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Pledge, Mortgage and Antichresis

The document discusses requirements for pledge and mortgage contracts under Philippine law. Specifically, it states that for a pledge or mortgage to be valid it must secure fulfillment of a principal obligation, the pledgor/mortgagor must own the property, and they must have permission to engage in the transaction. Mortgages can only involve immovable property or real rights over immovables, though movables can be involved in chattel mortgages. Mortgage documents must be recorded for the mortgage to be valid against third parties. Pledges and mortgages are indivisible even if the underlying debt is divided. Creditors cannot automatically take pledged/mortgaged properties or forbid their sale.

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269 views2 pages

Pledge, Mortgage and Antichresis

The document discusses requirements for pledge and mortgage contracts under Philippine law. Specifically, it states that for a pledge or mortgage to be valid it must secure fulfillment of a principal obligation, the pledgor/mortgagor must own the property, and they must have permission to engage in the transaction. Mortgages can only involve immovable property or real rights over immovables, though movables can be involved in chattel mortgages. Mortgage documents must be recorded for the mortgage to be valid against third parties. Pledges and mortgages are indivisible even if the underlying debt is divided. Creditors cannot automatically take pledged/mortgaged properties or forbid their sale.

Uploaded by

NecoBlags
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Title XVI.

- PLEDGE, MORTGAGE AND ANTICHRESIS

CHAPTER 1
PROVISIONS COMMON TO PLEDGE AND MORTGAGE

Art. 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)

CHAPTER 3
MORTGAGE

Art. 2124. Only the following property may be the object of a contract of mortgage:
(1) Immovables;
(2) Alienable real rights in accordance with the laws, imposed upon immovables.

Nevertheless, movables may be the object of a chattel mortgage. (1874a)

Art. 2125. In addition to the requisites stated in Article 2085, it is indispensable, in order
that a mortgage may be validly constituted, that the document in which it appears be
recorded in the Registry of Property. If the instrument is not recorded, the mortgage is
nevertheless binding between the parties.

The persons in whose favor the law establishes a mortgage have no other right than to
demand the execution and the recording of the document in which the mortgage is
formalized. (1875a)

Art. 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 expected 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. (1860)
Art. 2090. The indivisibility of a pledge or mortgage is not affected by the fact that the
debtors are not solidarily liable. (n)

Art. 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
payment to the creditor.

PACTUM COMMISORIUM – NOT ALLOWED


Automatic appropriation by the creditor of the thing pledged or mortgaged upon the
failure of the debtor to pay the principal obligation.

Art. 2088. The creditor cannot appropriate the things given by way of pledge or mortgage,
or dispose of them. Any stipulation to the contrary is null and void. (1859a)

Art. 2130. A stipulation forbidding the owner from alienating the immovable mortgaged
shall be void.

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