Summary
Highlights
The discussion begins by revisiting credit transactions, focusing on Chapter 3: Mortgage. Mortgage, along with pledge, guarantee, and suretyship, are accessory contracts that secure a principal obligation, typically a loan. The video clarifies that immovable properties are the object of a real estate mortgage, while movable properties are covered by a chattel mortgage. A real mortgage is defined as a contract where a debtor guarantees a creditor the fulfillment of a principal obligation by subjecting an involved property to compliance.
Nine characteristics of a real estate mortgage are outlined. These include being a real right (binding all, requiring public instrument), an accessory contract (dependent on a principal contract), indivisible, inseparable, involving real property, and having a limitation on ownership without appropriation by the creditor. Mortgages serve as a lien claim by the creditor. Three types of mortgages are discussed: conventional (voluntary agreement), legal (by operation of law), and equitable (implied, often in sales with pacto de retro conditions).
Article 2125 emphasizes the indispensable requirement of recording the mortgage document in the Registry of Property for it to be validly constituted and bind third parties. This recording serves as a notice to the whole world. Even without registration, the mortgage is binding between the parties. Article 2126 states that a mortgage directly and immediately subjects the property, wherever the possessor may be, to the fulfillment of the secured obligation. The buyer of a mortgaged property is liable only to the extent of the property itself, unless there's an assumption of personal liability.
Article 2127 explains that a mortgage extends to natural accessions, improvements, growing fruits, rents, income, and indemnity from insurance or expropriation, particularly when the obligation becomes due. Article 2128 allows for the alienation or assignment of mortgage credit to a third person with the necessary formalities. Article 2129 indicates that a creditor can claim payment from a third person in possession of the mortgaged property, to the extent of the property itself, after demand and failure of the debtor to pay.
A stipulation forbidding the owner from alienating the mortgaged immovable (pactum de non alienando) is void as it is contrary to public policy. Article 2131 states that the form, extent, and consequences of a mortgage are governed by the Civil Code, mortgage law, and land registration law. The video also defines 'depo' or upset price (a void stipulation for foreclosure sales) and discusses the insurable interest of both mortgagor and mortgagee. Equity of redemption allows the mortgagor to redeem the property after default but before the judicial sale is confirmed, while right of redemption is after the sale.
Chapter 4 introduces Antichresis, a contract where the creditor acquires the right to receive the fruits of an immovable property, with the obligation to apply them to the payment of interest and then the principal. Antichresis differs from pledge (movable) and mortgage (immovable and movable) by exclusively involving immovable property. It is characterized as a real right and a formal contract. The actual market value of the fruits determines their application to interest and principal. The amount of principal and interest must be specified in writing. The antichretic creditor is obliged to pay taxes, charges, and necessary expenses for preservation, deducting these from the fruits.
Article 2136 specifies that the debtor cannot reacquire enjoyment of the immovable without fully paying their debt. Conversely, the creditor can compel the debtor to re-enter enjoyment of the property to exempt themselves from the obligations of paying taxes, charges, and expenses, unless stipulated otherwise. Article 2137 states that the creditor does not acquire ownership of the real estate for non-payment; any such stipulation (pactum commissorium) is void. The creditor's recourse is to petition the court for payment or foreclosure sale of the property. Parties may stipulate that interest be compensated by fruits, with any excess applied to the principal.
The final topic is Chattel Mortgage, which involves personal property recorded in the chattel mortgage register as security for an obligation. It is also an accessory contract. A key distinction from pledge is that in a chattel mortgage, possession of the personal property remains with the debtor. In a pledge, possession is transferred to the creditor (pledgee). Provisions concerning pledge are applicable to chattel mortgages if not inconsistent with the chattel mortgage law. The main difference lies in possession: with the debtor in chattel mortgage, and with the creditor in pledge.