FACTORES ADMINISTRATIVOS QUE AFECTAN LA ADHERENCIA DEL

3. PRESENTACIÓN Y ANÁLISIS DE RESULTADOS

3.2 FACTORES ADMINISTRATIVOS QUE AFECTAN LA ADHERENCIA DEL

Art. 2076. The obligation of the guarantor is extinguished at the same time as t hat of the debtor, and for the same causes as all other obligations. Because gua ranty is an accessory and subsidiary contract, it is extinguished once the princ ipal obligation is extinguished. But the extinguishment of the guaranty does not always carry with it the extinguishment of the principal obligation. Any agreem ent between the creditor and the principal debtor which essentially varies the t erms of the principal contract without the consent of the surety will release th e surety from liability. This is because the alteration would result in a novati on of the principal contract which is consequently extinguished and replaced wit h a new one. Since the old principal contract is extinguished, the accessory con tract of guaranty/surety is also extinguished. When is an alteration material? T here must be a change which imposes a new obligation or added burden or which ta kes away some obligation already imposed, changing the legal effect of the contr act. Examples: 1. 2. 3. Increase in the principal amount, regardless of the exte nt of the liability assumed by the guarantor Substitution of the principal debto r Extension or shortening of the term of the principal debt

In these cases, the guaranty is extinguished altogether. Decrease in the amount of the principal obligation: The guaranty subsists and is benefited by the chang e since the guarantor cannot bind himself for more than the principal obligation .

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Art. 2077. If the creditor voluntarily accepts immovable or other property in pa yment of the debt, even if he should afterwards lose the same through eviction, the guarantor is released. This is a case of dacion. Since dacion extinguishes t he principal obligation, the accessory obligation is also extinguished and is no t revived even if the creditor is subsequently evicted from the property. Art. 2 078. A release made by the creditor in favor of one of the guarantors, without t he consent of the others, benefits all to the extent of the share of the guarant or to whom it has been granted. A, B, C are guarantors of X for 90K. The credito r releases A without the consent of B and C. The release should benefit B and C to the extent of 30K (A's share). They shall be liable only for 60K or 30K each. A , B, C are guarantors of X for 90K. The creditor releases A with the consent of B and C. Since B and C consented to the release, their liability is still 90K or 45K each. Art. 2079. An extension granted to the debtor by the creditor without the consent of the guarantor extinguishes the guaranty. The mere failure on the part of the creditor to demand payment after the debt has become due does not o f itself constitute any extension of time referred to herein. If the creditor gr ants the debtor an extension of time within which to comply with the principal o bligation, the guaranty is extinguished. This is because the principal debtor co uld become insolvent during the extension period, and the guarantor would not be able to ask for reimbursement. But if the guarantor consents or waives his righ t under this article in advance, the extension will not extinguish the guaranty.

It is immaterial whether the guarantor suffers actual prejudice as a result of the extension. The length of time of the extension is also immaterial. As long a s the period is extended, the guaranty is extinguished. The extension must be ba sed on a new agreement between the debtor and creditor. If the creditor merely f ails to make a demand on due date, it is not an extension. Can the guarantor sue the creditor for his delay in making a demand, thereby lengthening the risk of the insolvency of the principal debtor? No. Art. 2080. The guarantors, even thou gh they are solidary, are released from their obligation whenever by some act of the creditor they cannot be subrogated to the rights, mortgages and preference of the latter. Art. 2081. The guarantor may set up against the creditor all the defenses which pertain to the principal debtor and are inherent in the debt; but not those that are purely personal to the debtor.

Chapter 4 Legal and Judicial Bonds

The only important thing you have to remember about a legal bond is that it is a surety. Therefore there is no benefit of excussion.

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PLEDGE AND MORTGAGE PROVISIONS COMMON TO PLEDGE AND MORTGAGE

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. (4) Third persons who are not parties to the principal obligation may secure the lat ter by pledging or mortgaging their own property. Article 2086. The provisions o f article 2052 are applicable to a pledge or mortgage. [A guaranty cannot exist without a valid obligation. However, it may guarantee the performance of a voida ble or unenforceable contract or a natural obligation] Article 2087. It is also of the essence of these contracts that when the principal obligation becomes due , the things in which the pledge or mortgage consists may be alienated for the p ayment to the creditor. WHAT IS PLEDGE? It is a contract by virtue of which the debtor delivers to the creditor or to a third person a movable or a document inv olving incorporeal rights for the purpose of securing the fulfillment of a princ ipal obligation with the understanding that when the obligation is fulfilled, th e thing delivered shall be returned with all its fruits and accessions. What are the kinds of pledge? Pledge may be either: 1. 2. Voluntary or conventional (cre ated by agreement of the parties); Legal (by operation of law).

What are the characteristics of pledge? [RAUS] Pledge is:

1. Real, because it is perfected by delivery of the thing pledged. 2. Acessory, because it has no independent existence. 3. Unilateral, because it creates an ob ligation solely on the part of the creditor to return the

thing pledged upon fulfillment of the principal obligation.

4. Subsidiary, because the obligation of the creditor does not arise until fulfi llment of the

principal obligation. WHAT IS THE CONSIDERATION IN PLEDGE? If the pledgor is als o the debtor, the consideration is the principal contract. If the pledgor is a t hird person, the cause it the compensation received or the liberality of the ple dgor. WHAT ARE THE DIFFERENCES BETWEEN PLEDGE AND MORTGAGE?

1. Mobility ± pledge is constituted on movables; mortgage on immovables. 2. Delive ry ± pledge requires delivery for perfection; mortgage does not.

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3. Requisites to bind third person/s ± pledge, to bind third persons must be in a public

instrument; mortgage, must be registered in the proper registry. A LOAN IS SECUR ED BY BOTH A PLEDGE AND A GUARANTY. CAN THE CREDITOR REFUSE PAYMENT BY THE GUARA NTOR AND CHOOSE TO FORECLOSE IN ORDER TO SATISFY THE DEBT? No, payment by the gu arantor cannot be refused. WHAT ARE THE ESSENTIAL REQUISITES OF PLEDGE AND MORTG AGE? [PRADO]

1. Purpose - To secure fulfillment of principal obligation; 2. Real ± There must b e delivery of the thing. 3. Alienation ± when the principal obligation becomes due and the debtor defaults, the thing

may be alienated to satisfy the former.

4. Disposal ± Pledgor/mortgagor must have free disposal of the thing or capacity t o dispose. 5. Ownership ± Pledgor/mortgagor must be the absolute owner of the thin g;

PURPOSE: To secure fulfillment of a principal obligation

WHAT IF THE THING PLEDGED/MORTGAGED IS SUBSEQUENTLY LOST; WHO BEARS THE LOSS? IS THE PRINCIPAL OBLIGATION EXTINGUISHED? The pledgor bears the loss. Remember tha t there hasn't been transfer of ownership. The principal obligation is of course n ot extinguished, the pledge/mortgage is only accessory. However, the debtor must replace the thing or lose the benefit of the period. Pledge/mortgage is a direc t lien on the property. It is better than guarantee because the property pledged can be sold upon default by the debtor, unlike in guaranty where several requir ements have to be complied with first. PROBLEM: D TRANSFERS PROPERTY TO C AND AT THE SAME TIME EXECUTES AN INDEMNITY AGREEMENT; OR D TRANSFERS PROPERTY TO C TO SECURE AN EXISTING OBLIGATION. HOW WILL THE TRANSFER BE CHARACTERIZED? Both tran sfers will be characterized as pledges.

REAL: There must be delivery of the thing to perfect the contract.

An agreement to pledge, when there is breach, gives rise to damages.

ALIENATION: When the principal obligation becomes due and the debtor defaults, t he thing may be alienated to satisfy the former.

DOES THE CREDITOR HAVE TO GO TO COURT TO ENFORCE THE PLEDGE OR MORTGAGE? No, to require litigation would be to nullify the lien and defeat the purpose of the co ntract.

FREE DISPOSAL:

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WHAT DO ªFREE DISPOSALº AND ªCAPACITY TO DISPOSEº OF THE PROPERTY MEAN? Free disposal me ans that the property is not subject to any claim by a third person. Capacity to

dispose means that though the pledgor/mortgagor does not have free disposal, th e third person with a claim authorized him to dispose (tingin ko lang). In case of corporations, the board should adopt a resolution to approve the pledge/mortg age. If what is to be pledged or mortgaged constitutes all of the corporation's as sets, 2/3 of outstanding capital stock must approve. Rule on consent: If pledgor /mortgagor is married, consent of spouse is needed; if agent, authorization of p rincipal. For married persons ± how to wiggle out of a pledge or mortgage agreemen t: Pledge or mortgage your conjugal property without your spouse's signature. In c ase the property is foreclosed, you can raise the defense that there was no cons ent (remember, half consent is no consent!) What if the pledge was constituted t o secure an obligation of the family business, doesn't this redound to the benefit of the conjugal partnership? No, JPSP said that the pledge of conjugal property con only be considered to redound to the benefit of the partnership if the fami ly business is constituting pledges. If you are the pledgee/mortgagee, check if pledgor/mortgagor has authority to dispose of the property. Another example on f ree disposal or legal authority: Ex. Pledgor corporation is placed under receive rship. The corporation cannot pledge shares of stock because pledge is a disposi tion requiring court approval.

OWNERSHIP:

CAN FUTURE PROPERTY BE PLEDGED? No, it is essential that the pledgor be the abso lute owner of the thing. Note: It is the sale and not the registration in the LT O that transfers ownership of a vehicle. Note: A co-owner can only pledge/mortga ge his ideal share in the co-ownership. Note: A mortgagor can rely on what is on the face of the Torrens title. WHAT IS MEANT BY ABSOLUTE OWNERSHIP? BOTH BENEFI CIAL AND LEGAL TITLE must vested in the pledgor/mortgagor Ex. Trustee is legal o wner of shares of stock; trustor is beneficial owner: Neither can pledge the sha res. Pledge/mortgage can't be constituted without a principal obligation even if t here is a subsequent principal obligation. This is different from situation wher e the lender extends a credit line for 1M, though borrower has not yet drawn, th e credit line can still be secured via pledge/mortgage. Ex. deed of assignment/a bsolute sale to secure fulfillment of obligation implied trust according to the SC. this is a mortgage or an

The pledgor/mortgagor must be absolute owner of the thing or the property. The c reditor may rely on the title/stock certificate if there is no notice of defect in title. However, failure of the pledgor to present the thing is a red flag tha t should put the pledgee on guard as to the pledgor's right to pledge the thing.

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Though the pledgor must own the thing and have free disposal of it, see the foll owing problem discussed in class: Ex. On day 1, stocks are sold to X with the co ndition that the sale will be effective if X tops the bar. On day 2, X pledges t he stocks. On day 3, the bar exam results come out, with X in the number one spo t. Is the pledge valid? Yes, the pledge is valid. Remember Oblicon, conditional obligations? The effects of a conditional obligation to give, when the condition happens, retroact to the date of the constitution of the obligation. OWNERSHIP RETROACTS TO DAY 1. In the above condition, what if the condition is resolutory?

As long as the pledge is registered in a public document, it is valid and bindi ng as to third persons. Ex: Day 1 - X receives from A shares of stock with the r esolutory condition that they shall be returned to A if X does not pass the bar.

Day 2 ± X pledges the shares. Day 3 ± X fails the bar. Is the pledge valid? Yes. As long as the pledgee registered the pledge in a public instrument, such pledge i s binding on A. *But if you use the argument that the effects retroact, doesn't th at mean that when X pledged the things, he wasn't the owner? I suppose the public instrument is stronger than the legal fiction. CAN THE CREDITOR IMMEDIATELY ACCE PT A PLEDGE FURNISHED BY A DEBTOR IF THE PLEDGE BELONGS TO A THIRD PERSON? No, t he creditor cannot require on the word of the pledgor/mortgagor alone, he must e xercise due care and make sure the pledge/mortgage has given consent. This is es pecially true in the banking industry, which is impressed with public interest.

WHAT IS THE CONSEQUENCE THEN IF THE CREDITOR DOES NOT VERIFY WITH THE PLEDGOR/MO RTGAGOR? The pledge/mortgage is null and void. Article 599 gives the owner of a movable who has been unlawfully deprived thereof the right to recover the same.

(1) Article 2088. The creditor cannot appropriate the things given by way of ple dge or mortgage, or

dispose of them. Any stipulation to the contrary is null and void. WHAT DOES THE CREDITOR WITH THE PLEDGE/MORTGAGE WHEN THE DEBTOR DEFAULTS? The creditor can mo ve for the sale of the thing pledged or mortgaged. WHAT IF THE CREDITOR WANTS TO ACQUIRE THE THING? He may purchase it at the public auction. WHAT IF THERE IS A STIPULATION THAT THE CREDITOR WILL ACQUIRE THE THING UPON DEFAULT? The stipulat ion (pactum commissorium) is null and void. WHAT ARE THE REQUISITES FOR PACTUM C OMMISSORIUM TO EXIST? 1. There should be a pledge/mortgage; the debtor. ARE THER E ANY EXCEPTIONS TO PACTUM COMMISSORIUM?

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2. There should be a stipulation for AUTOMATIC appropriation or the thing in cas e of default by

Yes, Article 2112 provides that if the thing pledged or mortgaged is not sold in two public auctions, the creditor may appropriate the same. WHAT IS THE REASON FOR THE PROHIBITION? The value of the thing pledged or mortgaged is usually more than the amount of the obligation. WHAT HAPPENS TO THE CONTRACT OF PLEDGE/MORTG AGE IF THERE IS A STIPULATION OF PACTUM COMMISSORIUM; IS IT VOID? No, only the s tipulation is void; the principal contract will subsist. HOW CAN YOU OPT OUT OF THE PROHIBITION ON PACTO COMMISSORIO? 1. 2. 3. You can enter into another contra ct subsequent to the pledge/mortgage. The prohibition applies only to stipulatio ns made in the contract of pledge/mortgage. The debtor can voluntarily cede the property to the creditor. This would in effect be a novation of the pledge/mortg age. There can be a stipulation where the debtor merely promises to sell; non-co mpliance would give the creditor, not a right to the property, but an action for damages. ownership of the property upon foreclosure. Examples on pactum commiss orium: Ex. X corporation pledges shares; the pledge agreement states that pledge e has authority to instruct Corporate Secretary of X to transfer shares in name of pledgee in case of default. VALID? NO. The execution of document transferring the shares is only a confirmation of the sale that was already consummated auto matically. Ex. If the agreement is that, upon default, pledgee sells the things pledged at market price and applies profits to the outstanding obligation. Valid

? Yes. There is no automatic transfer of ownership. In fact, the sale of the thi ng to satisfy the obligation is the essence of pledge. Ex. Upon default, pledgor conveys property to pledgee by dation; and for the purpose, pledgee is attorney in fact of pledgor. Valid? YES. It is not automatic; there is need for another agreement to be entered into. Ex. Pledgee has the option to purchase the thing u pon default at price certain. Valid? Yes. There must be a subsequent sale; it is not automatic. Remember, for PC to exist, the EFFECTIVE ACT IS DEFAULT, upon wh ich, there is automatic transfer of ownership. Article 2089. A pledge or mortgag e is indivisible, even though the debt may be divided among the successors in in terest 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 share of extinguishment of the pledge or mortgage as long as the debt is not completely satisfied. Neither can the creditor's heir who has received his share of the debt return the pledge o r cancel the mortgage, to the prejudice of the other heirs who have not yet 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 determina te portion of credit. The debtor, in this case, shall have the right to the exti nguishment of the pledge or mortgage as the portion of the debt for which each t hing is specially answerable is satisfied. Article 2090. The indivisibility of a pledge or mortgage is not affected by the fact that the debtors are not solidar ily liable.

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4. There can be a stipulation granting the creditor authority to take possession and not

WHAT DO YOU MEAN PLEDGE/MORTGAGE IS INDIVISIBLE? Ex: 1M Loan. It was secured by REM. The REM covered several (100) condominium units. In accordance with the sch edule, there was payment of 100K, can you ask release of corresponding amount of units? No release. Pledge is indivisible. WHAT ARE THE EXCEPTIONS TO INDIVISIBI LITY: 1. Where each one of several thing guarantees a determinate portion of cre dit. Ex: If you have 100 mortgages securing corresponding portion of the loan, t hen when the corresponding portion is paid, the corresponding pledge/mortgage is extinguished. All 100 mortgages may be in the same document. Or, if the parties agree to allow partial discharge of the pledge/mortgage. How? Cancel pledge/mor

In document FACTORES QUE AFECTAN Y ESTRATEGIAS QUE FAVORECEN LA ADHERENCIA DEL PACIENTE CON CÁNCER AL TRATAMIENTO CON QUIMIOTERAPIA HERMES ANDREY MOGOLLÓN CORREA PONTIFICIA UNIVERSIDAD JAVERIANA FACULTAD DE ENFERMERÍA BOGOTÁ, D. C. 2010 (página 34-37)