain in full force or effect until the bank is notified of its termination.

During the time the loan under the promissory note was incurred, the agreement was still in full force and effect and is thus covered by the latter agreement. Thus, even if Chua did not sign the promissory note, he is still liable by virtue of the surety agreement. The only condition necessary for him to be liable under the agreement was that Daicor “is or may become liable as maker, endorser, accept or or otherwise.”

The comprehensive surety agreement signed by Go and Chua was as an accessory obligation dependent upon the principal obligation, i.e., the loan obtained by Daicor as evidenced by the promissory note. The surety agreement unequivocally shows that it was executed to guarantee future debts that may be incurred by Daicor with petitioner, as allowed under NCC Art.2053.

“A guaranty may also be given as security for future debts, the amount of which is not yet known; there can be no claim against the guarantor until the debt is liquidated. A conditional obligation may also be secured.”

ATOK CORPORATION vs. COURT OF APPEALS, SANYU CORPORATION, DANILO E. ARRIETA, NENITA B. ARRIETA,

PABLITO BERMUNDO and LEOPOLDO HALILI

FACTS: SANYU as principal and Sanyu Trading along with individual private stockholders of SC(Halili and Bermundo) as sureties, executed in the continuing Suretyship Agreement in favor of ATOK as creditor. Under this Agreement, Sanyu Trading and Halili and Bermudo jointly and severally unconditionally guarantee to ATOK CORPORATION the full, faithful and prompt payment and discharge of any and all indebtedness of SANYU.

The word "indebtedness" is used herein in its most comprehensive sense and includes any and all advances, debts, obligations and liabilities of Principal or any one or more of them,here[to]fore, now or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether direct or acquired by the Creditor by assignment or succession, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined and whether the Principal may be may be liable individually of jointly with others, or whether recovery upon such indebtedness may be or hereafter become barred by any statute of limitations, or whether such indebtedness may be or otherwise become unenforceable.

SANYU assigned its trade receivables (P125K) in consideration of receipt from ATOK of the amount of P105,000.00.

Later, additional trade receivables were assigned by SANYU to ATOK with a total face value of P100,378.45.

Subsequently Atok commenced action against SANYU, the Arrieta spouses, Pablito Bermundo and Leopoldo Halili to collect the sum of P120,240.00 plus penalty charges amounting to P0.03 for every peso due and payable for each month starting from 1 September 1983.

ATOK alleged that SANYU had failed to collect and remit the amount due under the trade receivables.

SANYU et al sought dismissal of Atok's claim upon the ground that such claim had prescribed under Article 1629 of the Civil Code and for lack of cause of action. The private respondents contended that the Continuing Suretyship Agreement, being an accessory contract, was null and void since, at the time of its execution, SANYU had no pre-existing obligation due to ATOK.

ISSUE: Whether the individual private respondents may be held solidarily liable with SANYU under the provisions of the Continuing Suretyship Agreement. YES

OR Whether that Agreement must be held null and void as having been executed without consideration and without a pre-existing principal obligation to sustain it. NO

HELD: It is true that a serious guaranty or a suretyship agreement is an accessory contract in the sense that it is entered into for the purpose of securing the performance of another obligation which is denominated as the principal obligation. It is also true that Article 2052 of the Civil Code states that "a guarantee cannot exist without a valid obligation." This legal proposition is not, however, like most

HELD: It is true that a serious guaranty or a suretyship agreement is an accessory contract in the sense that it is entered into for the purpose of securing the performance of another obligation which is denominated as the principal obligation. It is also true that Article 2052 of the Civil Code states that "a guarantee cannot exist without a valid obligation." This legal proposition is not, however, like most