CPA in Transit Reviewer: Pledge, Mortgage and Antichresis 1

2017-2018 ed. RFBT

I. PLEDGE AND MORTGAGE
Promise to Deliver
Essential Requisites An accepted promise to deliver something,
1. Constituted to secure the fulfillment by way of commodatum or simple loan is
of a principal obligation; binding upon the parties, but the
2. Pledgor or mortgagor be the commodatum or simple loan itself shall not
absolute owner of the thing pledged be perfected until the delivery of the object
or mortgaged; of the contract.
3. Persons constituting it have the free
disposal of their property, or legally
authorized for the purpose;
4. When principal obligation became Commodatum Mutuum
due, thing pledged or mortgage may Non-consumable
Consumable things
be alienated for payment of the things
creditor Ownership is Ownership is
Kinds of Loan retained by the transferred to the
1. Commodatum- bailor (lender) owner borrower
delivers to the bailee (borrower) a May be gratuitous or
non-consumable thing so that the Essentially onerous with
latter may use it for a certain time gratuitous stipulation to pay
and return the same interest
2. Simple loan or mutuum- lender Borrower need only
delivers to the borrower a Borrower must
pay the same
consumable thing upon the return the same
amount of the same
condition that the latter shall pay the thing loaned
kind and quality
same amount of the same kind and May involve real or Only involves
quality personal property personal property
Loan for use or
Cause or consideration Loan for
temporary
1. Acquisition of the thing for the consumption
possession
borrower Bailor may demand
2. Right to demands its return or its Lender may demand
the return of the
equivalent as to the lender the return before the
thing loaned before
lapse of the term
the expiration of the
Consumable vs Non-consumable agreed upon
term
a.) Consumable- movable which Borrower bears risk Lender bears risk of
cannot be used in a manner of loss loss
appropriate to its nature without its Not personal in
being consumed. (art. 418) Personal in character
character
b.) Non-consumable- a movable which
can be used in a manner appropriate II. LOAN DISTINGUISHED FROM
to its nature without its being OTHER CONTRACTS
consumed. (art. 418).

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2017-2018 ed. RFBT
A.) LOAN VS CREDIT
Loan Credit
B.) SIMPLE LOAN VS RENT OR Delivery by one
LEASE party and the
Simple Loan Rent or Lease receipt of another of Ability of a person to
Lender loses his Owner loses control a given sum of borrow money or
property for the in a limited way for money or other things
borrower becomes the duration of the consumable things,
the owner thereof. rent or lease to repay the same
Relationship is one The relationship is Interest is taken at
of lender and one of lessor and Interest is taken on
the expiration of the
borrower lessor advance
credit
Always on a double Always on a single
C.) LOAN VS DEPOSIT name paper name paper
Loan Deposit Loan Sale
Purpose- to grant its Purpose- Real contract Consensual contract
use to the borrower safekeeping by Generally unilateral Bilateral and
depository because only reciprocal
Generally, the The return of borrower has
borrower pays only deposited things can obligation
at the end of the be demanded by the III. COMMODATUM
period depositor at any time
Relationship is that Relationship is that Nature
of lender and that of depository a.) Purpose- the temporary use of the
borrower and depositary thing loaned.
There can be No compensation of b.) Subject- non-consumable things,
compensation of things deposited whether real or personal.
credit with each other
NOTE: it is an essential feature of the
D.) LOAN VS IRREGULAR DEPOSIT contract of commodatum that the use of
the property of another shall be “for a
Loan Irregular Deposit
certain time”
Borrower can use Depository can also
and will return only use
Characteristics
at end of period
1. Real- perfected by delivery
granted
2. Principal- can stand alone by itself
Lender has no Irregular deposit has
3. Gratuitous- otherwise the contract
preference over preference
is one of lese
other creditors
4. Personal in nature- because of the
Essential cause is Essential use is the
trust
necessity of special benefit for
borrower depositor
Bailee’s Right of Use
E.) LOAN VS SALE

Ver. 1.00 | BY: R.M.P

 CPA in Transit Reviewer: Pledge, Mortgage and Antichresis
2017-2018 ed.
Commodatum gives the right to use (jus
utendi) and not the right to the fruits (jus
fruendi), unless there is a stipulation to the
contrary. In such a case, however, the right
to get the fruits is merely incidental and not
the main cause of the contract.
Subject Matter
Subject matter is generally non consumable
things. Consumable things can be a subject
if they are merely to be exhibited or when
they are accessory to an industrial
establishment. Note that the consumable
thing in this case is non-fungible, for the
same must be returned.
Bailor Need not be the Owner
The contract of commodatum does not
transfer ownership. All that is required is
that the bailor has the right to the use of the
property which he is lending, and that he be
allowed to alienate this right to use.
Mercado and Ebora v. Aguilar
(C.A.) 45 O.G. 5th S. 118, Jun. 30, 1947
FACTS: Mercado, the occupant of a
stall in the Batangas market, allowed
Aguilar to occupy the same gratuitously
with the promise of Aguilar to return it
upon demand. Aguilar claims that
Mercado has no right to demand because
Mercado, being a mere lessee of the
Batangas municipality had no right to
cede its occupancy in commodatum.
HELD: Mercado had the right to give it
in commodatum. If a lessee, by a contract
of a sub-lease, may transfer to another
the enjoyment of the thing leased for a
consideration, there is no reason why he
should be unable to cede gratuitously its
Ver. 1.00 | BY: R.M.P
3
RFBT
use to the commodatory. Aguilar should
return the stall.
Personal in Character
Due to the nature that commodatum is
purely personal in nature, consequently:
1. Death of either party extinguishes
the contract
a. Exception: (1) If there is
stipulation to the contrary (2) if
there are two or more
borrowers, the death of one
does not extinguish the
contract unless there is
stipulation to the contrary.
2. Bailee can neither lend nor lease the
object of the contract to a third
person
a. Exception: Members of Bailee’s
household may make use of the
thing loaned except when (1)
there is a stipulation to the
contrary (2) the nature of the
thing forbids such use.
Right to Fruits
 General Rule: Bailee is not entitled to
the fruits, other wise contract may be
one of usufruct.
 Exception: if there is a stipulation
Fruits should, as a rule, pertain to the
owner of the thing producing the fruits, but
the stipulation is valid because liberality is
still the actual cause or consideration of the
contract.
IV. OBLIGATIONS OF THE BAILEE
The bailee have the following obligations
1. Liability for ordinary expenses
2. Liable for loss of the thing
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2017-2018 ed. RFBT
3. Liability for deterioration of thing
loaned
4. Obligation to return the thing
loaned

Ordinary Expense
Bailee is liable for ordinary expense
because it is necessary for the preservation
for the thing loaned and he must take good
care of the thing with the diligence of a
good father of a family.

Loss of thing loaned

Bailee must excersise proper diligence with
reguard to the care and preservation of the
thing loaned
 General rule: Bailee is not liable for loss
or damages due to fortuitous events
 Exception: Bailee is liable under the
following
a.) He devotes the thing to any purpose
different from that for which it was
loaned (bad faith);
b.) If he keeps it longer than the period
stipulated, or after the
accomplishment of the use for
which the commodatum has been
constituted (in delay);
c.) If the thing loaned is transferred
with appraisal of its value, unless
there is a stipulation exempting the
bailee from responsibility in case of
fortuitous event (parties intended
that borrower shall be liable);
d.) If he lends or leases the thing to a
third person, who is not a member
of his household (violation of the
personal character);
e.) If, being able to save either the
thing borrowed or his own thing, he
chose to save the later (failure to
exercise due diligence)

Ver. 1.00 | BY: R.M.P