Professional Documents
Culture Documents
TABLE OF CONTENTS:
3.
4.
5.
6.
7.
1.
2.
To show consent
o N.B. But for all, there must be delivery
What are the basic principles of the NIL?
o 1. Bad faith
drawer
4. The law will only protect you from personal defenses if you
Good faith
With value
o
o
each other
An overdue instrument is shouting to the high
fine
Creates a NEW obligation to pay, not a mere
or possessor
5. Where the instrument is addressed to a drawee, he must be
named or otherwise indicated with reasonable certainty
rates
When does the interest become 12% by default?
1. Unconscionable interest
No.
Does reimburse yourself from X
Yes.
demandable.
Is it valid to stipulate payment in foreign currency?
subject
to
the
formers
terms
and
conditions
Does mention of a CM securing the original obligation
make it non-negotiable?
one.
Is I will pay reasonable attorneys fees in case there is
such fund.
What is the rule on how the original obligation came
instrument
of a particular fund.
When does reference to a particular fund not
about?
destroy negotiability?
affect
unconditionality?
No.
What is the test?
fund
payment,
and
there
is
an
money.
Other view: negotiable the undertaking to
put up a security is merely an accessory
obligation.
Differentiate:
Why?
o It benefits everyone because all
other
secondary
contracts
o
o
are
discharged.
When the holder may absolutely choose to have the
obligation due, it is not negotiable.
Why?
o Everybody becomes
collateral securities
2. Authorizes confession of judgment if instrument not
What if
stipulation
3. Waiver of benefit of law
4. Waiver of notice of dishonor
5. Waiver of venue
6. Waiver of exemption from execution
the holder has the option to require something
secondarily
1. To bearer
checks.
cash)
In this example, it is not complete until Jose indorses
parties to a contract)
3. Drawee
4. Two or more payees jointly
Santos
5. One or some of several payees
bearer.
HELD: it is payable to
partnership.
but not A or B
6. Holder of an office for the time being
certainty?
It is not negotiable.
When it is payable to bearer?
instrument.
So the
HELD:
Rodriguez
instrument.
Whenever the SLA lends to members, it issues postdated checks. But most of the time, the SLA does not
But what if the one who put the wrong date presented it for
is true as to him.
If Y inserted the wrong date instead and did not
instrument.
Ex. X went abroad and left signed checks for payment of
What happens?
enforceable?
P60000 from X?
given to him
a HIDC
Ex. You cannot sue if you hold checks that were not delivered
to you. You never acquired a right over them.
personal defense
BPI Family Savings: BPI issued a check payable to City
Treasurer of Iloilo to pay for local taxes. They did not deliver it
The
it as either
6. Ambiguous role of signature deemed an indorser
o Because the indorser has the least liability among all
Somehow,
the checks fell into the hands of someone else, who indorsed it
solidarily liable
seller was wondering why she wasnt being paid. [If you are
legalistic, the RTW seller must sue the shopping malls, etc.,
Signature
shopping malls, etc. must sue the drawee banks, and then the
drawee banks sue Associated Bank why it cleared the checks.
HELD:
Rules of interpretation
characters in a NI
7. If I promise to pay note is signed by two or more persons deemed
The words
prevailed.
2. Payment of interest
o Runs from date from instrument
o Or if none, date of issue
o
o
Forgery
instrument)
B. Bearer instrument: A (signature forged by B)-B-C-D-E
negotiable instrument
3. Duress amounting to forgery
signature is forged)
estopped
2. An acceptor who pays on a BOE cannot recover the money
drawer
3. A Holder in Due Course acquires good title if forged
from him
If E is a holder in due course, he may collect
forgery].
He can run after D, because by indorsing the
instrument (even if bearer), he warranted it.
(due to warranties)
No. No consent.
signatures.
Can E run after A, B, or C?
Yes, he forged.
F. BOE issued by A payable to B or bearer C (signature
Cs signature.
Can X get money back from E?
is genuine.
What is Xs remedy?
o Sue B, the forger.
instrument
indorsers.
D. Bearer instrument, but an indorsers signature was forged
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but Triumph did not report it to the bank. Robbers were able to
cash checks.
is a personal defense)
What are the exceptions to these general rules?
o 1. When there is estoppel (ex. father saying that his sons
o
theft.
Sued bank, which refused to reinstate the amounts. Bank argued Casa
An external auditor is not an employee.
the
loss
for
his
HELD:
bear
It is an
forge the signatures of the officers of Casa Montessori over a long time.
was negligent.
o HELD:
The
Province issues
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the drawer.
This 24 hour rule SHOULD NOT apply when it is the
payees or indorsees signature that is forged,
warranty.
X, employee of Ford, was tasked to pay sales tax (P18M), made a check
worthless check was deposited. X stole the real check, and Citibank
honored it. X collected from Bank of America. Ford had to pay BIR
again. They sued.
o HELD: Citibank must return the money to Ford, because Ford
liability.
o Check: G.R. 121413 29 Jan. 2001
Rules on clearing
o Checks are brought to a clearing house and are run through a
o
o
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sacks of rice.
wrong for asking the agency to prove the value of the ticket
payee.
[Same facts] X accepted. Can X refuse to pay on account
of partial failure of consideration?
Accommodation party
The
The seller
Surety
13
obligation.
May a corporation be an accommodation party?
o As a general rule: a corporation cannot be an accommodation
Negotiation
working capital. The bank required two other signors. The firm got the
spouses are accommodation parties. The court held that PNB is not a
holder in due course, because it knew that the spouses did not receive
cannot claim PNB was in bad faith when it released the money
make it cumbersome.
1. Prohibited to indorse to 2 or more indorsees severally.
Ex: A check for P100K is negotiated to Jose Cruz for
indorsement.
Where must the indorsement appear?
o On the instrument itself or to a paper attached to it
What must be indorsed?
o The entire instrument. Indorsing only part of the amount will
BF.
agreed to release part of the security money to help the project. But the
Prudencio spouses who issued checks. The project was failing. PNB
installments)
Types of indorsements:
o Special specified person to whom it is being indorsed
o Blank does not name any person
Indorsement of an order instrument in blank can
convert the indorsement into a special indorsement by
14
Ex.
Glenn
Tuazon
named
(indorsee
trustee)
Pay to Jose
Negotiabilit
Passing of
Consideratio
Defense
title
n presumed
available
Yes
Yes
X, because
Cruz only
indorsee is
a
as
HIDC,
defenses
(ex. 5 years), and the indorser does not want to be insecure for
against
indorser
cannot
To
Jose
Cruz,
for
Yes,
but
subject
to
X, because
X,
the
there
because
is
no
defenses
same
indorsee is
only
restriction
that he only
agent of the
be
holds it for
indorser
against
(as
agent only)
transfer of title
apply to him
Yes,
collection
mere
against
indorser can
collection
raised
o
because he
To
Jose
Yes,
but
Cruz,
as
subject
trustee
for
same trust
to
Yes
Yes,
there
because
is
transfer of title
just
indorsee
is
still negotiable
This can be done if the instrument will fall due for a long time
an
agent
X, because
collect from D?
Yes.
Because he warranted that the
title
transfers
to be.
15
because other parties will not know that there was a mistake
E.
What is the effect of a conditional indorsement?
o 1. The maker (or acceptor) may disregard the condition
fulfilled
3. If the maker pays, but the conditioned turned out to be
The conditional
solvent.
What is the effect of an indorser signing of an instrument payable
to bearer?
o It can still be indorsed through mere delivery
o But the special indorser is only liable to those who can make
o
o
made
If he wants, after signing as the misspelled name, he can sign
his real name, so it will appear wrong name indorsed to real
name
What if there is date attached to the negotiation?
o The date is presumed to be correct, but rebuttable.
o If there is no date, the negotiation is presumed to have been
done before it was overdue
instrument.
ABCDE. E cancels the indorsement of C to D. He
loses the right to run after C. D is also discharged, because D
represents
What is the effect if the name is misspelled?
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Status on payment
Knowledge
Effect
Holder is aware
HDC as to installments
HIDC
Indorsement to a prior indorser:
o Ex. A-B-C-D-E-B
o Can B run after C, D, and E?
no acceleration clause
An installment is not
Holder is aware
the instrument
Not a HDC
HDC as to installments
acceleration
clause
(automatic)
An installment is not
acceleration
the instrument
clause
(automatic)
An installment is not
HDC as to installments
clause
An installment is not
exercise
optional
acceleration
optional
the instrument
Not a HDC
acceleration
clause
This elaborates #3
When is there defect in the title of the indorser?
circumstances?
X issued a crossed check to Y, in order to buy a car from Z. However, Y
took the check and paid it to ABC hospital, and the value of the check
was greater than his bill to ABC hospital (which gave change).
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stopped payment.
ABC sued X.
has paid the full amount agreed upon as consideration for the
X told Y to just pay him P80K right away because X could not
payment right away, even if it was already due, and to let Y to draw the
wait for the maturity of the check. Y has only paid P40K so far.
Then Y found out that the check was issued for a fake ring.
but Y asked DEF not to present it for payment yet. And DEF
yet.
The claimant received a check that was not indorsed to it by the payee,
and the check had a notice of prior dishonor due to DAIF (drawn against
facts
What about a transferee who receives notice of infirmity before he
instrument?
o He is a HIDC only to the extent of the amount paid by him.
o Ex. X issued a post-dated check to Y with value of P100K, and
insufficient funds).
o HELD: Claimant is not a HIDC.
In two cases, there was lack or failure of consideration between the
maker/drawer and payee of the NI. In one case, it was merely issued as
security, and in the other, the car delivered had the wrong chassis
number. But in both cases, the payee already indorsed the check to
the check.
What are the rights of a HIDC?
o 1. Sue in own name and receive payment
o 2. Free from personal defenses
o 3. May enforce payment against all parties liable thereon
o Exception: when he cannot recover full payment
another person.
o HELD: Those persons are HIDCs and the defense of
38?
54 notice before full amount is paid
124 when materially altered, a HDC may still
enforce against the maker/drawee according to the
original tenor of the instrument
holder, too.
What about negotiation of an instrument payable on demand after
indorse it
But not everyone can invoke real defenses against a HDC. For
instance, an indorser warrants an instrument is genuine in all
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contract
Real defenses
with
some
it
Voidable contract
Ex: no consideration, undelivered
Void contract
Ex; material
force/illegal
illegal
corporation
Not applicable to HDC
Applicable to HDC
means,
alteration
(so
the
defective, then the holder has to prove that either the holder or
o
title occurred.
Fossum:
o X issued a check to Y, but there was failure of consideration. Y
negotiated to Z, who was not a HIDC (he was aware of the
effect?
to E.
mean the non-HDC cannot collect. It just means that personal defenses
holder anymore.
Liabilities of parties
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Maker
Drawer
Obligations
Warranties
<IF BY DELIVERY
1. Existence of payee
2. Capacity of payee to
to
indorse
1. Existence of payee
transferee>
1.
Instrument
If
dishonored,
process
of
and
dishonor
Either:
is
2. Capacity of payee to
1.
indorse
presentment
3. On due presentment,
accept/pay
it will be accepted/paid
to tenor
2. Or if dishonored, he
capacity to contract
2. Or to a subsequent
4. The instrument is
the holder, or to a
subsequent
the
completed:
1. He
will pay
the
amount to holder,
<But
express
Acceptor
General indorser
immediate
drawer
may
Upon
he
due
will
purports to be
according
indorser
compelled to pay it
time
of
his
indorsement
stipulation
1. Existence of drawer,
of acceptance
2.
Genuineness
of
Liability of Maker:
o X issued a PN to Y. Y collected, by X failed to pay. He lodged
the defense that he used the money to pay for his sick
drawers signature
3.
Drawers
capacity
trust administered by Y.
indorser by delivery
He made an unconditional
purports to be
2. He has good title
dishonored.
4. Has no knowledge of
any
fact
that
would
However, P was
20
E accepted it.
acceptance.
View 2 (better view): Acceptance is assent to the
such. Examples:
drawer to draw.
Acceptor admits existence and capacity of payee to indorse,
there first.
What is his liability?
It only
original tenor
Acceptor admits existence of drawer because without the
there.
parties
Unlike a general indorser, a qualified indorser does not warrant
that the instrument will be paid. He is liable only if the maker or
X is liable to B, C, D and E.
RULE: liable to all subsequent parties. (If payable to
check)
A (X irregular indorser) B C D E:
dealt with
What is the liability of a general indorser?
o 1. Same as first 3 warranties of qualified indorser
o 2. Last warranty he warrants that the instrument is valid and
subsisting
21
liable.
X deposited (through indorsement) a check with ABC bank,
drawn against DEF bank.
An employee X, received a
reimburse drawee?
to prove otherwise.
Ex. A B C, C can prove that while Bs signature appears
payment)
2. Notice of dishonor is given to the secondarily liable
party
In a BOE:
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2. If dishonored by non-acceptance:
acceptance)
3. If the bill is accepted:
notice
of
dishonor
to
needed
to
make
costs of collection.
When is a bill required to be presented for acceptance?
o [See enumeration above payable after sight etc., expressly
required, payable elsewhere]
o Note that a check does not fall under this enumeration
When is presentment for acceptance excused or dispensed with?
o 1. DELAY EXCUSED for bill payable elsewhere than place of
business or residence of drawee and the holder failed to
C) waiver or presentment
presentment except:
those
secondarily liable
B. (If foreign bill, protest for dishonor by non-
payment)
When is presentment for payment necessary?
o For primary persons never necessary
o For secondary persons, generally
and drawer
B. (If foreign bill, protest for dishonor by non-
acceptance
2. Drawee is dead, has absconded, is fictitious, or has no
capacity to contract
3. Presentment cannot be made even after exercise of
reasonable diligence
4. Although presentment has been irregular, acceptance
refused on some other ground
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as dishonored by non-acceptance
What if it is written on another paper?
acceptance
Who should give notice of dishonor?
o 1. The holder
o 2. His agent or representative
o 3. Any party who may be compelled to pay (e.g. indorsers)
o 4. Agent of #3
Who benefits from the notice?
o If given by the holder, benefits all subsequent holders and all
prior parties who have a right of recourse against the party to
whom it was given
value
What is the rule on future bills?
dishonors:
Same example:
24
next day
3. If sent by mail, deposited in post office in time to
would be dishonor.
When is notice of DH not needed to be given to indorser?
o 1. Drawee is fictitious person or has no capacity to contract
o
was made
3. Instrument was made or accepted for his accommodation
Indorser
be paid by drawee
Drawer
Drawer countermanded
payment
N.B. In all these cases, the drawer KNEW that there was or
Yes.
o Who is affected by a waiver in an instrument?
25
o
o
C indorsed the
Discharge
o
o
Material Alteration
instrument
right
How those secondarily liable are discharged:
o 1. Discharge of instrument
o 2. Intentional cancellation of his signature by the holder
o 3. Discharge of a prior party
o 4. Valid tender of payment by prior party
o 5. Release of principal debtor, unless holders right of recourse
o
o
o
o
Es right?
o Enforce the instrument for 4K against A or B
26
BOE
Yes.
draw.
Customer bought a managers check and asked that his account be
debited to purchase it.
because the account was actually closed. The customer already used
the check to buy goods.
o HELD: It was a managers check so the store owner was a
payment immediately
Rules on BOE apply to checks too, such as the 24 hour
acceptance rule. If you dont return it in 24 hours, it is deemed
drawer had insufficient funds. Presented again in the afternoon, but the
accepted
What are cashiers and managers checks?
o Drawer and drawee is the same
What are memorandum checks?
o Its just usually used as evidence of credit, by a drawer who
HIDC.
Certified checks:
o Banks usually do not do this anymore
Check must be presented for payment within reasonable amount of time
o Banking practice: 6 months, or else stale
o What happens when the check goes stale?
27
money.
Sito: When the payee delays in presenting a check for payment, the
arrives, PBC will tell ABC Company that the goods arrived.
PBC tells ABC Company that it will release the goods if there is
MERCANTILE INSTRUMENTS
Letters of credit
the goods can be used to pay PBC if ABC does not pay.
Dupont will not collect directly from PBC. Dupont will issue a
BOE addressed to PBC, to pay Dupont. Dupont then submits
HELD:
Cannot do this!
It is not an
28
Types of LOC?
o 1. Commercial LOC
not to order
Limited to fixed or specific amount or to an
an agreement
Show proof that the applicant has not performed his
obligations?
o 1. Buyer (applicant)
procures LOC
contract
3. Confirmed LOC
exactly
Who are the parties to a letter of credit (essential) and their
documents title
2. Issuing bank
reimbursement
Obligation is solidary with the buyer. It is a primary
is negotiated
When is it considered a consummated contract?
o When the bank pays the creditor (seller-exporter), and not
when the debtor-buyer pays the bank because the bank can
the obligor)
3. Seller (beneficiary)
customs.
2. Code of Commerce, Art. 568:
29
seller-exporter
4. Negotiating bank
the buyer that the goods delivered were the proper goods. The
buyer collected the goods but refused to send the certification!
HELD:
o
that
he
2. LOC
an invoice for pine lumber, but the invoice states pine timber,
pay
3. Misspellings If the LOC requires noodles but the
documents
will
All that is
30
refused. The bank did not pay. Later, the buyer just paid 1M to
Cojac.
Red clause
o A clause, usually written in red ink, where the beneficiary/seller
may get payment
if the
too.
CASE: The depositor/applicant owed the bank for a LOC, but
a stand-by LOC?
o 1) Proof of fraud is strong, 2) fraud must involve abuse of
deliver the goods, too bad. The buyer still bears the risk.
Evergreen clause
o A provision that allows an expiring LOC to be automatically
from a third party producer that does not accept anything but
to
meet
failure
Trust receipts
anytime
o Usually its irrevocable, for certainty of payment
Revolving letter of credit
31
where:
By fiction of law,
purchased. HELD: This is invalid. The bank did not have any
lien or title to the goods; they were purchased separately from
them yet.
Allied Banking: X imported goods, and opened a LOC with ABC bank.
When the equipment arrived, X took the goods from ABC and issued a
trust receipt in ABCs favor. X installed the goods in his factory. X failed
to pay. ABC sued X for violation of PD 115. X claimed the goods were
ABC was the real owner of the shells and X just held it in trust.
ABC bank
misappropriation.
Another case: X could not sell the goods covered by the TR.
company
For estafa, there has to be misappropriation
o Meralco/steel towers case: X fabricated steel towers (hired
The bank then returns the excess or runs after the deficiency.
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the transferee
3. The transferee can compel the transferor to
rights than the indorser, unlike under the NIL] and title
liable?
o No.
title
that it is non-negotiable?
over
the
goods,
so
the
him
Who can negotiate a WHR?
1. Owner thereof
instruments:
receipt:
negotiable.
For negotiable WHR, it cannot be converted into a
33
mere delivery
Can a thief negotiate a WHR?
right.
What are the obligations of the WHM?
o 1. Safeguard the goods
o 2. Deliver the goods
To deliver
the transferor
2. Right to notify the WHM of the transfer and acquire the direct
be found on a WHR?
o It does not invalidate the WHR. WHRs are liberally construed
What are the conditions before the WHM delivers the goods?
o 1. Holder pays the WHMs liens
o 2. If the WHR is negotiable, to surrender the receipt
o 3. Readiness and willingness to sign an acknowledgment of
receipt of the goods
To whom must the WHM deliver the goods to discharge his
liability?
o 1. Person lawfully entitled to the goods or his agent
o 2. Person entitled to delivery under non-negotiable WHR or
o
o
transfer?
goods
2. The holder of a WHR informs the WHM prior to
delivery not to make such delivery, but he still did
34
document is impounded
Failure
to
show
willingness
to
sign
an
deliver.
The WHM in general, as a bailee, cannot claim ownership over the
goods. What are the exceptions?
o 1. WHR negotiated to him, so takes the goods in his own right
o 2. Has unpaid lien, so he foreclosed it and bought the goods
during auction
What if the WHM delivers the goods without asking for surrender
of the WHR?
o He is liable for damages to any person who takes the WHR in
o
35
injunction or otherwise
What if the receipt is non-negotiable?
To safeguard
It is stipulated
It is customary to do so
What are the rules on commingled goods?
o Each depositor gets a pro rata portion of the common mass
enjoined
What can the creditor do?
negotiable receipt?
o There can be no attachment or levy of the goods unless the
o
o
36
upon claim
What happens if there is partial loss?
Negotiable WHR
void
him of the goods at the time of deposit would have been valid
When is the lien lost?
o 1. Surrendering possession of the goods
original tenor
If payable to bearer and it is
endorsed
in blank
HDC may obtain a title better than
order
Endorsee, even if he is a HDC,
specially,
it
will
same
be
bailment,
which
was
lost
upon
surrender.
o 2. Refusing to deliver the goods when he should have complied
How is the lien enforced?
o 1. Valid refusal to deliver the goods until the lien is satisfied
o 2. Causing EJ sale of the property and applying the proceeds
o
WHMs lien
INSURANCE
In general
and
expenses
for
notice,
Elements:
o 1. Insured possesses interest susceptible of pecuniary
estimation
o 2. Insured is subject to risk of loss
o 3. As consideration, the insured pays premium
Someone organized a jeepney association. They give membership fees
and if a driver gets into an accident, the association pays indemnity.
Sued by Insurance Commission for not having license to do Insurance
Business.
o Held: Was conducting insurance business without license. All
claims
2. All goods belonging to others which have been deposited by
requisites concurred.
the person who is liable for the claims if the person has been
37
an insurance contract.
collect.
What is the standing of mortgagors to sue on an insurance
contract and what is the effect of his acts?
o 1. The mortgagor can sue the insurance company if it does not
medical services. But here, even if you did not get injured or
sick, you can avail of medical checkup.
What are the characteristics of an insurance contract?
o 1. Aleatory
indemnity.
2. Personal
Insurable interest
cars.
The buyer of a car, for instance, will only be insured if
prevent performance
4. Any person upon whose life any estate or interest vested in
him depends
Parties
pay.
2. If the mortgagor performs an act that prejudices, the
mortgagee cannot collect.
Wenfeld:
38
Note: for the first, mere relationship is enough. For 2-4, there
o
o
categories.
When is there insurable interest over property?
o 1. Existing interest
o 2. Inchoate interest on an existing interest
consent
Contra: Assignment of a life insurance policy
o
o
o
interest
What is the value of insurable interest over property?
o The insurance cannot go beyond the value of the property
o Whereas in life, you cannot put value over life of a person
to completion.
3. Mortgagor and Mortgagee both have insurable interest
4. Lessor and lessee both have insurable interest
5. Mere possessor.
39
Then
can collect.
What if the children bought the house from the
X died and
clause)
3. Independent contract between mortgagor and
mortgagee
4. Acquired by the mortgagor under a contract duty to
action.
Change in interest in one or more listed things:
insurance.
40
mortgaged to him?
o To the extent of the debt secured
o The interest exists until the debt is extinguished
o N.B. the mortgagee may procure the policy and have the
Test:
to the contract
D had a loan of 3M from C. To secure it, D mortgaged his house
worth 5M in favor of C.
o Who has insurable interest over the house?
D 5M (value of house)
C 3M (extent of loan)
o Will insurance procured by D in his own name and for his
different
Concealment in life insurance:
HELD: concealment
There is a law prohibiting insurance companies from
Concealment
communicate
41
Representations
the insured made the agent his own agent for the purpose of filling up
The
inspectors.
2. Matters of public knowledge/insurer should have known
destruction
What if the insured dies from another reason apart from the fact
concealed?
o Insurer still not liable because it wouldnt have issued a policy.
Can there be waiver?
o Yes. Either express (in the terms of insurance) or implied (as
It is
imposed by law.
When is a representation presumed to refer to?
o A representation is presumed to refer to the date on which the
o
already communicated).
Is there need to disclose nature or amount of ones interest?
o No. EXCEPT if one is not the absolute owner of the insured
property.
42
there is no misrepresentation.
What if the insured has no personal knowledge of a fact?
believes to be true
Ex. There is a question in life insurance about medical history
Warranties
statement
Ex. There is no misrepresentation because he relied on what
is no misrepresentation.
Insured filled up the application form. The insurance company
said that they will only accept if the applicant is not more than
Express or implied:
o Express found in terms and conditions
o Implied imposed by law
If the other party would not have entered into the contract, or
no misrepresentation.
Test of materiality?
o SAME AS CONCEALMENT.
43
house in 10 days.
HELD: the insurer is liable.
Different interests
material.
If there is a breach of warranty, and loss occurs EVEN IF not related to
He
For
authorized third party with a license that must drive the vehicle.
Is the expiration of ones license a violation of the
authorized driver clause?
second insurance.
contract.
When there is breach of warranty, it is presumed to be
Or
44
On Sept
On December 31 he stored
Warranty
Representation
Collateral inducement
Need not be written
Must be established to be material
to
material
Fact must be strictly complied with
be
else
Requisites for incontestability clause:
o 1. Life insurance
o 2. Payable proceeds upon death
o 3. In force for 2 years since issuance or reinstatement
Yes,
it
cannot
be
lengthened
by
deemed a rescission
Sec 48(b) incontestability clause
but
by
stipulation.
o What if the policy lapsed but was reinstated?
If a life insurance policy has been in force for at least 2 years since first
effect or last reinstatement insurer is BARRED from questioning it or
alleging misrepresentation or concealment, or deceit/fraud
45
another person
6. If insured is riding in a plane and it is not a commercial flight
It must have lapsed while the insured was alive. If the insured
dies within two years, the heirs cannot wait for the 2 years to
The Policy
common interest
Rules on interpretation:
o If the provision is clear, there is no room to interpret
o Tantoco Terminal: had two mills. Old mill was insured. When
the new mill was finished it was insured. The policy however
Before you issue a new policy, the terms and conditions have
Insurance
original?
o Must be countersigned by the insured or owner
o N.B. No need for signature of insured for earlier riders and
otherwise.
Fortune: Security guard and driver of armored van had
possession of the money.
The very
additional clauses
When must a policy be issued upon issue of cover note?
o Within 60 days, the policy must be issued.
46
It is a
sum
N.B. One year period to file a case is not like period for appeal.
1. Non-payment of premium
commencing action?
o In general, a clause in an insurance policy that action upon the
period is valid
But if the period fixed is less than one year from the time cause
uninsurable
6. Determination by Commissioner that continuation
of policy will place the insurer in violation of the code
insured against
3. Discovery of fraud/material misrepresentation
4. Discovery of willful or reckless acts increasing
Notice of cancellation:
o 1. Must be in writing
o 2. State ground for cancellation
o 3. State that if the insured asks for the facts as basis, the
insurer will disclose
When can there be automatic renewal in a non-life policy?
o Insured can automatically renew the policy as long as he is
o
47
matter of right
Policy written for term longer than 1 year, it will be treated as written for
against
What is the effect of payment of premium to the liability of the
insurer?
o Notwithstanding any agreement to the contrary, no policy is
But this does not estop the insurer from recovering the
payments afterwards
2. Payment in installments
o
o
arrears
What are the rules on refund of premium?
o Insured entitled to a refund of the premium if no part of the
how much insurance it can buy until the end of the policy.
Can the insured apply for reinstatement at the end of the
policy?
Thus, here,
losses
What the exception to partial refund rule?
48
No return.
Ex. told someone to steal his car, sell parts, and claim
not.
Can there be return of the premium due to over insurance?
o Yes. The insured gets a ratable return of the premium.
o Ex. a house worth 10M is insured for 10M with X, 5M with Y,
o
o
broke into the store and stole the stocks in trade. Fire
o
Everyone congregated.
from Z.
Agreement not to transfer the policy after loss has occurred is void,
because at that time, the liability has accrued. It is a chose in action.
insurance
2. Loss from unlawful act not liable
liable.
Ex. Fire broke out in neighbors house. To prevent the
fire from spreading to the other house contained
It is not
divisible.
What if the contract is avoided due to fault of the insurer?
cases of beer. The SMC rep met the captain and told
the latter that the boat should be moved to a safer
49
But the insurer will be discharged from its liability to the insured
if the insured committed any act that would prevent the insurer
opportunity is gone
Usually policies have a provision that claims must be
Requisites:
o 1. Insured must be the same
liability
2. Insurer mistakenly paid for an excepted risk
3. Life insurance
4. Recovery of loss in excess of insurance coverage
Double insurance
insurance
5. Risk is the same
50
based
on
proportionate liability
Ex. A house worth 10M is insured for 10M with X, 5 M with Y,
5M with Z:
reinsurers will pay too. They will rise and fall with the fortunes of the
said proportions.
In car insurance policies, there is a usual clause that for overcovering a car worth P500K can only be liable for P250K each,
Reinsurance
original insurer.
Can the insured sue the reinsurer directly?
o No. There is no privity of contract between them.
What is the exception?
o The cut-through clause
Marine insurance
pay.
Most of the time, there is a clause that says that the original reinsurance
need not litigate with every reinsurer. If the original insurer paid, the
the house
If owner recovered 10M from X, X can ask for 2.5M
What is reinsurance?
o Insurer obtains another insurance to cover for loss for liability
51
If the ship is not sea worthy, or that the cause is due to the poor
not avoid the policy EXCEPT if these were also the cause of
the loss:
been chartered?
o Only the amount which the charterer did not agree to cover, in
o
case of loss.
Ex. the ship is worth 10M. The charterer agreed to pay 5M in
be insured.
What is the insurable interest of the charterer?
because the fact concealed was not the cause of the loss.
What is the different rule as to belief of a third person as to marine
insurance?
o Marine insurance belief of a third person as regards what is
happens?
material
Ex. surveyor saying that the ship is not seaworthy MUST BE
DISCLOSED it is material
What is the rule on misrepresentation as to expectation?
o If there is no fraud, misrepresentation as to expectation does
o
52
Ordinary insurance
Marine insurance
Concealment
Five
grounds apply
exceptional
cause of loss
Need not be disclosed;
Must
Misrepresentation as to
immaterial
Can rescind
material
If there is no fraud,
expectation
Implied warranties
N/A
cannot rescind
Four implied warranties
o
o
be
disclosed;
automatically apply
insurer is discharged.
What must the voyage route follow?
o Usual maritime usage
o If none, then the most natural, direct, and advantageous
seaworthiness?
warranted
When is a ship seaworthy?
o If it can perform the services and encounter the peril of the
o
Deviation
o
o
o
voyage contemplated.
Warranty of seaworthiness extends from the hull also that it
has control
deviated
o 4. Made in GF, to save human life or another ship
Once the vessel deviates, even if it returns to the original route, the
insurer is exonerated.
Loss
etc.) is fit
53
1. Total destruction
o Ex. the ship burned
o
o
o
making it irretrievable
3. Damage to thing rendering it valueless for
destination
o Ex. Ship was ordered seized
Is there need for abandonment for actual total
total loss
B. Constructive total loss
loss
5. Must be factual
loss?
seedlings
Ex. a race horse broke its legs, so it
abandonment
Acts done in good faith by the agents of the insured after
abandonment is for the risk/benefit of the insurer (ex. effort to
repair the ship is for the risk/benefit of the insurer. So the
is the effect?
o The marine policy on the cargo remains
insurer pays for it, and if the ship gets repaired, benefits.)
Insurer is liable for those acts of insured in good faith
o Ex. salvors fee, repairs in GF
Acceptance:
o If abandonment is proper but insurer refuses unjustly, it does
o
54
acceptance
Acceptance is conclusive and cannot be revoked [except if the
abandonment?
The insured can sell the vessel and earn scrap value.
freightage?
o Freightage earned before the loss to the insurer of the
1. Loss is partial
Fire insurance
expected profit.
Is a marine insurer liable for expenses attendant upon damage and
subsequent repairs?
o Yes, the insurance is liable pursuant to sue and labor
freightage
Freightage earned after the loss to the insurer of the ship
Measure of indemnity
60M in profits)
Not separately insured: Sugar being shipped is worth 100M
and has expected profit of 120M. 50M worth of sugar was
55
not supposed to
Friendly fire fire that burns in a place where it is supposed to
burn
of
depreciating,
the
o
o
the person.
It is the intention of the person inflicting the injury that controls.
Usual accident policy doesnt cover death or injury caused by
the insurer.
But
construction
So SMC is trying to
the policy.
If there is no such provision, the contracts are separate, so the
value
of
But the
SMC said that it was not, based on the old prices. What
happens?
The insured
Casualty insurance
56
pulled the trigger. There was a bullet. He died. Can the heirs
collect?
o HELD: Yes, because it was accidental.
o JJs viewpoint: No, because he was stupid.
Sometimes, there is a clause where the insurer will defend the case on
behalf of the insured in court. In a case, the insured sued the insurer
Life insurance
made liable) but because the insurer was negligent in defending the
case.
Suretyship
returned.
What is a continuing bond?
o One that will last until the end of the case. The company is
entitled to charge premiums every year.
not because of the liability clause (because the insured was not yet
Kinds:
o
misconduct
Fidelity guaranty insurance for consideration, one agrees to
paid.
But not entitled to return of taxes paid (ex. DST) and other
If he
What is suretyship?
o Agreement where surety guarantees the performance by
flying commercial
5. Industrial life
the policy has been in force for a period of two years from date
of issue or last reinstatement, unless shorter period is provided
57
criminally liable
Rebate of premiums is also prohibited.
Can agreements regarding kickbacks be enforced?
liability attaches?
o Its a void provision. If you have to wait until final judgment, it
the ff conditions:
1. Indemnity shall not exceed P15,000
fault.
The insurer cannot ask the insured to waive the rest of the
license
What if the car is unlawfully taken and driven by a person
who is not authorized?
58
clause
Ex. a repairman took the car out for a joyride
In general
A. It is a secret
Copyright
applicable
What are technology transfer agreements?
o Contracts involving transfer of systematic knowledge for the
manufacture of a product, application of process, rendering of
o
o
o
o
container of goods
Patent: technical solution of a problem in any field of human
activity which is new, involves an inventive step, and industrially
secret
C. It has been subject or reasonable steps to
keep it a secret
Differentiate between copyrights, trademarks, and patents:
o Copyright: literary and artistic works which are original
One creator
Joint creators, where individual parts
Copyright
prepared
parts
Commissioned work
Audio-visual work
over
the
parts
they
59
scenario,
composer,
director,
Anonymous
employment
Employees work, if not part of his
Employee
o
o
a work
2. News of the day or miscellaneous facts amounting to press
information
3. Official text of legislative, administrative, or legal nature, and
be used.
For DVDs?
The producer,
o
music
composer,
director
of
Madame Butterfly)
What about compilations?
duties
building
Are derivative works also covered by copyright?
o Yes, but you have to get the consent of the original creator.
60
their translations
4. Works of the government
No.
How long is the copyright?
o Lifetime of author + 50 years
o
o
the work.
Ex. The character Charlie Brown is copyrighted. So
an entire book)
2. Derivative works
3. Public distribution or exhibition
plagiarism is infringement.
Plagiarism is passing off the work of another as ones own. It
may consist of copying verbatim the work of another w/o
years
What if its work of applied art (artistic creation with
61
So
o
o
dances
4. Used for judicial proceedings or giving advice
o
o
But this
court
5. Fair use
For criticism.
work.
For
it
to
work,
the
substantial.
Libraries can make photocopies (ex. the book is
fragile already ex. Maximo Kalaws The Malolos
Congress or Apolinario Mabinis books). If you only
Yes.
If one is citing portions to use for an anthology, is
1. Purpose
62
Patents
5. Aesthetic creations
product,
o
o
patent non-prejudicial?
1. Disclosed by the inventor
2. Disclosed by the patent office and the
information was in an application filed by the
inventor or a third party who got the
information from the inventor but did not get
of
microorganisms
What cannot be patented?
o 1. Discoveries
Newton cannot patent the law on gravity
But he can patent inventions based on it
Ex. parachutes
o 2. Mathematical methods, scientific formulae, schemes, forms,
o
or industrial design
When is prior disclosure of the information in the
patent in the 12 months preceding application for
the world
o Ex. a plow
2. Prior filed or effective patent, utility model,
flash of genius
3. Industrially applicable
Something that spins perpetually. Has no industrial
use, so it cannot be patented.
63
the
from
inventor
2. Involves an inventive step
If it is useful, but it is not an invention and anyone with
directly/indirectly
protected.
What is an industrial design?
o Any composition, lines, colors, etc. which form a pattern for
industrial design.
Someone registered as industrial design the Y design
on jockey briefs.
How long is the term of protection for ID?
o Term of protection for industrial design is 5 years, renewable
world
Compare patents and industrial design:
o Limitations of the right of owners of industrial design are the
same as patents, but industrial design cannot be the subject of
Otherwise,
compulsory licensing
What is the term of a patent?
o 20 years from date of filing of application
What is infringement?
o Infringement is the making, using, or importing of the patent of
o
64
infringement?
o Yes, as long as its country gives Filipinos reciprocal right to do
If you
this.
Defenses against infringement?
o 1. Prescription
same thing.
N.B. Having the same effect, but not proving that it
achieves it through the same means does not prove
equivalence
What is contributory infringement?
o Aside from the infringer, anyone who induces the infringer or
o
o
infringer too.
Betamax case: the VCR was alleged as being used to pirate,
the
infringer
for
repeated
effective.
65
used
11. Restricting use of the technology even after expiration of
o
o
o
the patent
12. Require payment of patents after expiration of agreement
[Anti-adaptation]
13. Restricting R&D of the licensee which gear towards
o
o
omitted.
Prohibited provisions in licensing agreements:
o [Anti-competitive measures]
o 1. That the licensee must get goods, products, raw materials
o
o
o
o
o
o
o
(purchase option)
8. Obligates licensee to transfer for free to the licensor the
country only
provisions?
o If there is substantial benefit for the country:
Generate jobs
What if the agreement does not comply with the prohibited or
mandatory provisions?
o It is unenforceable
66
himself
the product
2. For patented processes: restrain, prohibit, and prevent
unauthorized
persons
from
using
the
process
able to use the product. So the old rule that you can
o
o
o
purposes
5. Used for educational/scientific purposes
Supreme Court
8. Invention is used in a ship, vessel, craft, or land vehicle of
another country entering Philippine territory temporarily or
or
accidentally
another.
The right of the prior user may only be transferred along with
the enterprise or business, and not separately.
67
When can the government use the invention even without prior
national economy
3. Judicial or administrative determination that the exploitation
o
o
reason
6. Where the demand for patented medicine is not being met,
meaning
What cannot be registered?
o [public policy]
o 1. Immoral
o 2. Public order or morality
o [same or misleading]
o 1. Identical with a registered mark
the patent, or three years from the date the patent, whichever
o
o
o
o
Trademarks
What is a trademark?
o Visible sign capable of distinguishing goods/services/enterprise
68
o
o
o
o
o
o
[generic symbols]
7. National symbol
8. Flag of Philippines or other foreign country
9. Uses geographical indicator known for that product
product
targeted
to
products)
similar?
o 1. Dominance test
likely result
Deception need not be actually proved
Ex. Both Paddocks and Dockers jeans had the words
Lorenz
it
related goods?
o The prior trademark will be protected.
o Examples of closely related goods (INVALID):
2. Holistic test
registered
Passage of time will not bar action to protect that international
trademark
What is the rule on secondary meanings?
o Trademarks which originally may not be registrable may be
registered if it already obtained a second meaning.
69
became
If you did not use it, you must file an affidavit of non-
Force majeure
generic,
cellophane,
Thermos bottle)
2. Abandonment failure to use for
goods
N.B. compare this with periods for actions under copyright and
Grounds:
o 1. Mark became generic (aspirin
oppositor
2. Petition to cancel the registration of mark
B. Any time
infringement.
Copying, counterfeiting, making colorable imitations of TMs
70
Yes.
What is the status of standing crops?
public
Chattel Mortgage
special law.
The parties considered the house as personal
property, and subjected it to CM.
treated as personal.
5. Mortgage must be registered
Does it bind
mortgaged
be chattel mortgaged.
Property which may be real property under
registered in both.
Register with appropriate specialized agency:
disposal
4. Must be personal property
71
third persons.
6. Affidavit of GF
third party.
Can the CM extend to improvements and future property?
o No.
o Contra: In REM, the mortgage extends to improvements
wins?
o
The
You can amend the CM over the first loan to cover the
sell it.
Is a private sale of the property to foreclose valid?
o Yes.
To foreclose, what is needed?
o 1. Publication in the newspaper is not needed,
o 2. Notice must be posted in two or more public places, where
the mortgagee resides or where the property is located at least
a new CM.
Because here, the parties have to swear that they constituted it
The creditor must respect the CM. He can only garnish on the
property?
o No. This is pactum commissorium which is invalid.
o Can the mortgagee take the property?
Not forcibly. He can file for replevin to get it, and then
ownership.
The sale is valid, but he can be liable under the RPC for selling
o
o
72
be sold?
It must be followed
What if the proceeds of the foreclosure exceed the amount owed?
o Return to the mortgagor.
o If there is deficiency, the E can run after mortgagor for it.
Exception?
Art 1484.
foreclose it extra-judicially.
If a loan is overdue, what will not preclude foreclosure of the REM?
o 1. Allegations that the mortgagee did not furnish the mortgagor
an updated statement of account
o 2. Negotiation for restructuring of the loan
What is the rule on interest rates?
o While the ceiling rates on interests have been lifted by the
Wednesday or Friday.
2. It must be posted in 3 public places where the property is
located
Is personal notice to the mortgagor needed? What if there
o
o
is failure to do so?
No need. No effect.
What if there was no posting but there was publishing?
It is sufficient.
What if the sale is postponed?
1. Sale not finished that day and will continue the next
day
2. Waiver (see below What if mortgagor talks to the
bank)
What if there are clerical errors in spelling the name of the
mortgagor?
mortgagee.
What if the provision says the bank can unilaterally
increase the interest?
73
Not
promising to pay the loan, and the bank makes him sign a waiver
of republication, is it valid?
o Yes.
o While commentators have said that third parties who want to
buy the property will be prejudiced since they did not know, this
property.
Can the foreclosure be done by a Notary Public and not a sheriff?
o Yes, although the courts now require the payment of filing fees
sum.
What happens to the excess or deficiency after foreclosure?
o Excess goes to mortgagor
o Mortgagee can sue for payment of deficiency
Is there a right to redemption?
o Yes.
How do you redeem?
o 1. Tender the correct redemption price, or
o 2. File a case to compel delivery of property for redemption
is not valid.
What can the buyer of the foreclosed property do?
o He can ask for a writ of possession. Granting this is ministerial
and non-litigious. This is ex parte and there is no need to
o
If the redemption
74
against?
on the property?
possession.
But the writ of possession cannot be enforced
against the lessee when:
N.B. for other aspects of CM Law and REM Law, see Civil Law and
Remedial Law notes.
owner-mortgagor?
75
economy
What is the basic obligation of the lender?
o The debtor must be informed how much it is costing him to
borrow money the charges he has to pay
Which creditors are covered?
o 1. Any person engaged in the business of extending credit,
o
o
o
charges (not less than 100 pesos, not more than 2,000 pesos)
3. When the debtor sues the creditor for payment of finance
prosecuted criminally
Manual of regulation for banks
o If a bank lends more than P500,000, it can charge a handling
installment basis;
3. Lease purchase contract with financing company
4. Hire, bailment, lease of property
5. Option, demand, lien, pledge, or claim against property or
money
6. Purchase, acquisition of, or any credit upon the security of
Truth in Lending Act, the bank cannot charge the handling fee
The statement given did not mention that the bank can increase
the penalty in case of default. Can the bank charge this increase in
a penalty?
o No.
interest
o Total amount to be financed + finance charges
information. But this law is not limited to financial institutions. This law
activity
2. He who knows that the money came from an illegal source,
but performs acts to facilitate the transaction
fee.
If that was not disclosed in the statement to comply with the
76
law
Who are covered?
o
o
o
1. Banks
2. Quasi-banks
3. Financing institutions (ex. financing companies, pawnshops,
investment houses, trust companies, institutions supervised by
Central
securities dealers,
day
Automatically, these have to be reported although
legitimate
2. Suspicious transactions
justification.
Ex. the transaction is structured to avoid reporting (for
instance, instead of remitting an amount more than
Insurance Commissioner
How are decisions reached?
o Decisions must be unanimous (all 3 of them)
Powers of the AMLC?
o 1. Implement measures to prevent AML
o 2. Coordinate with foreign countries for enforcement of AML
o 3. Investigate transactions
o 4. Recommend for prosecution
o 5. Apply for order, ex parte, for freezing accounts (with the CA)
o 6. Could institute forfeiture proceedings
o 7. Enforce sanctions for violations
What are duties of covered institutions?
o Establish true identities of their clients
o Are anonymous accounts allowed?
77
bank deposits
The officers who make the reports in GF are given immunity
from prosecution.
Petition for ex-parte order to freeze an account:
o Filed with the CA
o The freeze order is valid for 20 days.
But the domestic bank may ask the PDIC to insure the
probable cause.
o When is court order not required to inquire?
PDIC.
o 3. Deposits from unsafe/unsound bank practices
o 4. Proceeds from money laundering
o 5. Contents of safety deposit box
What is the maximum coverage?
o P500,000
What is the period to claim?
o Within 2 years from actual takeover by the receiver
Somebody has a current account, saving accounts, time deposits,
and if you add it all up, the value exceeds P500000. If the bank
the order.
capacity rule)
X has a separate account and a joint account (X and/or Y).
What is the rule?
78
account?
o The P500K will be divided among them unless there is a
o
different agreement.
What if the account is held jointly by a juridical entity and
just officers.
If you have a person with several joint accounts, then what is the
total he can get?
o Add all joint accounts together, and subject to the ceiling
o Ex. three separate joint accounts, with A, B, and with C, then
relative.
What is the period to pay?
o It must be within 120 days from closure of the bank. If beyond
Corporation Law
Corporation, defined
depositor
What is the right of PDIC after payment?
o There is subrogation, so in liquidation of the bank, the PDIC
of the bank.
Ex. He has 1M so he transfers P500K to the name of his
the bank.
Can a person split his deposits or create fictitious accounts?
o No. It is illegal to create fictitious deposit accounts or split
deposits to circumvent the maximum liability in case of closure
reputation.
It has the right of succession. What is this?
o Stockholders may come and go but its personality remains the
same
Cannot perform an act unless authorized by law.
o As opposed to natural persons who can do anything as long as
bearer?
79
Nationality of corporations
Primary test:
o Place of incorporation test is the principal doctrine: country
against
corporation,
or
change it?
o XYZ and ABC both own 50% of the corporation. ABC is 50%
XYZ is 60% Filipino and 40%
government
creates a device like the corporate vehicle, and it is abused, the law will
private
The SHs
80
2. In the internal dealings, if the SHs show that they are not
it was sold, the price of silver plummeted. The client sued both
M-L Philippines and M-L NY. MLP said the contract was with
controlling SH.
Here, no fraudulent intent but there is systemic
such
Ex. there was a controlling SH where she gave four
The
the act
Who is this proved?
The
the case.
If the officers were sued in their official capacity, there is no
Capital Structure
81
incorporator.
What is the maximum corporate life?
o 50 years, extendible for additional periods of 50 years
o You can only extend in the last five years of its corporate
existence
Minimum required paid up capital?
o Generally, none
public
utilities,
insurance
companies, etc.
For all, at least 25% of the authorized shares must be
subscribed
At least 25% of those must be paid.
A. Preferred
B. Redeemable
o 2. Banks, trust companies, insurance companies, etc. are not
liquidation
Can preferred shares be given preference over
creditors?
No,
liquidation
What are preferred shares as to dividends?
because
Doctrine.
Distinguish:
82
this
violates
Trust
Fund
o
o
AOI.
What happens in redemption?
rests
entirely
upon
No.
stock.
corporation
redeem
No need for unrestricted retained earnings
the
83
shares.
o
property
[Changes in the corporation]
1. Merger/consolidation
(contract theory)
When is revocation disallowed already?
formed?
retained earnings/surplus
Who is liable?
exist yet
Contracts entered into with defective corporations (de facto or
by estoppel): at least one party is unaware that the corporation
3. Corporate dissolution
What are watered stocks?
o 1. Issued without consideration
o 2. Discounted shares
o 3. Issued as stock dividend when there are no sufficient
o
property dividends.
Can cash dividends be declared from the shares?
1. AOI amendment
Who is a promoter?
84
formed
Who are personally liable for the promoters contracts?
incorporation expenses.
Subscription:
o Subscription, not payment, grants rights to stockholders, even
issued already.
Only need to register in the Stock and Transfer Book
Ignore the
condition.
What is valid consideration for issuance of shares?
o 1. Actual cash
o
o
o
for
o
o
o
Appraised by SEC
3. Labor actually performed
4. Previously incurred indebtedness
5. Amounts transferred from unrestricted retained earnings to
stated capital
6. Outstanding shares exchanged for stocks in event of
consideration void.
The subscriber has outstanding payable consideration in cash,
85
and number
4. Term for which it will exist
incorporators
What is required for amendment?
o Must be authorized by 2/3 of the SHs and majority of the
directors
When does it take effect?
reclassification/conversion
What if the consideration is unlawful?
The SEC now requires that you put even the street
o
o
o
CHED, etc.)
What is the requirement as to the name?
o Required to submit undertaking that you will change the
corporation?
o No. There is no law allowing that.
What is a corporation by estoppel?
o So defective in form that it is neither de jure or de facto, but it is
existence.
When it applies:
o Someone must deal with the association like a corporation and
claims that the association is not a corporation. So it covers
include it.
When does a de facto corporation exist?
o 1. Valid law under which it was organized
o 2. Attempt in good faith to form a corporation
capital?
Gen.
What is the nature of its acts?
o Valid, like that of a de jure corporation.
o Even the acts of the officers are valid, although they also have
behind it.
Can its existence be attacked collaterally?
o No. Just directly, through quo warranto, and only by the Sol-
claim to be a corporation.
o 3. User of corporate powers
What is the scope of the de facto corporation doctrine?
o Situations where the defective enterprise contracts with an
86
part.
What are by-laws?
o Intramural document, to govern intra-corporate relationship.
When are by-laws valid?
o 1. Do not contravene law
o 2. Reasonable and non-discriminatory
o 3. Do not contradict Articles of Incorporation
If there is conflict, AOIs win out
Is it possible that an express by-law provision be violated and still
dissolve
the
stock
2. 2/3 of outstanding capital stock may delegate to the
number of shares)
5. When annual election of officers is done, and manner of
o
o
appointment
6. Manner of issuance of stock certificates
Citibank: By-laws allowed country managers to sue and
automatically
to
ground
by estoppel?
o If the incorporators knew there was no corporation (fraud)
o
Not
incorporation?
87
o
o
No
D. Power to deny preemptive rights:
o Where is there a right of preemption by SHs?
of corporate term)
B. Power to increase or decrease capital stock:
o Majority of BOD + 2/3 of OCS
o Need SEC approval:
paid-up
For decrease it must not prejudice corporate
creditors
Until approval, the funds are just held by the corporation in trust
No
C. Power to create, incur, or increase bonded indebtedness:
o Majority of BOD + 2/3 of OCS
o What is a bonded indebtedness?
need SH approval.
o Is there a right of appraisal?
Yes
F. Power to purchase own shares:
o What is required?
88
earnings
Exception?
dividends
2. To collect indebtedness out of an unpaid
subscription
3. To pay dissenting or withdrawing stockholders
enumeration)
o What happens to the shares?
o
o
purpose
Mau Sugar Central buying a company manufacturing
above
implies
SH
premium surplus?
requires
illegally obtained
In what forms?
war,
Nielsen
wanted
to
continue
the
unexpired
some
89
transfer book, it only binds the parties but not the corporation.
deducted
Stock corporations are prohibited from retaining surplus profits
Exceptions?
special expertise.
Requirement?
Approval by BOD
approval
5 years for any one term. You can keep renewing it.
Does the principle that a principal can terminate an agent
Power
90
Requirements
Non-
Appraisa
voting
l right?
stocks
Enter
vote?
Increase or decrease
Yes
Yes
corporate term
Increase or decrease
OCS
Majority of BOD + 2/3 of
Yes
Yes
capital stock
Create,
OCS
Majority of BOD + 2/3 of
increase
incur,
bonded
Yes
into
management
of
contracts
company + Majority of
rights
2.
Comply
No
with
No
Substantially all of
Yes
Yes
property
Purchase
OCS
1. Eliminate fractions
No
No
2.Pay
subscription
cost
of
business
in
another
5. Other similar
Majority of BOD + 2/3 of
Yes
OCS
Yes
capital
No
another
line
Declare dividends
(if
going into
business
shared
3. Pay appraising SH
Decrease
Commonly
majority of BOD
indebtedness
funds
managed
public
corporate
No
No
3. For property
Invest
of
Yes
managing
company
offering law
4.
of
1. Provided in AOI
shares
OCS
OCS
OCS
indebtedness
Denying pre-emptive
own
of
business)
No
without authority
stock
(subject to exceptions)
91
business.
First type of ultra vires: void and does not bind the
1. Performance
2. Ratification
3. Estoppel
Second type: no authority so unenforceable contract
sue
SHs
directly
for
unpaid
unpaid subscription.
2. Payment of dividends without URE.
3. Properties transferred in fraud of creditors.
4. Properties disposed or undue preference given to
may
can be invoked
Can a corporation guarantee the debt of another?
o No, because it might prejudice the claims of its creditors and it
o
credits).
Creditors
subscription.
Examples of when the TFD is violated:
creditors.
Implications:
of the subsidiary
2. Will result in increased business
3. Will enhance the chances of collecting
o
o
from
is constituted an agent
Pledgor or mortgagor still votes for his shares.
the
party
whose
obligation
is
guaranteed
92
shares together
What are required for a valid proxy agreement?
o 1. In writing
o 2. Signed by the SH
o 3. Filed with corporate secretary before the meeting
o How long is a proxy valid?
an interest
BUT he must show up to vote. If he doesnt vote, it
guardians?
o Can vote the shares of stocks they administer without need for
proxy
What if there are two or more owners of shares?
o They must go together, but if and/or, either can vote
o If both attend and cannot agree on how to vote, the vote is not
and SEC
What is the maximum duration?
5 years
What are the powers of the trustee?
counted
There are different devices how to get votes. How?
o 1. Proxy solicitation
o 2. Voting trusts
interest
Can the voting trust agreement be coterminous with a
loan?
Yes. It will remain until the loan has been paid; for
instance, 10 years.
93
o
o
o
o
Mandamus
Criminal case
Damages
Grounds to deny inspection?
3. No good faith
4. No valid purpose
Unless excused
But
owned subsidiaries?
excessive compensation.
as a group
Nature of right to inspection?
o 1. SHs: to protect themselves
94
of the subsidiary
Appraisal rights:
o Any dissenting SH can ask to be bought out.
o When is there appraisal right?
6. Merger/consolidation
o
o
o
Must have voted against the action, not for the action.
When can the SH exercise right?
of the shares.
What if they cannot decide on the value of the
o
o
o
o
was taken?
When martial law was declared, the members of the Board fled
to the Middle East. A corrupt member of the board sold the
payment
When will his right to be paid cease?
corporation, or
2. Act he is protesting against is reversed or
disapproved by SEC, or
3. SEC says he is not entitled to appraisal rights
What is the effect of this?
Exception?
required by by-laws
3. Liability to creditors of corporation for unpaid subscription
4. Liability for watered stock
board authorization.
Requirements to be a director?
o 1.Must own at least 1 share of stock in his name in the STB
He is still qualified.
95
o
o
not delinquent
2. Cumulative voting
Cannot be taken up
Who are the directors that cannot be removed without cause?
o 1. Director representing minority of SHs
o 2. Independent directors (as required by law either 2
independent directors or 20% of the board, whichever is less)
The law mentions conviction as a DQ for becoming a member of
the board. Can the By laws add other qualifications?
o Yes.
o For instance, providing that SHs holding shares in rival
No.
96
of interest
o
o
o
justify retrenchment
1c. Gross negligence
1d. Conflict of interest
2. Issued watered stock or being aware of this, did not object to
wins out?
o The ones mentioned in the General Information Sheet win out
Courts will not second guess the wisdom of the officers even if
negligence
97
Officer
quorum
2. His vote was not needed to approve the contract
N.B. these are the same first two requirements as in
corporation
Which can be waived or ratified?
self-dealing directors
What is an executive committee?
o By laws can provide for it, composed of at least 3 members of
SHs
Business opportunity can be ratified by 2/3 of the
the BOD.
quorum
2. His vote was not be needed to approve the contract
3. The contract was fair and reasonable
3. Amending/repealing by-laws
BOD
What is the effect of the first two defects?
disclosure.
What about contracts between corporations with interlocking
directors?
o They are not per se prohibited.
o But if a director has substantial interest in one and minimal in
98
act.
What is the general scope of powers of the officers of a
corporation?
o Can operate without authorization on the usual course of
o
substitution of debtor.
resolution
Capital affairs
deliver. All transfer of shares are valid just between the parties
balance.
What is the nature of shares of stock?
o Quasi-negotiable. Just like N.I., endorse at the back and
secretary
2. Delivery of the COS
3. Pay par value of the shares (or entire value if no par value)
4. Original certificate surrendered, if the shares are being
transferred
What are the remedies of the SH when the corporation refuses to
issue a COS?
o 1. Specific performance
o 2. Damages if specific performance not granted
o 3. Mandamus to compel issuance of COS
o 4. Rescind the subscription contract
What is the nature of the duty to issue a COS?
o It is ministerial , so even if there is a case filed, the buyer must
be given a certificate
What are the unpaid claims contemplated by the law?
o Payment for subscription, not unpaid claims for monthly dues
When is the COS issued?
o No certificate will be issued until full amount paid
What is the nature of a subscription contract?
o It is indivisible.
99
convenience.
Who may post in the STB?
o The president cannot post the entries, it must be the Secretary.
o If the secretary refuses, compel performance, but one cannot
record the entries himself.
What are the allowable restrictions in sale of shares?
o Procedural: Restriction must appear in the AOI, BL, and COS
terms
What if the seller of the COS is not the true owner?
o The buyer cannot get valid title.
o The first buyer, however, was given a fake COS. Effect?
down stocks and those who know about it and didnt give their
objections:
o Solidarily liable with the non-paying SH
If someone only paid part of the stocks, when must the rest be
1. By provision
2. Upon call by the directors
What is the nature of the call?
persons.
When is there interest payable?
the shares?
o Sue the SH in a collection case.
What is the remedy for a lost COS?
o 1. Owner submits affidavit of loss
o 2. Corporation verifies the affidavit and publishes notice in
o
o
100
etc.)
How is the bidding for the shares done?
prerequisites?
on unpaid subscriptions.
B. If the corporation is insolvent, the SHs can
paid?
o
o
o
to the pledgee/mortgagee
was attached
Priority rules:
o A. Two judgment creditors
consecutive weeks
registry
C. Mortgagee/pledgee v. buyer/assignee
recover taxes)
Involuntary dissolution:
o 1. Based on grounds provided in the Corp. Code (see above)
o 2. Violations of PD 902-A (SEC reorganization act see above
for some acts)
o 3. Quo Warranto
What are the specific grounds?
o 1. Does not commence business within 2 years from its
o
o
o
o
registration
2. Suspended transactions for 5 years
3. Failure to adopt and file BLs within required time
4. Offended provision of law for creation (or renewal)
5. Commission or omission of act deemed as surrender of
corporate rights
101
o
o
o
o
corporation;
over
properties
of
option is chosen
o 3. Receiver appointed
What is the effect of dissolution on existing rights and obligations?
o It does not impair its rights and obligations
o Ex. Even if a corporation has been dissolved, it must still be
paid
How long must winding up be?
o Three years from the time SEC approved dissolution
What can the corporation do and not do during this period?
o It can only wind up its affairs disposing its properties. It cannot
acts of that of a going concern.
Will corporate dissolution abate any ongoing case against or filed
title
2. Receivership (option 3)
legal
dissolution?
Yes.
N.B. You do not dissolve a corporation for every single minor infraction.
acquire
SH
franchise
o 10. Failure to file reports with SEC within prescribed period
What if the corporation claims that the economy was depressed
business?
o Even so, it has to file an ITR and the general information sheet,
will
and there was no demand for its goods; thus, there was no
Non-stock/non-profit
102
dissolution
o 3. Eleemosynary purpose
For what purposes may a NSNP corporation be organized?
o 1. Charitable
o 2. Religious order, to manage its properties
o 3. Educational
o 4. Others: professional associations, cultural, fraternal, literary,
eleemosynary
purposes
to
plan of distribution
Can a NSNP corporation be converted to a stock corporation
for
Close corporations
usage
of
members.
condition of dissolution
3. Transfer assets received by the corporation subject to
limitations
commerce
What is the rule on the right to vote?
o By default, each member may vote
o Unless limited, broadened, or denied in the AOI or BLs
o For stock corporations, even non-voting shares vote for
He has to be
corporation itself
103
o
o
o
o
title
Close
Corporations
or
reduce
quorum/voting
of directors
Which corporations are not allowed to be close corporations?
o Those vested with public interest.
o Specifically:
3. Public utilities
4. Schools
How can the restrictions on transfers bind third parties?
o 1. Must appear in AOI, and
o 2. Must also appear in BLs, and
o 3. Must also appear at the back of the COS
Whats the effect of pre-incorporation agreements?
o They remain binding even after incorporation
o Ex. a pre-agreement that the president comes from Family A,
o
o
Educational corporations
Yes.
Religious corporations
on
directors
104
corporation
corporation sole
A. Inventory
of the Philippines
2. AND whose laws allow Philippine corporations to do
doing business?
o It cannot sue.
o If its not doing business, and has no license: can sue.
What is required to do business here:
Foreign corporations
business there
What is the effect of a foreign corporation having no license and
summons
X is a foreign corporation with no license. It entered into a contract
license, and then it sued.
standing
What else must it do?
105
purpose
3. Contract consummated in the Philippines
o
o
o
o
here
Domiciled here
o
o
o
here
What doing business under FIA does not include:
o 1. Mere investment of a foreign entity in a local entity or
o
corporations BOD
own name
What are the grounds to revoke a license?
o 1. Failure to file annual report or pay fees
o 2. Failure to appoint or maintain a resident agent
o 3. Failure to submit to SEC notice of change of resident agent
or address
106
cease to exist
2. Acquire rights, portfolio of business, and assume liabilities of
o
o
dereliction of duty
5. When the money/bank account is the subject matter of the
prerogative.
XYZ corp issued a PN to D. XYZ was then absorbed by ABC. D
litigation
Even if it is no longer in the possession of the
Proceedings)
Contra: X sold treasury bills to Y for a sum of money.
performance.
account of X.
persons.
What deposits are covered?
o 1. ALL DEPOSITS OF WHATEVER NATURE, with banks or
o
defendant
Ex. in a case, the money was transferred from
matter of litigation.
6. Under the AMLA, the AMLC can inquire into deposits where
there is probable case of money laundering (some requiring
court order, some not see discussion of AMLA), or if there
are covered or suspicious transactions
banking institutions
2. Investments in bonds issued by the Philippine Government,
its subdivisions and instrumentalities
107
commission of terrorism/conspiracy
8. Under the NIRC, the CIR can examine bank deposits if:
years
Gangcaico: The OMB Law provides that the OMB can inquire into bank
deposits during investigation. This was the old doctrine. But in this
1. AMLA exceptions
2. HSA exceptions
3. NIRC exceptions
Who can inquire?
1. PDIC
2. AMLC
garnished?
o No, there is none. Bank accounts can still be garnished. The
Types, definition
108
o
o
deposits
Receives money from the public and lends it out to them
What is required?
depositors
How are banks classified?
o 1. Universal banks
o 2. Commercial banks
o 3. Thrift banks (RA 7906 primary)
services to cooperatives
What are quasi-banks?
o Entities engaged in borrowing through deposit substitutes for
the purpose of relending or purchasing receivables/other
powers?
o [Instruments]
o 1. Accepting and issuing LOC
o 2. Discounting and negotiating PNs, drafts, BOEs, and
o
o
o
o
o
o
o
obligations
o (Ex. money market placements)
What are trust entities?
o Trust entities are those authorized by the MB to act as trustee
or administrator of any trust, or hold property in trust or on
evidences of debt
3. Accepting and creating demand deposits (checks and drafts)
[Deposit, credit]
4. Receiving other types of deposits and deposit substitutes
5. Extending credit
[Foreign exchange, securities]
6. Buying and selling foreign exchange, gold, and silver bullion
7. Acquiring marketable bonds and debt securities
controlling interest
Nobody can engage in banking or quasi-banking without
Monetary Board authorization.
109
Shares, etc
got them.
What is the limit on ownership of shares?
o Unlike the former law, the GBL does not impose a limit on the
related interest.
Rules on family groups and related interests
owned
or
immediately below)
investments of universal
financial
allied
Type of shareholder
Limitation on shares
foreign corporations
Filipino individuals and domestic
bank
40% individual equity
non-bank corporations
Foreign banks
Universal bank
in
banks
Equity
enterprises:
o Universal bank can own up to 100% equity of a thrift bank,
place of incorporation
Filipino individuals and domestic non-bank corporations can
only own up to 40% of the voting stock of a local bank.
Commercial bank
equity
rule?
What are the three modes of entry for foreign banks in the
Philippines?
o 1. Acquiring up to 60% of an existing domestic bank
110
o
o
o
o
Need MB approval
What is the extent of their powers?
quasi-banking.
Can automatically accept opening of current accounts
MB approval.
the boards)
How can meetings be conducted?
o Can conduct meetings by teleconference or video conference.
Rule on banks and their branches:
o Universal and commercial banks may open branches in the
o
111
set-off.
What is the degree of diligence required to be exercised by banks?
o Extraordinary diligence in the handling of deposits
o What about deposit substitutes (ex. money market
Powers of banks
The debtor-
placements)?
property mortgaged
2. Check both duplicate original title of the property
accommodation
3. The loan or accommodation is from:
a) his bank,
an ocular inspection
Single Borrowers Limit (SBL) the law limits this to 20% of net worth
partnership/association
What is not included?
bank
4. The loan or financial accommodation is in excess of
5% of capital and surplus of the lending bank or in the
deposits
Philippines
3. Loans under LOC to extent covered by the margin
book
the government
2. Loans covered
by
assignment
of
value
of
their
paid-in
capital
Related Interests)
o What are requisites to be covered under the DOSRI rule?
related interest
bank to officers
2. Loans by cooperative banks to
members
112
secured by the REM, and the 2nd loan became due during
accommodations
extended
bank:
o 1. Cannot exceed 50% of capital
o 2. If it acquires real property it must be disposed within 5 years
Is it valid to stipulate that the bank will not be liable for losses of
to
enterprises.
Current Manual for Regulation of Banks
similarly void.
Can a bank engage in insurance?
o No.
o But the bank can sell insurance policies if the insurance
company is a subsidiary or affiliate of the bank.
Prohibitions
o
o
o
immediate payment
Foreclosure:
o Check special laws on banks foreclosure [already know this]
the obligation.
Stipulation that a bank is not liable for delay in wire-transfer is
of the bank
2. Disclosing bank deposits to unauthorized persons without
prior court authorization
3. Overvaluing securities
4. Accept gifts or fees to approve a loan
5. Outsourcing inherent bank functions
113
in general
C. undue injury or unwarranted benefits through
with the JV. The long term papers plunged in value, so the customer
lost money. The customer sued the bank. HELD: The customer bears
the risks because she gave the instructions to the bank. She cannot
blame the bank for her bad investment decision.
there a violation?
o Yes, this was an act that caused unwarranted benefit to parties
due to partiality, bad faith, etc.
Head office guarantees prompt payment by its Philippine branches.
Banco Filipino: SC appointed judge Cosico to receive evidence and he
made a finding that Banco Filipino (BF) must be closed. The sc issued
closure violated due process because the bank was closed before the
investigation was finished. The law was then changed saying that a
There were talks that Ayala will start a joint venture with
commercial papers of Camella homes. But Ayala did not push through
autonomy.
Creation of the Bangko Sentral ng Pilipinas (BSP):
o It is the central monetary authority mentioned above
What is the responsibility and primary objective of the BSP?
o 1. Provide policy directions in areas of money, banking, and
114
credit.
2. Supervise operations of banks
3. Exercise regulatory powers over finance companies and
o
o
year terms:
within 72 hours
What steps can the MB take when the bank is under distress?
o 1. Place it under conservatorship
viability
5. Can overrule the decisions of the bank
part)
2. Receivership
No.
necessary
2. Continuance of business will involve
probable loss to depositors or creditors
decision
can survive
When is conservatorship terminated?
No.
This will impair
to extraordinary demands
Ex. Equitable bank run
after
impeachment trial
2. Insufficient realizable assets to meet
liabilities
3. Cannot continue without probable loss to
depositors or creditors
4. Willfully violated cease and desist order
that has become final, or dissipation of
assets of the bank
o In this case, forbidding from doing
business and appointment of PDIC
freedom of contracts
How long can conservatorship last?
115
as receiver is summary
Who is the statutory receiver?
creditors
2. General powers of receiver in ROC
o Cannot pay or dissipate any of the
assets
UNLESS
it
is
closure.
General Bank: It was closed and nobody was willing
to invest fresh capital.
rehabilitated it.
for
acts of administration.
What must the receiver decide within 90 days
credits
Effect of receivership or liquidation?
1. Whether
the
institution
may
be
administrative expenditures
3. May deposit or place funds of the
the receiver.
deemed
in
the receiver
2. No preference even if the claimant-
of resumption
2. Otherwise, proceed to liquidation
attachment
3. Liquidation
116
proceedings.
3. Appointment of receiver does not dissolve
corporation.
all
actions
pass
through
the
receiver/liquidator.
Can the BSP forbid the bank to do business?
to 100 pesos.
Denominations of 1, 5, and 10 are legal tender up to 1000
operating.
But interests on loans extended by the BSP
pesos.
N.B. The old rates were 25 and 50 pesos, but they have been
becomes final
Only the CB can issue currency and all notes issued by the CB are
legal currency:
o Coins, denominations of 25c, 10c, and 5c are legal tender up
The
Yes.
What is its powers regarding money function?
of BSP notes
Investigate, make arrests, conduct search and seizure
in accordance with law to maintain integrity of
currency
What is the responsibility and primary objective of the BSP?
o Maintain price stability conducive to a balanced
sustainable growth of the economy.
117
and
Government)
7. Reserve requirements can increase this (to decrease the
amount available for loans by the banks) vis--vis deposit
liabilities
CB.
3. Require exchange obtained by anyone to be sold to the
bank.
Code?
o 1. Protect public investors from fraudulent schemes
o 2. Encourage public investments by regulating sale and
The MB can:
o 1. Determine exchange policy,
o 2. Require banks to sell excess foreign exchange,
o 3. Buy and sell credit instruments from banks (Discount
policy)
disposition of securities
3. Establish a socially conscious free market that selfregulates, encourages widest participation of ownership in
Operations)
118
o
o
o
o
o
o
o
o
o
o
public
4. Punish for contempt according to ROC
5. Suspend or revoke the franchises or certificates of
Particularly fraudulent
employed
by
directors
devices
and
detrimental
interest/other firms
election,
appointment
or
investment
2. In a common enterprise
venture,
and
evidenced
by
public
of
in
directors or trustees
4. Petitions for suspension of payment corporate rehabilitation
schemes
to
Controversies
Registration of securities
registration
o 6. Exercise necessary or incidental powers
Which cases have been transferred to RTC jurisdiction from the
SEC?
o
e.g.
corporations,
119
date
5.
certificates
of
or
non-proprietary
membership
SEC right?
the checks mature. The SEC found out and issued a cease
and desist order for selling unregistered securities. Is the
the MB.
Rules on registration?
o 1. No securities can be sold or offered without registration
o
investment.
o
o
contract
Pyramiding scheme is an investment contract
participation rights
120
in
bankruptcy
proceedings,
lots,
condominiums,
o
o
o
o
(deemed isolated)
[B. with existing underlying relationships]
1. Stock dividends (to existing SHs)
2. Sale of shares to existing SHs
3. Issue and delivery of security in exchange for any other
for
o
o
o
o
o
o
o
o
o
o
such
4. Issuing officer/SH convicted of moral turpitude or fraud
[misinformation or lack thereof]
5. False or misleading annotations as to material facts
6. Failed to comply with conditions for registration
7. Registration is inaccurate or incomplete
of
Protection of investors
This is exempt.
[D. sophisticated transactions]
1. Judicial sale or any extra-judicial sale/execution sale by
securities?
o 1. If corporation is insolvent
o [violations]
o 2. Violation of SRC
o 3. Engaged in fraudulent transactions or about to engage in
Grounds
these facts are properly disclosed, the SEC will not deny
registration.
What is a tender offer?
o Publicly announced intention by a person or group of persons
to acquire equity securities of a public company (a type of
takeover bid).
Bank
121
period of 12 months
NOTE: in the codal this was 15% and 30% but the SEC rules
will be sold
What are not covered by the tender offer rule?
o [New stocks]
o 1. Purchase from unissued capital
o 2. Purchase of shares from increase in ACS
o [In relation to proceedings]
o 1. Purchases in connection with privatization undertaken by the
o
government
2. Purchases in connection with corporate rehabilitation under
o
o
o
o
court supervision
3. Merger or consolidation
[Public sales]
1. Purchases through open market at prevailing market price
2. Purchase in connection with foreclosure proceedings
What
if
the
prescribe
securities offered
exceeded
what
the
acquiring control
open, and
2. Not yet been accepted by the offeror, and
3. After 60 days from the date of the original
disregarding fractions
This rule also covers: securities deposited within 10
122
of the shares must identify who the beneficial owner is, within
1. SEC,
to the securities-issuer
What transactions are exempted from forfeiture of profits?
Matched orders
o
o
o
o
securities that:
operations
2. Make false/misleading statement with respect to material
facts, which he knew or had ground to believe was
123
1. Issuer
2. Officer of issuer
material information
4. Government employee, director, etc. (of SEC) with
compel payment
N.B. It is unilaterally void only as for the violator. So
the buyer can void it because the seller was
fraudulent, but the seller cannot decide to invoke that
persons
it is void.
2. Void as regards a non-party to the contract who was aware
of the violation
Transportation Law
security
Civil liabilities:
o Any person acquiring a security may sue if the registration or
o
who
signed
the
Time sharing:
o Can offer staying in cottages, clubs, etc. to non-members
because sometimes they are empty. These are securities that
Private carrier
registration statement
2. [See enumeration in the Code] prospectus,
fraudulent transactions, insider trading, etc.
Common carrier
reasonable compensation
Subject to regulation; as a public
service
Extraordinary diligence
Cannot stipulate exemption from
regulations
Diligence of GFF
May validly stipulate such
must be registered.
What is the effect of contracts made in violation of the SRC?
PP)
124
vehicle.
Is a travel agency a common carrier?
o
o
o
to liability of passengers.
What about diligence in selection and supervision of
employees?
Held?
transportation contract.
What about defects in the parts, even if brand new?
defense?
invoked?
under-declared.
5. Order of competent public authority
6. Exercise of extraordinary diligence
125
presumed?
extraordinary diligence
When does responsibility of the carrier begin?
From the time the goods were placed in its possession until the
the goods
Given reasonable opportunity to remove
LRT.
After alighting a bus, but waiting to pick up luggage, the same
destination.
The contract of carriage does not automatically end
126
depositor
Maritime law does not apply to govern the arrastre operators
responsibility
When is a stipulation limiting carrier liability valid?
o It must be reasonable to be valid.
o What are unreasonable?
1. No liability at all
employees
What is valid:
liability?
o It becomes valid
o But not for willful acts and gross negligence
Contributory negligence of passenger will not exculpate carrier but
minimize liability
o Ex. Passenger left his elbow hanging out the bus window, got
countries?
o The law of the country wherein the goods will be shipped
o
governs.
Ex. If there are two carriers (A and B) with a transshipment
USA.
What specific laws will govern under Philippine law?
o Primary: New Civil Code provision on common carriers
o Secondary: Code of Commerce and other special laws: Public
o
o
carriers liability.
A bus was cruising along the highway. One passenger ran
policy.
What are the rules governing baggage of passengers?
o If it is checked in, liable as common carrier
o If it is hand carried, it is considered necessary deposit only
127
claim
If the driver was negligent, you cannot impose
Warsaw Convention
bad faith
2. Passenger died
Medical expenses
Funeral expenses
Where there is no proof of funeral expenses,
defense.
What if the passenger was caused by co-passenger or stranger?
o If the act of the stranger could have been prevented or stopped
beyond
scope
of
the
employees
indemnity
What bout injuries caused by acts or omissions of employees of
orders,
authority
(Respondeat superior)
128
o
o
contract of carriage?
o Yes, because an airway bill is a document that would establish
of carriage
When must claim notice be given to the carrier?
o Baggage loss: 3 days from receipt of baggage
o Goods loss: 7 days from receipt of goods
o Delay in delivery of baggage or goods: 14 days from delivery
o What if the consignee does not give such claim notice to
the carrier?
airway bill.
The carrier will be liable to shipper for misdelivery.
Also liable to real person with lawful right over the goods who
happens?
o The shipper resumes right over the goods and can exercise
4. Point of destination
In a roundtrip flight (ex. SF ML SF), can you sue in
ML?
(airway bill)?
o 1. Goods not delivered before expiry of 7 days from the time
129
occurred
o
o
130
Maritime law
be left behind.
o N.B. But our SC does not accept this reasoning.
X and his wife went to HK with another couple, with their friends. When
the upgrade.
X was a soprano who was scheduled to perform in KL. X booked with
when it received them. The clean BOL shows that they were in
Sing Air a flight from Frankfurt to ML, and then ML to KL. Because of
the bad weather, Sing Air wasnt able to fly her to ML on time to reach
KL. So X just flew directly to KL with another flight and wasnt able to
considerations
o HELD: not liable
JAL was unable to land in MLA for two weeks because Pinatubo erupted
the costs.
When can the consignee of the goods refuse to take delivery of the
goods and just claim damages?
o 1. When the partial loss makes the entire thing useless
o 2. When the damage makes the goods useless for the purpose
o
o
passport/travel documents.
o HELD: This is not the airlines fault.
applies
If goods are transshipped, who is liable?
o The ultimate carrier
o What if the goods were actually damaged during the first
leg?
131
action?
Carrier who executed the transportation contract, or
which crashed and damaged the goods. Claim was against the
vessel. Vessel claimed it was not liable because the harbor pilot
reservation
When does a reservation have no effect in
is responsible
When must the consignee pay for freight and expenses?
o Within 24 hours of receipt
o Otherwise, the carrier may ask that the goods be dissolved
the vessel
3. For indemnities due to third persons due to conduct in the
persons
Goods arrived at the pier. Then the vessel hired a harbor pilot,
relieving responsibility?
When the carrier who made the reservation
employees
o 5. Collision due to the fault of the captain
Real and hypothecary nature of maritime commerce:
o If liability is incurred, it is not the owner that incurs the liability
attaches to the thing. So if the vessel sinks, the liability is
extinguished.
The liability of the ship owner is limited to the value of
so the buyer refused to receive the goods. The carriage piled up.
Who is liable?
o The consignee. The contract of sale and the contract of
shipment are two different contracts. The consignee should
from liability.
What are the exceptions (usually asked)?
1. If the ship owner is at fault (i.e. the vessel is not
seaworthy)
Davao.
132
stipulation that the owner will not be liable for damages due to
General averages
Particular averages
None
Accidental damage
damage alone
voyage
What is owner pro hac vice?
o Owner for this occasion
o If it is a public carrier, it temporarily
the indemnity
becomes GFF)
2. Time charter
Contract for the use of the vessel for a
unloading
What is the nature of the time/vessel charter?
The owner of the ship retains ownership and control
133
o
o
o
vessel
3. Loss suffered in value of goods sold at arrivals under stress
o
o
o
to lighten load
[Emo solutions]
1. Cables or masts cut or anchors and chains abandoned
2. Damages suffered by goods through opening made in vessel
o
o
o
o
o
(Maritime tort)
o The provisions on civil tort do not apply
ex. last clear chance, rule of comparative fault, due
o
overboard
What are the requisites of general averages?
o 1. There is common danger
There is no common danger when the damage was
due to fault of the captain
2. For common safety part of the vessel/cargo is sacrificed
o
o
is made
i.e. the captain conferred with the officers, the cargo
vessels
If you cannot tell which one is at fault:
Same rules as if both are at fault
Rule of inscrutable fault
o If a third vessel is at fault:
The third vessel is liable for losses and damages
o If collision was due to fortuitous event:
Each shall bear their own damage
What is the doctrine of error in extremis in collisions?
o There are three zones in collision:
First time up to the moment when risk of collision
o
begins
Second when risk of collision begins until the
impact
Thus, even when a ship with right of way suddenly changes its
course during third zone, in an effort to avoid collision due to
134
its a useless effort, the ship with right of way must not be
lading and the BOL indicates this greater amount, the ship
owner is liable for that greater amount
COGSA applies
Even if the cargo owner did not file a claim, it can still sue. Filing a claim
BUT if the nature and value of the goods are stated in the bill of
to another document
Compare the prescriptive periods:
o Code of commerce:
COGSA:
will step into his shoes and will find himself barred
o
transportation charge
Prescription for court claim
Claim is a condition precedent
from recovery.
When does the one year prescription not apply?
apparent
Prescription for court claim
135
In the old law, ice plants were regulated as public utility, but
them.
In case of tricycles, it is now the municipalities/cities who issue
agency
Can foreigners own public utility properties?
o Mere ownership of the properties used by public utilities does
authorized
2. Operator denies there is a need to expand his
not make one a public utility. So a foreign entity can own the
service
3. The old operator did not apply until a new applicant
emerged
4. Service of the prior operator must be deficient
5. Prior operator given a chance to expand but failed
public convenience.
So: if the legislative grants a franchise, its a CNPC. If no
the authority
2. Holder is just a dummy
136
to do so
Now and then, this is why power plants can submit adjusted
hearing.
2. Construct, maintain, operate new units to extend facilities
o
o
o
approval valid?
particulars.
If a customer claims that his service of electricity was improperly
disconnected, where does he file?
o With the ERC, which has the power to direct the power
persons.
What is the standard that should be used when an admin body
fixes rates of public utilities?
o The only standard is that it must be reasonable and just.
o Factors considered:
2. Rate base
rate-fixing.
Same file with the court if you want to question how Meralco
137
measuring appliances
o 5. Order to compel operators to furnish proper service
o 6. Allowing extension of facilities
When is notice and hearing not required?
o 1. Investigation of public utilities
o 2. Valuation of properties of public utilities
o 3. Examination and test of measuring appliances
o 4. Grant of special permits to make extra or special trips in
contribute
Constitution
In general, no restrictions on foreign investments, except for
to undertake measures to gradually improve Philippine
and socio-economic
to national development
days or more
5. Participating in management of domestic business
6. Any other act that implies continuity of business dealings for
commercial gain or pursuant to objective of the organization
Does not include:
138
own name
Define export enterprise:
o Enterprise where the manufacturer, processor, or service
(including tourism) enterprise exports at least 60% of its output
o Or purchase-and-export of at least 60% of the products
Define domestic market enterprise:
But
if
it
involves
highly-advanced
negative lists.
o If they seek incentives, register with the BOI.
What is the rule on foreign investments in export-oriented
enterprises?
o Can be up to 100%, if not on the negative lists
o If the export-oriented enterprise is not a Philippine national,
register with BOI, which will check compliance with the 60%
o
o
municipalities or cities
by the SEC/BTRCP.
What is the rule on foreign investments in domestic market
enterprises?
o Can be up to 100%, if not prohibited or limited in the
Defense
2. Activities which impact public health and morals
When is it not
necessary?
o Presentment for payment not necessary to charge the primarily
reasons
liable person
139
get paid
But for those secondarily liable (indorsers and drawer) there
is need for presentment for payment
liable
So, the bottomline: the instrument must be
paid
banks
Sec 72 when presentment is sufficient
o REQUISITES:
140
of
business/residence
Sec 74
o NI must be exhibited to the person from whom payment is
o
o
Sec 71
demanded
So he can check genuineness
This is why telephone as demand is not allowed
HELD:
Letter of
made during banking hours. Law assumes that the bank will
be the source of the funds.
But if presentment is made beyond banking hours, it is valid if
the funds will not come from the bank, as long as it falls on the
payment
INDORSER when instrument was made/accepted for
indorsers accommodation, and indorser has no reason to
indorsement is discharged.
Failure excused on two grounds:
shown
Sec 75
o Presentment where instrument payable at bank must be
date of maturity.
Sec 76-78
o Applies when principal debtors is:
Dead
Liable as partners
diligence
o If partners, to any of the partners
141
prior parties that have right of recourse against the one given
notice against
o Notice may be given by holder himself or agent of the holder.
Sec 90 Who can give notice of dishonor
o 1. Holder
o 2. Agent of holder
o 3. Party to the instrument who may be compelled to pay the
principal debtor
First National bank: PN payable at FNB. Maker had sufficient
funds. But holder did not show up at day of maturity. Dillydallied then the maker became insolvent. Had he shown up
by then, he would have been paid.
HELD:
No.
o
o
The fact
should pay.
N.B. Remember, failure to make proper presentment only
discharges those secondarily liable.
person is still liable, although the holder may not claim interest
Notice of dishonor
Sec 89 dishonor
o Give notice of dishonor
o Any party may be compelled to pay it to the holder with right of
o
reimbursement from
4. Agent of such party
What about strangers?
Sec 91
o Notice may be given by a party or an agent
o Agent need not be authorized by the party
A) notify principal
On Tuesday
defective
reimbursement
ABCDE
142
o
o
o
o
o
verbal/oral communication
Rule as to jointly liable parties:
o If partners?
to receiving letters
2. To place of business or residence
3. Place where he is sojourning
If notice is actually received, although not according to
It is still valid
When can there be waiver of notice of dishonor?
o 1. Before actual time for giving it comes
o 2. Or after failure to give it
o Can waiver be implied?
Yes.
Who is affected by a waiver in an instrument?
o If written on the instrument all the parties
o If written over a signature just that person
Waiver of protest
o Includes presentment and notice of dishonor (steps to hold a
person secondarily liable)
When is notice of DH not needed to be given to drawer?
o 1. Drawer and drawee are the same person
o 2. Drawee is fictitious person or has no capacity to contract
o 3. Drawer is the person to whom instrument was presented for
payment
office
N.B. This same time is counted again, after a party receives
not there.
antecedent parties
What is the effect of miscarriage in mails?
honor
143
would be dishonor.
When is notice of DH not needed to be given to indorser?
o 1. Drawee is fictitious person or has no capacity to contract
o
was made
3. Instrument was made or accepted for his accommodation
Drawer
Indorser
be paid by drawee
time of acceptance
What if there is a promise to accept in writing?
C indorsed the
thereof
NB: this applies for bills that do not exist yet
when the promise is made (Ex. BOE
If an instrument was not accepted, and notice of dishonor by nonacceptance is given, is there need to give notice of dishonor by
non-payment?
o No.
144
pursuant to a LOC)
o Cannot be other than payment of money
Must accept within 24 hours from presentment
o Acceptance deemed done on date of presentment
discharged
payment
What is the special rule if the bill was dishonored
accept pa rin?
3. When it is overdue
of instrument
2. Bill expressly requires acceptance
3. Bill is payable elsewhere than residence or place of business
of drawee
What about other cases?
place
o 2. Qualified
Conditional
Partial
As to time
145
expect
guide
on
presentment
for
acceptance,
dishonor,
payment]
business of drawee
OTHER OPTION May choose to negotiate it within a reasonable time
Consequence: will discharge drawer and all other indorsers
EXCEPTIONS no need to present if/or treated as dishonored if:
o 1. Drawee is dead, has absconded, fictitious, or lacks capacity
o
o
is
excused
will
be
for
paid
if
fortuitous
circumstances
Except: will not prejudice rights of HIDC after omission
to contract
2. Presentment cannot be made even after reasonable
presented
2. Delay
instrument
to protest
Step 3: Give notice of dishonor by non-payment to secondarily liable
the
after
reasonable diligence
3. Waiver of presentment, express or implied
Protest
diligence
3. Although presentment is irregular, acceptance was refused
bill
Made by Notary Public or respectable resident + two or more credible
persons
o EXCEPT,
no
need to
give
notice: if
instrument
was
anytime
witnesses
When must it be done?
o Day of DH
o If bill is noted in the notarial register, protest may be made
needed
Except
Where?
o Place of DH
o Except when expressly payable at the residence/business of
another person apart from the drawee
What is protest for better security?
o If the drawee was adjudged bankrupt or insolvent, or made
assignment for benefit of creditors even before the bill
o
146
matures
Is this mandatory?
Nope
What is the purpose?
with
o Excused for fortuitous event
When is protest also done?
o When bill is lost, destroyed, wrongly detained protest made
sent separately]
What if different parts are negotiated to different HIDCs?
o The one whose title accrues first is the true owner
o But the one who gets acceptance or payment first is the one
who will be able to collect
Indorser of two different parts is liable on every such part
How should the drawee accept?
o Accept on any part, and on one part ONLY. If he accepts on
o
Main Principle: each part of the bill, numbered and referring to the other
parts, the whole of the parts constitute one bill
147
liable
Discharge of one part is discharge of all