CAPÍTULO 4: TECNOLOGÍAS WAN: FRAME RELAY
4.10 D ESARROLLO PRÁCTICO
4.10.1 D EFINIR UN INTERFAZ F RAME R ELAY SOBRE LÍNEA SERIE
Q: Is written notice mandatory for the right of redemption to commence?
A: Yes, the notice must be in writing stating the execution of the sale and its particulars. It may be made in a private or public document. (Pineda, p.
400)
Q: Is there a prescribed form for an offer to redeem?
A: There is no prescribed form for an offer to redeem to be properly effected. Hence, it can either be through a formal tender with consignation of the redemption price within the prescribed period. What is paramount is the availment of the fixed and definite period within which to exercise the right of legal redemption.
Note: Art. 1623 does not prescribe any distinctive method for notifying the redemptioner.
265
U N I V E R S I T Y O F S A N T O T O M A S F a c u l t a d d e D e r e c h o C i v i l
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
Q: Is tender of payment necessary for redemption to take effect?
A: Tender of payment is not necessary; offer to redeem is enough.
Q: What is the effect of failure to redeem?
A: There must be judicial order before ownership of real property is consolidated to the buyer a retro.
TRUST DE SON TORT
Q: What is a trust de son tort?
A: It is a trust created by the purchase or redemption of property by one other than the person lawfully entitled to do so and in fraud of the other.
Q: Do constructive trusts arise only out of fraud or duress?
A: No. A constructive trust, otherwise known as a trust ex maleficio, a trust ex delicto, a trust de son tort, an involuntary trust, or an implied trust, is a trust by operation of law which arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to
property which he ought not, in equity and good conscience, hold and enjoy. It has been broadly ruled that a breach of confidence, although in business or social relations, rendering an acquisition or retention of property by one person unconscionable against another, raises a constructive trust. It is raised by equity in respect of property, which has been acquired by fraud, or where, although acquired originally without fraud, it is against equity that it should be retained by the person holding it. (Arlegui v. CA G.R. No. 126437, Mar. 6, 2002)
Note: "A constructive trust is substantially an appropriate remedy against unjust enrichment. It is raised by equity in respect of property, which has been acquired by fraud, or where, although acquired originally without fraud, it is against equity that it should be retained by the person holding it." (76 Am.
Jur. 2d, Sec. 222, p. 447 cited in Arlegui v. CA G.R. No.
126437, Mar. 6, 2002)
D. CONVENTIONAL REDEMPTION
Q: What is conventional redemption?
A: Seller reserved the right to repurchase thing sold coupled with obligation to return price of the sale, expenses of contract & other legitimate payments and the necessary & useful expenses made on the thing sold
Note: Right to repurchase must be reserved at the time of perfection of sale. (Pineda, p. 333)
E. LEGAL REDEMPTION
Q: What is legal redemption?
A: Also referred to as “retracto legal”, it is the right to be subrogated upon the same terms and conditions stipulated in the contract, in the place of one who acquires the thing by purchase or by dation in payment or by other transaction whereby ownership is transmitted by onerous title.
Q: What are the instances of legal redemption?
A:
1. Sale of a co‐owner of his share to a stranger (Art. 1620)
2. When a credit or other incorporeal right in litigation is sold (Art. 1634)
3. Sale of an heir of his hereditary rights to a stranger (Art. 1088)
4. Sale of adjacent rural lands not exceeding 1 hectare (Art. 1621)
5. Sale of adjacent small urban lands bought merely for speculation (Art.
1622)
Q: Are there other instances when the right of legal redemption is also granted?
A:
1. Redemption of homesteads 2. Redemption in tax sales 3. Redemption by judgment debtor 4. Redemption in extrajudicial foreclosure 5. Redemption in judicial foreclosure of
mortgage
Q: When does legal redemption period begin to run?
A: The right of legal redemption shall not be exercised except within 30 days from the notice in writing by the prospective seller, or seller, as the case may be. The deed of sale shall not be recorded in the Registry of Property unless accompanied by an affidavit of the seller that he has given written notice thereof to all possible redemptioners. (Art. 1623, NCC)
C. EQUITABLE MORTGAGE
Q: What is an equitable mortgage?
A: One which lacks the proper formalities, form or words or other requisites prescribed by law for a mortgage, but shows the intention of the parties to make the property subject of the contract as security for a debt and contains nothing impossible or contrary to law
Q: What are the essential requisites of equitable mortgage?
A:
1. Parties entered into a contract of sale 2. Their intention was to secure an
existing debt by way of a mortgage.
Q: What is the rule on the presumption of an equitable mortgage?
A: A sale with conventional redemption is deemed to be an equitable mortgage in any of the following cases: (Art. 1602) AIR‐STAR
1. Price of the sale with right to repurchase is unusually Inadequate 2. Seller Remains in possession as lessee
or otherwise
3. Upon or after the expiration of the right to repurchase Another instrument
extending the period of redemption or granting a new period is executed 4. Purchaser Retains for himself a part of
the purchase price
5. Seller binds himself to pay the Taxes on the thing sold
6. In any other case where the real intention of the parties is that the transaction shall Secure the payment of a debt or the performance of any other obligation.
7. Art. 1602 shall also apply to a contract purporting to be an Absolute sale. (Art.
1604)
Note: In case of doubt in determining whether it is equitable mortgage or sale a retro (with right of repurchase); it shall be construed as equitable mortgage.
Remedy is reformation.
An equitable mortgage is one which although lacking in some formality, or form or words, or other requisites demanded by a statute, nevertheless reveals the intention of the parties to charge real property as security for a debt, and contains nothing impossible or contrary to law.
Q: Does inadequacy of price constitute proof sufficient to declare a contract as one of equitable mortgage?
A: Mere inadequacy of the price is not sufficient.
The price must be grossly inadequate, or purely shocking to the conscience. (Diaz, p. 186)
Q: X transferred three parcels of land in favor of Y. The transaction was embodied in two Deeds of Absolute Sale for the price of P240, 000. The titles of said lots were transferred to Y.
However, X failed to vacate and turn over the purchased lots. This prompted Y to file an ejectment suit against X. X claimed that the transactions entered between them were not actually sales, but an equitable mortgage. Does the transaction involve an absolute sale or an equitable mortgage of real property?
A: It is an absolute sale. Decisive for the proper determination of the true nature of the transaction between the parties is the intent of the parties. There is no conclusive test to determine whether a deed absolute on its face is really a simple loan accommodation secured by a mortgage. To determine whether a deed absolute in form is a mortgage in reality, the court is not limited to the written memorials of the transaction. This is so because the decisive factor in evaluating such agreement is the intention of
the parties, as shown not necessarily by the terminology used in the contract but by all the surrounding circumstances, such as the relative situations of the parties at that time; the attitudes, acts, conduct, and declarations of the parties; the negotiations between them leading to the deed; and generally, all pertinent facts having a tendency to fix and determine the real nature of their design and understanding. As such, documentary and parol evidence may be submitted and admitted to prove the intention of the parties. (Sps Austria v. Sps Gonzales, G.R. No.
147321, Jan. 21, 2004)
Q: Ceballos was able to borrow from Mercado certain sum of money and as security, she executed a Deed of Real Estate Mortgage over the subject property. The said mortgage was not registered. Ceballos defaulted. Thereafter, a Deed of Absolute Sale was executed by Ceballos and her husband whereby the mortgaged property was sold to Mercado for the price of P16, 500.00. Ceballos offered to redeem the property from Mercado for the price of P30, 000.00 but the latter's wife refused since the same was already transferred in their names by virtue of the Deed of Absolute Sale. As a consequence, Ceballos filed the case contending that the Contract should be declared as an equitable mortgage. Is the contention of Ceballos correct?
267
U N I V E R S I T Y O F S A N T O T O M A S F a c u l t a d d e D e r e c h o C i v i l
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
A: No. The instances when a contract, regardless of its nomenclature, may be presumed to be an equitable mortgage are enumerated in Art. 1602 of the Civil Code. Here, none of those circumstances were present. The original transaction was a loan. Ceballos failed to pay the loan; consequently, the parties entered into another agreement — the assailed, duly notarized Deed of Absolute Sale, which superseded the loan document. Ceballos had the burden of proving that she did not intend to sell the property and that Mercado did not intend to buy it; and that the new agreement did not embody the true intention of the parties. (Ceballos v. Intestate Estate of the Late Emigdio Mercado, G.R. No.
155856, May 28, 2004)
Q: Eulalia was engaged in the business of buying and selling large cattle. In order to secure the financial capital she advanced for her employees (biyaheros) she required them to surrender TCT of their properties and to execute the corresponding Deeds of Sale in her favor.
Domeng Bandong was not required to post any security but when Eulalia discovered that he incurred shortage in cattle procurement
operation, he was required to execute a deed of sale over a parcel of land in favor of Eulalia. She sold the property to her grandniece Jocelyn who thereafter instituted an action for ejectment against the Spouses Bandong. To assert their right, Spouses Bandong filed an action for annulment of sale against Eulalia and Jocelyn alleging that there was no sale intended but only equitable mortgage for the purpose of securing the shortage incurred by Domeng in the amount of P70, 000.00 while employed as “biyahero” by Eulalia. Was the deed of sale between Domeng and Eulalia a contract of sale or an equitable mortgage?
A: It is an equitable mortgage. In executing the said deed of sale, Domeng and Eulalia never intended the transfer of ownership of the subject property but to burden the same with an encumbrance to secure the indebtedness incurred by Domeng on the occasion of his employment with Eulalia. The agreement between Dominador and Eulalia was not avoided in its entirety so as to prevent it from producing any legal effect at all. Instead, the said transaction is an equitable mortgage, thereby merely altering the relationship of the parties from seller and buyer, to mortgagor and mortgagee, while the subject property is not transferred but subjected to a lien in favor of the latter. (Sps. Raymundo, et al. v. Sps. Bandong, G.R. No. 171250, Jul. 4, 2007)
G. DISTINGUISHED FROM OPTION TO BUY
Q: On May 19, 1951, the spouses‐sellers executed a public instrument of absolute sale in favor of the buyer for a consideration which is sufficiently adequate. A few days thereafter, the buyers executed in favor of the sellers an option to buy within one year, the property subject of the absolute sale, which option was extended for a month. Prior to the expiration of said one‐
year period, the buyer sold said property to a third person.
If the spouses‐sellers would file an action for reformation of instrument where they seek reformation of the absolute sale into one of equitable mortgage, will said action prosper?
A: No, it will not prosper. If a seller has been granted merely an option to buy (not a right to repurchase) within a certain period, and the price paid by the buyer is adequate, the sale is absolute and cannot be construed nor presumed to be one of equitable mortgage, even if the period within which to exercise the option has been extended.
(Villarica, et. al. v. CA, G.R. L‐19196, Nov. 29, 1968)
Note: SC held that in this case, there was no sale a retro and that the right of repurchase is not a right granted the seller by the buyer in a separate instrument. Such right is reserved by the vendor in the same instrument of the sale as one of the stipulations in the contract.
Also, once the instrument of absolute sale is executed, the seller can no longer reserve the right of repurchase and any right thereafter granted the seller by the buyer cannot be a right of repurchase but some other rights, like that of an option to buy.
XV. LAW ON SALE OF SUBDIVISION AND CONDOMINIUM (PD 957)