2013 bar examinations

8/11/2019 2013 Bar Examinations

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Essay:

Lito obtained a loan of

Php.1,000,000 from Ferdie payable

within one year. To securepayment, Lito executed a chattel

mortgage on a Toyota Avanza and a

real estate mortgage on a 200-

square meter piece of property.


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Problem:

A. Would it be legally significantfrom the

point of view of validity and enforceability- if

the loan and the mortgages were in the public

or private instruments?


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Answer:No, it is not significant from the point of view of validity and

enforceability.

Under the law respecting a contract of loan it is not required

that it be in a public or private instrument, what is required in

such contracts is that there is consent, object, and cause between

both parties and that it only be in writing even a private one.

With respect to the contract of mortgage, under the law evenif it is required that it be contained in a public document and

registered in the Register of Deeds, such contract is still binding

with respect to both parties who entered the contract of

mortgage. However such non-registration and non-containment in

a public document does not provide them security against claims

made by third persons so that if there is a claim made by a third

person over such property it does not make their contract of

mortgage a preferred claim over the claim of the third person.


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B. Litos failure to pay led to the extra-judicial

foreclosure of the mortgaged real property.Within a year from foreclosure. Lito tendered

a managers check to Ferdie to redeem the

property. Ferdie refused to accept payment

on the ground that he wanted payment in

cash; the check does not qualify as legal

tender and does not include the interest

payment. Is Ferdies refusal justified?


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Answer:

No, His refusal is not justified.Under the law, the right of redemption is an

absolute privilege, the exercise of which isentirely dependent upon the will and discretion

of the redemptioner. Hence, being discretionary,Ferdie may not refuse the exercise of right ofredemption by Lito. Under jurisprudence, theSupreme Court has already sanctioned

redemption by check, Hence, he may not refuse ifLito chooses to redeem it by issuance of a check.


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II. When the obligation became due

and demandable. C turned out to be

insolvent. Should the share ofinsolvent debtor C be divided only

between the two oA, B, C and D are

the solidary debtors of X for

Php.40,000. X released D from the

payment of his share ofPhp.10,000ther remaining debtors, A

and B?


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A. Yes. Remission of Ds share carries with ittotal extinguishment of his obligation to the

benefit of the solidary debtors. B. Yes. The civil code recognizes remission as a

mode of extinguishing an obligation. Thisclearly applies to D.

C. No. The rule is that gratuitous acts shouldbe restrictively construed, allowing only theleast transmission of rights.

D. No. As the realease of the share of onedebtor would then increase the burden of theother debtors without their consent.


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D. No. As the realease of the share of one debtor

would then increase the burden of the other debtors

without their consent.Under the New Civil Code:Art.1217 par.3

When one of the solidary debtors cannot, because of his insolvency,reimburse his share to the debtor paying the obligation, such share shallbe borne by all his co-debtors, in proportion to the debt of each

Art.1215

novation, compensation, confusion, or remission of the debt, made byany of the solidary debtors, shall extinguish the obligation, without

prejudice to the provisions of Art.1219.

Art.1219

The remission made by the creditor of the share which affects one of thesolidary debtors does not release the latter from his responsibilitytowards the co-debtors, in case the debt had been totally paid by anyoneof them before the remission was effected.


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III. Amador obatained a loan of P300,000. from

Basilio payable oon March 25, 2012. As security

for the payment of his loan, Amadorconstituted a mortgage on his residential house

and lot in Basilios favor. Cacho, a good friends

of Amador, guaranteed and obligated himselfto pay Basilio, in case Armador fails to pay his

loan at maturity.

III. (1) If Amador fails to pay Basilio his loan in

March 25, 2012 can Basilio compel Cacho to

pay?


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A. No, Basilio cannot compel Cacho to paybecause as guarantor, Cacho can invoke theprinciple of excussion, i.e., all the assets of

Basilio must first be exhausted. B. No, Basilio cannot compel Cacho to pay

bacause Basilio has not exhausted the avialableremedies agaist Amador.

C. Yes, Basilio canot compel Cacho to paybecause the nature of Cachos undertakingindicates that he has bound himself solidarilywith Armador.

D. Yes, Basilio can compel Cacho who boundhimself to unconditionally pay in case Amadorfail to pay; thus the benefit of excussion will notapply.


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C. Yes, Basilio can compel Cacho to pay because the

nature of Cachos undertaking indicates that he has

bound himself solidarily with Armador.

What has been entered into by Cancho with

Basilio is a contract of surety therefore he is

solidarily liable with Amador if the latter fails

to pay. By employing the words, in case

Amador fails to pay, he binds himself

solidarily with Amador making him liable forthe contract of surety.


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III. (2) If Amador sell his residential house and lot to

Dieg, can Basilio foreclose the real estate mortgage?

A. Yes, Basillio can foreclose the real estate mortgagebecause real estate mortgage creates a a real rightthat attaches to the property.

B. Yes,Basilio can foreclose the real estate mortgage.

It is binding upon Diego as the mortgage embodied ina public instrument

C. No, Basilio cannot foreclose the real estatemortgage. The sale confers ownership on the buyer,who must therefore consent.

D. No, Basilio cannot foreclose the real estatemortgage. To deprive the new owner of ownershipand possesion is unjustand inequitable.


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A. Yes, Basillio can foreclose the real estate

mortgage because real estate mortgage creates

a a real right that attaches to the property.Under Art.2126 of the NCC:

The mortgage directly and immediately subjects theproperty upon which it is imposed, whoever the

possessor may be, to the fulfillment of the obligationfor whose security it was constituted.

A contract of mortgage registered creates a right inrem, a real right, a lien inseperable from theproperty mortgaged, which is enforceable against

the whole world, affording specific security for thesatisfaction of a debt. Hence, even if it was sold thecontract of mortgage is still attached to the propertyand may be subject to foreclosure when the exerciseof the right to foreclose is exercised.


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IV. Cruz lent Jose his car until Jose

finished his Bar exams. Soon after

Cruz delivered the car, Jose brought it

to Mitsubishi Cubao for maintenance

check up and incurred cost of P8,000.Seeing the carspeeling and faded

paint, Jose also had the car repainted

for P10,000. Answer the two questionbelow based on these common facts.


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IV. (1) After the bar exams, Cruz asked for the return of his car. Josesaid he would return it as soon as Cruz has reimbursed him for thecar maintenance and repainting costs of Php.18,000. Is Joses

refusal justified?

a. No, Joses refusal is not justifie. In this kind of contract, Jose isobliged to pay for all the expenses incurred for the preservationof the thing loaned.

b. Yes, Joses refusal is justified. He is obliged to pay for all theordinary and extraordinary expenses, but subject toreimbursement from Cruz.

c. Yes, Joses refusal is justified. The principle of unjust enrichmentwarrants the reimbursement of Joses expenses.

d. No, Joses refusal is not justified. The expenses he incurred areuseful for the preservation of the thing loaned. It is Josesobligation to shoulder these useful expenses.


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IV.(2) During the bar exam month, Jose lent the car to hisgirlfriend, Jolie, who parked the car at the Mall of Asiasopen parking lot, with the ignition key inside the car. Car

thieves broke into and took the car.Is Jose liable to Cruz forthe loss of the car due to the Jolies negligence?

a. No, Jose is not liable to Cruz as the loss was not due to hisfault or negligence.

b. No, Jose is not liable to Cruz. In the absence of any

prohibition, Jose could lend the car to Jolie. Since the losswas due to force majeure, neither Jose nor Jolie is liable..

c. Yes, Jose is liable to Cruz. Since Jose lent the car to Joliewithout Cruzs consent, Jose must bear the consequentloss of the car.

d. Yes, Jose is liable to Cruz. The contract between them ispersonal in nature. Jose can neither lend nor lease the carto a third person.


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D. Yes, Jose is liable to Cruz. The contract

between them is personal in nature. Jose can

neither lend nor lease the car to a third person.Under the NCC:

Art1939. Commodatum is purely personal in character.Consequently:

(2) The bailee can neither lend nor lease the object of the

contract to a third person. However, the members of the baileeshousehold may make use of the thing loaned, unless there is astipulation to the contrary, or unless the nature of the thing forbidssuch use.

Art.1942 The bailee is liable for the loss of the thing, even if itshould be through a fortuitous event:

(1)If he devotes the thing to any purpose different from that forwhich it has been loaned;

(4) If he lends or leases the thing to a third person, who is not amember of his household.


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2013 bar examinations

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