Bus Law 51

Comparisons



Judicial Extrajudicial
Creation Will of the court Will of the contracting parties
Purpose Security or to ensure the right of a party to
the property or to recover in case of
favorable judgment
Custody and safekeeping
Subject Matter Generally immovables Movables only
Cause Always onerous May be compensated but generally gratuitous
Return of
thing
Upon order of the court/ end of litigation Upon demand of depositor
In whose behalf it
is held
Person who has a right Depositor or /3rd person designated









COMMODATUM MUTUUM
(SIMPLE LOAN)
Object Ordinarily nonconsumable Money or other consumable thing
Ownership of
the thing
Ownership is retained by the lender Ownership is transferred to the borrower
Cause Essentially gratuitous Gratuitous or onerous (w/ stipulation to pay
interest)
Thing to be
returned
Borrower must return the same
thing loaned
Borrower need only pay the same amount of the
same kind and
quality
Subject
Matter
May involve real or personal
property
Only personal
property
Purpose Loan for use or temporary possession Loan for
consumption
When to
return
Bailor may demand the return of the thing
loaned before the expiration of the term in
case of urgent need
Lender may not demand its return before the
lapse of the term agreed upon
Who bears
risk of loss
Loss of the subject matter is
suffered by the bailor since he is the
owner
Borrower suffers the loss (even if caused
exclusively by a fortuitous event and he is not
therefore discharged from his duty to pay)
Nature Purely personal Not purely personal
)
Basis of
Comparison
Judicial Deposit Extra-judicial Deposit
Cause or origin By will of the courts By will of the parties. Hence, there is a contract
Purpose Security; Secure the right of a party to
recover in case of favorable judgment.
Custody; Safekeeping of the thing
Subject Matter Either movable or immovable property but
generally, immovable
Only movable property
Remuneration Always remunerated (onerous) Generally gratuitous, but may be compensated
In whose behalf
it is held
In behalf of the person who, by the
judgment, has a right
In behalf of the depositor or third person
designated


GUARANTY SURETYSHIP
Liability depends upon an independent
agreement to pay the obligation if the primary
debtor fails to do so
Assumes liability as a regular party to the
undertaking
Engagement is a collateral undertaking Charged as an original promisor
Secondarily liable he contracts to pay if, by
the use of due diligence, the dent cannot be
paid
Primarily liable undertakes directly for the payment
without reference to the solvency of the principal, and is so
responsible at once the latter makes default, without any
demand by the creditor upon the principal whatsoever or
any notice of default
Only binds himself to pay if the principal cannot
or unable to pay
Undertakes to pay if the principal does not pay, without
regard to his
ability to do so
Insurer of the solvency of the debtor Insurer of the debt
Does not contract that the principal will pay,
but simply that he is
able to do so
Pay the creditor without qualification if the principal debtor
does not pay. Hence, the responsibility or obligation assumed
by the surety is greater or more onerous than that of a
guarantor


PLEDGE MORTGAGE
Constituted on movables Constituted on immovables
Property is delivered to the pledgee, or by
common consent to a 3
rd
person
Delivery not necessary
Not valid against 3
rd
persons unless a description
of the thing pledged and the date of the pledge
appear in a public instrument
Not valid against 3
rd
persons if not registered





CHATTEL MORTGAGE PLEDGE
Involves movable property Involves movable property
Delivery of the personal property is NOT
necessary
Delivery of the personal property is necessary
Registration is necessary for validity Registration is NOT necessary for validity
Procedure: Sec 14 of Act no 1508, as amended Procedure: Art 2112 of Civil Code
If the property is foreclosed, the excess over the
amount due
goes to the debtor
If the property is sold, the debtor is not entitled to the to the
excess
UNLESS it is otherwise agreed or in case of legal pledge
Creditor is entitled to deficiency from the debtor
EXCEPT if it is a security for the purchase of
personal property in installments
Creditor is not entitled to recover deficiency
notwithstanding any
stipulation to the contrary


Antichresis Pledge
Refers to real property Refers to personal property
Perfected by mere consent Perfected by delivery of the thing pledged
Consensual contract Real contract

Antichresis Real Mortgage
Property is delivered to creditor Debtor usually retains possession of the
property
Creditor acquires only the right to receive the
fruits of the property, hence, it does not
produce a real right
Creditor does not have any right to receive the fruits, but the
mortgage creates a real right over the property
The creditor, unless there is stipulation to the
contrary, is obliged to pay the taxes and charges
upon the
estate
The creditor has no such obligation
It is expressly stipulated that the creditor given
possession of the property shall apply all the
fruits thereof to the payment of interest, if
owing, and thereafter to the principal
There is no such obligation on part of mortgagee
Subject matter of both is real property