Professional Documents
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Mercantile Law Reviewer
Mercantile Law Reviewer
LAWS COVERED
Branch of private law that regulates the juridical relations arising from commercial acts.
2. Auxilliary – Natural Law, Foreign Statutory Law and Foreign Court Decisions, and Opinions.
The definition of Commercial Law provides the framework for any question relating to
Commercial Law. Therefore, it is important to KNOW AND UNDERSTAND:
Section 19. The State shall develop a self-reliant and independent national economy effectively controlled
by Filipinos.
Section 20. The State recognizes the indispensable role of the private sector, encourages private
enterprise, and provides incentives to needed investments.
Section 1. The goals of the national economy are a more equitable distribution of opportunities, income,
and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit
of the people; and an expanding productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development and
agrarian reform, through industries that make full of efficient use of human and natural resources, and
which are competitive in both domestic and foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all region s of the country shall be given
optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar
collective organizations, shall be encouraged to broaden the base of their ownership.
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Section 6. The use of property bears a social function, and all economic agents shall contribute to the
common good. Individuals and private groups, including corporations, cooperatives, and similar collective
organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty
of the State to promote distributive justice and to intervene when the common good so demands.
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Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the
national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least
sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its national jurisdiction and
in accordance with its national goals and priorities.
Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility
shall be granted except to citizens of the Philippines or to corporations or associations organized under the
laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such
franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years.
Neither shall any such franchise or right be granted except under the condition that it shall be subject to
amendment, alteration, or repeal by the Congress when the common good so requires. The State shall
encourage equity participation in public utilities by the general public. The participation of foreign investors
in the governing body of any public utility enterprise shall be limited to their proportionate share in its
capital, and all the executive and managing officers of such corporation or association must be citizens of
the Philippines.
Section 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make them competitive.
Section 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity.
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Section 14. The sustained development of a reservoir of national talents consisting of Filipino scientists,
entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen
in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate
its transfer for the national benefit. The practice of all professions in the Philippines shall be limited to
Filipino citizens, save in cases prescribed by law.
Section 15. The Congress shall create an agency to promote the viability and growth of cooperatives as
instruments for social justice and economic development.
Section 16. The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations. Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and subject to the test of economic
viability.
Section 17. In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately-owned public utility or business affected with public interest.
Section 18. The State may, in the interest of national welfare or defense, establish and operate vital
industries and, upon payment of just compensation, transfer to public ownership utilities and other private
enterprises to be operated by the Government.
Section 19. The State shall regulate or prohibit monopolies when the public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed.
Section 20. The Congress shall establish an independent central monetary authority, the members of
whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism,
the majority of whom shall come from the private sector. They shall also be subject to such other
qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the
areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise
such regulatory powers as may be provided by law over the operations of finance companies and other
institutions performing similar functions.
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Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws,
shall function as the central monetary authority.
Section 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary
authority. Information on foreign loans obtained or guaranteed by the Government shall be made available
to the public.
A letter of credit is a written instrument whereby the writer requests or authorizes the addressee to pay
money or deliver goods to a third person and assumes responsibility for payment of debt therefor to the
addressee.
A letter of credit is one whereby one person requests some other person to advance money or credit to a
third person, and promises that he will repay the same to the person making the advancement, or accept
the bills drawn upon himself for the like amount. Under Art.567-568 of the Code of the Commerce, letters of
credit are issued by one merchant to another for the purpose of attending to a commercial transaction. (BPI
vs. Commissioner of Internal Revenue [2006)
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Two Essential Conditions for a Letter of Credit
1. A letter of credit is issued in favor of a definite person and not to order. It is not a negotiable instrument
governed by the Negotiable Instruments Law.
2. It is limited to specified amount, which may be one or more but always with a maximum amount.
If any of the two circumstances is missing, it is not a letter of credit. It is a mere recommendation.
1. Issuer – This is the entity that will issue the credit. It usually is a bank but it can be any financial
institution of substance. The issuer assumes the full obligation topay the beneficiary upon the presentation
of the documents specified in the credit.
2. Applicant – The applicant is also known as the account party or customer. He requests from the issuer
the credit he wants for his beneficiary. He pays the issuer for the credit with cash or collateral so as to
secure the issuer the funds necessary for the reimbursement obligation to the beneficiary.
3. Beneficiary – The beneficiary is the party that will be identified in the credit as the entity entitled to draw
or demand payment under the letter of credit.
4. Advising Bank – The role of the advising bank is to notify the beneficiary that a credit has been issued
by another bank. It assumes no responsibility other than notifying the beneficiary. However, its obligation is
limited to accurately advising the terms of the credit that has been issued. In this capacity it is only playing
“post office”.
5. Confirming Bank – The responsibility of the confirming bank is that it becomes directly obligated on the
credit and now assumes the rights and obligations of the issuer. Typically, the confirming bank’s role is one
for geographic convenience, i.e., a bank located close to the beneficiary. However, it can also be a well-
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known bank, that will assume the responsibility for a lesser known bank by confirming their credit, therefore,
rendering the credit more acceptable to the beneficiary.
1. Commercial L/C
- Used as a method of payment in a contract sale of goods, so that the seller (beneficiary) can obtain
payment directly from the issuer instead of the beneficiary.
2. Stand by L/C
- This involves non-sale transactions. The L/C is used as guarantee, or secure either a monetary or non-
monetary obligation, whereby the issuer pays the creditor, if the debt defaults on the obligation.
1. Independence Rule – This principle of independence clearly states that the obligation of the paying bank is
in reading the text of the credit which is wholly independent from sales or other contracts on which the
credit may be based. The issuing bank is not required to evaluate if the beneficiary has performed under the
underlying contract or if it is contractually entitled to payment. The issuer is only obligated to pay upon
presentation of documents that conform to the requirements of the letter of credit.
Transfield Philippines vs Luzon Hydro Electric Corp. (GR No 146717, Nov 22, 2004, Tinga)
Transfield entered into a turn-key contract with Luzon Hydro Corp. (LHC). Under the contract, Transfield were
to construct a hydro-electric plants in Benguet and Ilocos. The contract provides for a period for which the
project is to be completed and also allows for the extension of the period provided that the extension is
based on justifiable grounds such as fortuitous event. In order to guarantee performance by Transfield, two
stand-by letters of credit were required to be opened. During the construction of the plant, Transfield
requested for extension of time citing fortuitous events brought about by typhoon, barricades and
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demonstration. LHC did not give due course to the extension of the period prayed for but referred the matter
to arbitration committee.
In the meanwhile, because of the delay in the construction of the plant, LHC called on the stand-by letters of
credit because of default. However, the demand was objected by Transfield on the ground that there is still
pending arbitration on their request for extension of time. LHC invoked the “independence principle”. On the
other hand, Transfield claims fraud on the part of LHC on calling the stand-by letters of credit.
Under the independence principle, a LC accommodation is entirely distinct and separate, independent
agreement. It is not supposed to be affected by the main contract upon which it rests.
2. Strict Compliance Rule – The beneficiary must make presentment in strict compliance with the terms,
conditions and procedures of the credit. Further to this, since the adherence of the requirements must be
strictly applied to the beneficiary, the beneficiary must know precisely and unequivocally what those
requirements are.
3. Fraud Exception Principle -exists when the beneficiary, for the purpose of drawing on the credit,
fraudulently presents to the confirming bank, documents that contain, expressly or by implication, material
representations of fact that to his knowledge are untrue.
Where the trial court rendered a decision finding the buyer solely liable to pay the seller and omitted by
inadvertence to insert in its decision the phrase “without prejudice to the decision that will be made against
the issuing bank “, the bank cannot evade responsibility based on this ground. The seller who is entitled to
draw on the credit line of the buyer from a bank against the presentation of sales invoices and official
receipts of the purchases and who obtained a court judgment solely against the buyer even though the suit
is against the bank and the buyer may still enforce the liability of the same bank under a letter of credit
issued to secure the credit line. The so-called "independence principle" in a letter of credit assures the seller
or the beneficiary of prompt payment independent of any breach of the main contract and precludes the
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issuing bank from determining whether the main contract is actually accomplished or not. (Philippine
National Bank vs. San Miguel Corporation. G.R. No. 186063, January 15, 2014)
We emphasize that fraud in its general sense, is deemed to comprise anything calculated to deceive,
including all acts, omissions, and concealment involving a breach of legal duty or equitable duty, trust, or
confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious
advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity
can device and which are resorted to by one individual to secure an advantage over another by false
suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair
way by which another is cheated.
It is true that ordinarily, in a letter of credit transaction, the bank merely substitutes its own promise to pay
for the promise to pay of one of its customers, who in turn promises to pay the bank the amount of funds
mentioned in the letters of credit plus credit or commitments fees mutually agreed upon. Once the issuing
bank shall have paid the beneficiary after the latter's compliance with the terms of the letter of credit, the
issuing bank is entitled to reimbursement for the amount it paid under the letter of credit.
In the present case, however, no reimbursement was made outright, precisely because the letter of credit
was secured by a promissory note executed by SPI. The bank would have not agreed to this transaction had
it not been deceived by Gilbert Guy, et al. into believing the RMSI and SPI were one and the same entity. Guy
and his cohorts' acts in (1) securing the letter of credit guaranteed by a promissory note in behalf of SPI;
and, (2) their act of representing SPI as RMSI's Division, were indicia of fraudulent acts because they fully
well know, even before transacting with the bank, that: (a) SPI was a separate entity from Smartnet
Philippines, the RMSI's Division, which has the Omnibus Credit Line; and (b) despite this knowledge, they
misrepresented to the bank that SPI is RMSI's division. Had it not for this false representation, AUB would
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have not granted SPI's letter of credit to be secured with a promissory note because SPI as a corporation has
no credit line with AUB and SPI by its own, has no credit standing.
The concept of guarantee vis-a-vis the concept of an irrevocable letter of credit are inconsistent with each
other. The guarantee theory destroys the independence of the bank's responsibility from the contract upon
which it was opened and the nature of both contracts is mutually in conflict with each other. In contracts of
guarantee, the guarantor's obligation is merely collateral and it arises only upon the default of the person
primarily liable. On the other hand, in an irrevocable letter of credit, the bank undertakes a primary
obligation. We have also defined a letter of credit as an engagement by a bank or other person made at the
request of a customer that the issuer shall honor drafts or other demands of payment upon compliance with
the conditions specified in the credit.
Letters of credit were developed for the purpose of insuring to a seller payment of a definite amount upon
the presentation of documents and is thus a commitment by the issuer that the party in whose favor it is
issued and who can collect upon it will have his credit against the applicant of the letter, duly paid in the
amount specified in the letter. They are in effect absolute undertakings to pay the money advanced or the
amount for which credit is given on the faith of the instrument. They are primary obligations and not
accessory contracts and while they are security arrangements, they are not converted thereby into
contracts of guaranty. What distinguishes letters of credit from other accessory contracts, is the
engagement of the issuing bank to pay the seller once the draft and other required shipping documents are
presented to it. They are definite undertakings to pay at sight once the documents stipulated therein are
presented.
Once the issuing bank shall have paid the beneficiary after the latter’s compliance with the terms of the
letter of credit, the issuing bank is entitled to reimbursement for the amount it paid under the letter of
credit. (Galvez vs. Court of Appeals [2012])
"Trust Receipt" shall refer to the written or printed document signed by the entrustee in favor of the
entruster containing terms and conditions substantially complying with the provisions of Presidential Decree
no.115. No further formality of execution or authentication shall be necessary to the validity of a trust
receipt.
"Entrustee" shall refer to the person having or taking possession of goods, documents or instruments
under a trust receipt transaction, and any successor in interest of such person for the purpose or purposes
specified in the trust receipt agreement.
"Entruster" shall refer to the person holding title over the goods, documents, or instruments subject of a
trust receipt transaction, and any successor in interest of such person.
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A trust receipt may be denominated in the Philippine currency or any foreign currency acceptable and
eligible as part of international reserves of the Philippines, the provisions of existing law, executive orders,
rules and regulations to the contrary notwithstanding: Provided, however, That in the case of trust receipts
denominated in foreign currency, payment shall be made in its equivalent in Philippine currency computed
at the prevailing exchange rate on the date the proceeds of sale of the goods, documents or instruments
held in trust by the entrustee are turned over to the entruster or on such other date as may be stipulated in
the trust receipt or other agreements executed between the entruster and the entrustee.
Rights of Entruster
1. The entruster shall be entitled to the proceeds from the sale of the goods, documents or instruments
released under a trust receipt to the entrustee to the extent of the amount owing to the entruster or as
appears in the trust receipt;
2. or to the return of the goods, documents or instruments in case of non-sale, and to the enforcement of
all other rights conferred on him in the trust receipt provided such are not contrary to the provisions of
this Decree
Obligations of Entrustee
The entrustee shall:
1. Hold the goods, documents or instruments in trust for the entruster and shall dispose of them strictly
in accordance with the terms and conditions of the trust receipt;
2. Receive the proceeds in trust for the entruster and turn over the same to the entruster to the extent of
the amount owing to the entruster or as appears on the trust receipt;
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3. Insure the goods for their total value against loss from fire, theft, pilferage or other casualties;
4. Keep said goods or proceeds thereof whether in money or whatever form, separate and capable of
identification as property of the entruster;
5. Return the goods, documents or instruments in the event of non-sale or upon demand of the entruster;
and
6. Observe all other terms and conditions of the trust receipt not contrary to the provisions of PD 115.
Who bears liability in case of loss
The risk of loss shall be borne by the entrustee. Loss of goods, documents or instruments which are the
subject of a trust receipt, pending their disposition, irrespective of whether or not it was due to the fault or
negligence of the entrustee, shall not extinguish his obligation to the entruster for the value thereof.
INC., PERCIVAL G. LLABAN and MANUEL P. LUCENTE, petitioners, vs. METROPOLITAN BANK &
TRUST COMPANY, respondent. (G.r. No. 159622. July 30, 2004.)
The Trust Receipts Law was enacted to safeguard commercial transactions and to offer an additional layer of
security to the lending bank. Trust receipts are indispensable contracts in international and domestic
business transactions. The prevalent use of trust receipts, the danger of their misuse and/or
misappropriation of the goods or proceeds realized from the sale of goods, documents or instruments held in
trust for entruster banks, and the need for regulation of trust receipt transactions to safeguard the rights
and enforce the obligations of the parties involved are the main thrusts of the Trust Receipts Law.
The second paragraph of Section 7 provides a statutory remedy available to an entruster in the event of
default or failure of the entrustee to comply with any of the terms and conditions of the trust receipt or any
other agreement between the entruster and the entrustee. More specifically, the entruster “may cancel the
trust and take possession of the goods, documents or instruments subject of the trust or of the proceeds
realized therefrom at any time”. The law further provides that “the entruster in possession of the goods,
documents or instruments may, on or after default, give notice to the entrustee of the intention to sell, and
may, not less than five days after serving or sending of such notice, sell the goods, documents or
instruments at public or private sale, and the entruster may, at a public sale, become a purchaser. The
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proceeds of any such sale, whether public or private, shall be applied (a) to the payment of the expenses
thereof; (b) to the payment of the expenses of re-taking, keeping and storing the goods, documents or
instruments; (c) to the satisfaction of the entrustee's indebtedness to the entruster. The entrustee shall
receive any surplus but shall be liable to the entruster for any deficiency.”
JESUS V. TIOMICO, petitioner, vs. THE HON. COURT OF APPEALS (FORMER FIFTH DIVISION) and
PEOPLE OF THE PHILIPPINES, respondent (G.R. No. 122539. March 4, 1999.)
The Trust Receipts Law punishes the dishonesty and abuse of confidence in the handling of money or goods
to the prejudice of another regardless of whether the latter is the owner or not. The law does not seek to
enforce payment of a loan. Thus, there can be no violation of the right against imprisonment for non-
payment of a debt."
MELVIN COLINARES and LORDINO VELOSO, petitioners, vs. HONORABLE COURT OF APPEALS, and
THE PEOPLE OF THE PHILIPPINES, respondents. (G.R. No. 90828. September 5, 2000.)
There are two possible situations in a trust receipt transaction. The first is covered by the provision which
refers to money received under the obligation involving the duty to deliver it (entregarla) to the owner of the
merchandise sold. The second is covered by the provision which refers to merchandise received under the
obligation to "return" it (devolvera) to the owner.
Hur Tin Yang vs. People of the Philippines. (G.R. No. 195117, August 14, 2013)
When both parties entered into an agreement knowing fully well that the return of the goods subject of the
trust receipt is not possible even without any fault on the part of the trustee, it is not a trust receipt
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transaction penalized under Sec. 13 of PD 115 in relation to Art. 315, par. 1(b) of the RPC, as the only
obligation actually agreed upon by the parties would be the return of the proceeds of the sale transaction.
This transaction becomes a mere loan, where the borrower is obligated to pay the bank the amount spent
for the purchase of the goods.
Can an entrustee invoke the principle of res perit domino to evade liability under the Trust
Receipts?
Where the entrustee tendered the return of the articles to the entrustee because they did not meet its
manufacturing requirements but the latter refused to accept and as a consequence, the entruster stored
them in its warehouse which was, however, gutted by fire, the entrustee’s obligation was not extinguished
despite the tender and its invocation of the principle of res perit domino. Under the Trust Receipts law, the
loss of the goods under trust receipt regardless of the cause and the period or time it occurred, does not
extinguish the civil obligation of the entrustee. A trust receipt has two features, the loan and security
features. The loan is brought about by the fact that the entruster financed the importation or purchase of
the goods under TR. Until and unless this loan is paid, the obligation to pay subsists. The principle of res
perit domino will not apply if under the trust receipt, the bank is made to appear as the owner, it was but an
artificial expedient, more of legal fiction than fact, for if it were really so, it could dispose of the goods in any
manner that it wants, which it cannot do, just to give consistency with the purpose of the trust receipt of
giving a stronger security for the loan obtained by the importer. To consider the bank as the true owner from
the inception of the transaction would be to disregard the loan feature thereof. (Rosario Textiles vs. Home
Bankers [2005])
I
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f the entrustee is a corporation in violation of the Trust Receipts Law, to whom shall the penalty
be imposed?
Recognizing the impossibility of imposing the penalty of imprisonment on a corporation, it was provided that
if the entrustee is a corporation, the penalty shall be imposed upon the directors, officers, employees or
other officials or persons responsible for the offense. However, the person signing the trust receipt for the
corporation is not solidarily liable with the entrustee-corporation for the civil liability arising from the
criminal offense unless he personally bound himself under a separate contract of surety or guaranty.
May a civil case filed by the entruster against the entrustee proceed separately from the
criminal action?
Yes. A civil case filed by the entruster against the entrustees based on the failure of the latter to comply with
their obligation under the Trust Receipt agreement is proper because this breach of obligation is separate
and distinct from any criminal liability for misuse and/or misappropriation of goods or proceeds realized from
the sale of goods released under the trust receipts. Being based on an obligation ex contractu and not ex
delicto, the civil action may proceed independently of the criminal proceedings instituted against the
entrustees regardless of the result of the latter. (Sarmiento vs. Court of Appeals [2002])
May novation be invoked to reverse convictions in cases where an underlying contract initially
defined the relation of the parties such as the contract in the sale of goods in violation of the
Trust Receipts Law?
Yes. Novation may be invoked to reverse convictions in cases where an underlying contract initially defined
the relation of parties such as contract in sale of goods in cases of violation of the Trust Receipts Law.
Novation is not one of the modes of extinguishing criminal liability. The role of novation may only be to
either prevent the rise of criminal liability or to cast doubt on the true nature of the original basic
transaction, whether or not it was such that its breach would not give rise to penal responsibility. The party
invoking novation must prove that the new contract did take effect.
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A contract of insurance is a contract of adhesion, thus, any ambiguity should be resolved against the
insurer, or it should be construed liberally in favor of the insured and strictly against the insurer.
Limitations of liability should be regarded with extreme jealousy and must be construed in such a way as to
preclude the insurer from non-compliance with its obligations. (DBP Pool of Accredited Insurance Co., vs.
Radio Mindanao Network Inc., GR no. 147039, January 27, 2006)
MALAYAN INSURANCE CORPORATION, petitioner, vs. THE HON. COURT OF APPEALS and TKC
MARKETING CORPORATION, respondents. (G.R. No. 119599. March 20, 1997)
Through the years, the courts have held that in these type of contracts, the parties do not bargain on equal
footing, the weaker party's participation being reduced to the alternative to take it or leave it. Thus, these
contracts are viewed as traps for the weaker party whom the courts of justice must protect. Consequently,
any ambiguity therein is resolved against the insurer, or construed liberally in favor of the insured.
While it is to be liberally construed in favor of the insured, like other contracts, it must be construed
according to the sense and meaning of the terms which the parties themselves have used. If such terms are
clear and unambiguous, they must be taken and understood in their plain, ordinary and popular sense.
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Contracts of insurance are contracts of indemnity upon the terms and conditions specified in the policy. The
parties have the right to impose such reasonable conditions at the time of the making of the contract as
they may deem wise and necessary.
The agreement has the force of law between the parties. The terms of the policy constitute the measure of
the insurer’s liability, and in order to recover, the insured must show himself within those terms.
If the insured cannot comply with the terms and conditions of the contract, he is not entitled as a rule to
recover the loss or damage suffered. This is a condition precedent to the right to recovery.
Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the
terms which the parties themselves have used. If such terms are clear and unambiguous, they must be
taken and understood in their plain, ordinary and popular sense. Accordingly, in interpreting the exclusions
in an insurance contract, the terms used specifying the excluded classes therein are to be given their
meaning as understood in common speech. A contract of insurance is a contract of adhesion. So, when the
terms of the insurance contract contain limitations on liability, courts should construe them in such a way as
to preclude the insurer from non-compliance with his obligation. (Alpha Insurance and Surety Co. vs.
Castor, GR No. 198174, September 2, 2013)
Public Enemy
FILIPINAS COMPAÑIA DE SEGUROS, petitioner, vs. CHRISTERN, HUENEFELD & CO., INC.,
respondent. (G.R. No. L-2294. May 25, 1951)
There is no question that majority of the stockholders of the respondent corporation were German subjects.
This being so, we have to rule that said respondent became an enemy corporation upon the outbreak of the
war between the United States and Germany.
Cestui Que Vie – Person on whose life the insurance is written.
Beneficiary – Person designated to receive the proceeds of the policy when the risk attaches.
Kinds of Beneficiary
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1 Insured himself
2 Third Person who paid consideration
- Third person through mere bounty of insured
SECTION 11. The insured shall have the right to change the beneficiary he designated in
the policy unless he has expressly waived this right in said policy.
SECTION 12. The interest of a beneficiary in a life insurance policy shall be forfeited when
the beneficiary is the principal, accomplice, or accessory in willfully bringing about the death
of the insured; in which event, the nearest relative of the insured shall receive the proceeds
of said insurance if not otherwise.
Beneficiary acquires a vested right in the policy.
SECTION 181. A policy of insurance upon life or health may pass by transfer, will or succession to any
person, whether he has an insurable interest or not, and such person may recover upon it whatever the
insured might have recovered.
Note Articles 43 (4), 50 and 64 of the Family Code – Innocent spouse may revoke the designation of the
other spouse who acted in bad faith as beneficiary, even if such designation be stipulated as irrevocable.
Rules in case beneficiary predeceases insured
Irrevocable designation of Beneficiary – Beneficiary has acquired vested right; Legal representatives
are entitled to the proceeds as assets of his estate; Unless, the proceeds were made payable to the
beneficiary only if living.
Revocable – Proceeds past to the estate of the insured
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All rights, title and interest in the policy of insurance taken out by an original owner on the life or health of
a minor shall automatically vest in the minor upon the death of the original owner, unless otherwise
provided for in the policy.
SECTION 10. Every person has an insurable interest in the life and health:
(a.) Of himself, of his spouse and of his children;
(b.) Of any person on whom he depends wholly or in part for education or support, or in whom he has
a pecuniary interest;
(c.) Of any person under a legal obligation to him for the payment of money, or respecting property or
services, of which death or illness might delay or prevent the performance; and
(d.) Of any person upon whose life any estate or interest vested in him depends.
An insurable interest is one of the most basic and essential requirements in an insurance contract. In
general, an insurable interest is that interest which a person is deemed to have in the subject
matter insured, where he has a relation or connection with or concern in it, such that the
person will derive pecuniary benefit or advantage from the preservation of the subject matter
insured and will suffer pecuniary loss or damage from its destruction, termination, or injury by
the happening of the event insured against.
3. The existence of an insurable interest gives a person the legal right to insure the subject matter of the
policy of insurance. Section 10 of the Insurance Code indeed provides that every person has an
insurable interest in his own life. Section 19 of the same code also states that an interest in the life or
health of a person insured must exist when the insurance takes effect but need not exist thereafter or
when the loss occurs.
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Insurable Interest in Life
General Rule : Must exist when the insurance takes effect, but need not exist thereafter or when the loss
occurs. (section 19, Insurance Code)
Exceptions:
1. When the insurance is taken by the creditor on the life of the debtor, the creditor is required to have
insurable interest not only at the contract but also at the time of the debtor’s death.
2. When the insurance is taken by the employer on the life of the employee.
Insurable Interest in Property
SECTION 13. Every interest in property, whether real or personal, or any relation thereto, or liability
in respect thereof, of such nature that a contemplated peril might directly damnify the insured, is an
insurable interest.
SECTION 14. An insurable interest in property may consist in:
(a.) An existing interest;
(b.) An inchoate interest founded on an existing interest; or
(c.)An expectancy, coupled with an existing interest in that out of which the expectancy arises.
SECTION 15. A carrier or depository of any kind has an insurable interest in a thing held by him as such,
to the extent of his liability but not to exceed the value thereof.
SECTION 16. A mere contingent or expectant interest in anything, not founded on an actual right to the
thing, nor upon any valid contract for it, is not insurable.
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SECTION 17. The measure of an insurable interest in property is the extent to which the
insured might be damnified by loss or injury thereof.
SECTION 18. No contract or policy of insurance on property shall be enforceable except for the benefit of
some person having an insurable interest in the property insured.
SECTION 19. An interest in property insured must exist when the insurance takes effect, and when the
loss occurs, but need not exist in the meantime; and interest in the life or health of a person insured must
exist when the insurance takes effect but need not exist thereafter or when the loss occurs.
• Existing Interest – May be legal title or equitable title (e.g. Trustee / Mortgagor / Lessor / Mortgagee)
• Inchoate Interest - Stockholder’s inchoate interest in properties of the corporation
Inchoate – a legal right or entitlement that is only partial and incomplete, which may later develop into a full
property right.
Change of Interest
Sections 20 – 24, Insurance Code
Rules when insurable interest changes during the course of an insurance policy
What may be transferred or assigned:
1. Thing insured (section 20)
2. The Policy itself (section 58)
3. The claim itself (section 83)
SECTION 20. Except in the cases specified in the next four sections, and in the cases of life, accident, and
health insurance, a change of interest in any part of a thing insured unaccompanied by a corresponding
change of interest in the insurance, suspends the insurance to an equivalent extent, until the interest in the
thing and the interest in the insurance are vested in the same person.
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SECTION 21. A change in interest in a thing insured, after the occurrence of an injury which results in a
loss, does not affect the right of the insured to indemnity for the loss.
Doctrine of Subrogation in Insurance
Subrogation is the substitution of one person by another with reference to a lawful claim or right, so that he
who is substituted succeeds to the rights of the other in relation to a debt or claim, including its remedies or
securities. This principle covers a situation wherein an insurer has paid a loss under the insurance policy is
entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss
covered by the policy. It contemplates full substitution such that it places the party subrogated in the shoes
of the creditor, and he may use all means that the creditor could employ to enforce payment. Payment by
the insurer to the insured operates as an equitable assignment to the insurer of all the remedies that the
insured may have against the third party whose negligence or wrongful act caused the loss. (Keppel Cebu
Shipyard Inc.., vs. Pioneer Insurance and Surety Corporation, GR no. 180880-81, September 25, 2009)
EXCEPTION
SECTION 48 (2nd paragraph)
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After a policy of life insurance made payable on the death of the insured shall have been in force during the
lifetime of the insured for a period of two years from the date of its issue or of its last reinstatement, the
insurer cannot prove that the policy is void ab initio or is rescindable by reason of the fraudulent
concealment or misrepresentation of the insured or his agent.
Incontestability clause
The so-called "incontestability clause" precludes the insurer from raising the defenses of false
representations or concealment of material facts insofar as health and previous diseases are concerned if
the insurance has been in force for at least two years during the insured's lifetime.
Emilio Tan vs. Court of Appeals (G.R. No. 48049, June 29, 1989)
The "Incontestability Clause" under Section 48 of the Insurance Code provides that an insurer is given two
years – from the effectivity of a life insurance contract and while the insured is alive – to discover or prove
that the policy is void ab initio or is rescindable by reason of the fraudulent concealment or
misrepresentation of the insured or his agent. After the two-year period lapses, or when the insured dies
within the period, the insurer must make good on the policy, even though the policy was obtained by fraud,
concealment, or misrepresentation.
Manila Bankers Life Insurance Corporation vs. Cresencia P. Aban (G.R. No. 175666, July 29, 2013)
Under Section 227 (j) of Insurance Code
The policyholder shall be entitled to have the policy reinstated at any time within three years from the date
of default of premium payment unless the cash surrender value has been duly paid, or the extension period
has expired, upon production of evidence of insurability satisfactory to the company and upon payment of
all overdue premiums and any indebtedness to the company upon said policy, with interest rate not
exceeding that which would have been applicable to said premiums and indebtedness in the policy years
prior to reinstatement.
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Warranties
A statement in the policy, part of the contract, a condition on which the contract depends and is
conclusively presumed material, it is the essence of warranty that its breach bars recovery even though the
breach has nothing to do with the loss. (sections 67 to 76, Insurance Code)
SECTION 67. A warranty is either expressed or implied.
SECTION 68. A warranty may relate to the past, the present, the future, or to any or all of these.
SECTION 69. No particular form of words is necessary to create a warranty.
SECTION 70. Without prejudice to section fifty-one, every express warranty, made at or before the
execution of a policy, must be contained in the policy itself, or in another instrument signed by the insured
and referred to in the policy as making a part of it.
SECTION 71. A statement in a policy of matter relating to the person or thing insured, or to the risk, as a
fact, is an express warranty thereof.
SECTION 72. A statement in a policy, which imparts that it is intended to do or not to do a thing which
materially affects the risk, is a warranty that such act or omission shall take place.
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GUILLER B. ASIDO, Ll.M.
Losses, Claims and Proceeds
SECTION 83. An agreement not to transfer the claim of the insured against the insurer after the loss has
happened, is void if made before the loss except as otherwise provided in the case of life insurance.
SECTION 80. If a peril insured against has existed, and the insurer has been liable for any period, however
short, the insured is not entitled to return of premiums, so far as that particular risk is concerned.
Under section 75, the insurer is given the right to insert terms and conditions in the policy which if violated
would avoid it. An alteration made in the use or condition of the thing insured will thus avoid a policy under
the same section if such alteration is expressly prohibited altough it does not increase the risk.
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GUILLER B. ASIDO, Ll.M.
Rule on pledge, hypothecate or transfer fire policy
As a rule, after a loss has occured, insured may pledge, hypothecate or transfer a fire insurance policy or
rights thereunder. This he may even do so even without the consent of or notice to the insurer. In such case,
it is not the personal contract which is being assigned, but a claim under or a right of action on the policy
against the insurer.
This rule however is subject to the provisions of Section 173 of the Insurance Code.
No policy of fire insurance shall be pledged, hyothecated, or transferred to any person, firm or company
who acts as agent for or otherwise represents the issuing company, and any such pledge, hypothecation, or
transfer hereacter made shall be void and of no effect insofar as it may affect other creditors of the insured.
(section 173, Insurance Code)
OPTION TO REBUILD CLAUSE
Section 172 of the Insurance Code.
Insurer may have the option to reinstate or replace the property damaged or destroyed any part thereof,
instead of paying the amount of the loss or damage.
Reserved by the insurer in order to protect himself from unfairness in the appraisal and award rendered
by arbitrators, in case of loss.
This option must be exercised within a stipulated period or within a reasonable time.
CASUALTY INSURANCE
Section 174, Insurance Code
Casualty Insurance includes all forms of insurance against loss or liability arising from accident or mishap
which are not within the scope of other types of insurance, namely: marine, fire, surety, ship and life.
Example : Robbery and theft insurance, accident insurance
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Liability Insurance is a contract of indemnity for the benefit of the insured and those in privity with him, or
those to whom the law upon the grounds of public policy extends the indemnity against liability
Includes therfore any loss or damage when an accident is the cause of loss
The terms 'accident' and 'accidental', as used in insurance contracts have not acquired any technical
meaning and are construed by the courts in their ordinary and common acceptation. Thus, the terms have
been taken to mean that which happen by chance or fortuitously, without intention and design, and which is
unexpected, unusual, and unforeseen. An accident is an event that takes place without one's foresight or
expectation — an event that proceeds from an unknown cause or is an unusual effect of a known cause and,
therefore, not expected." [G.R. No. 100970. September 2, 1992.] FINMAN GENERAL ASSURANCE
CORPORATION, petitioner, vs. THE HONORABLE COURT OF APPEALS and JULIA SURPOSA, respondents.]
There is no accident when a deliberate act is performed unless some additional, unexpected,
independent, and unforeseen happening occurs which produces or brings about the result of injury or death.
In other words, where the death or injury is not the natural or probable result of the insured's voluntary act,
or if something unforeseen occurs in the doing of the act which produces the injury, the resulting death is
within the protection of the policies insuring against death or injury from accident." [De la Cruz vs. Capital
Insurance & Surety Co., Inc., 17 SCRA 559 (1966)].
2. Third Party Liability – Insurance against specified perils which may give rise to liability on the part of the
insured for claims for injuries or damage to property of others.
a. Insurance against specified perils which may affect the person and/or property of the insured
b. Insurance against specified perils which may give rise to liability on the part of the insured for claims
for injuries to others or damage to their property.
The insurable interest is to be found in the interest of the insured has in the safety of the person or property
who may maintain, or in the freedom from damage of property which may become the basis of suits against
him in case of their injury or destruction.
The insurable interest does not depend upon whether the insured has a legal or equitable interest in
property but upon whether he may be charged at law with liability against which insurance is taken out.
Attaches when the liability of the insured attaches, regardless of actual loss at that time.
The right of the person injured to sue the insurer of the party at fault (insured) depends on whether the
contract of insurance is intended to benefit third persons also or only the insured.
1. Where the contract provides for indemnity against liability to third persons, then third persons to whom
the insured is liable, can sue the insurer.
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GUILLER B. ASIDO, Ll.M.
2. Where the contract is for indemnity against actual loss or payment then third persons cannot proceed
against the insurer , the contract being solely to reimburse the insured for liability actually discharged by
him through payment to third persons, said third person’s recourse being limited to the insured alone.
The injured for whom the contract of insurance is intended can sue directly the insurer. The general
purpose of statutes enabling an injured person to proceed directly against the insurer is to
protect injured persons against the insolvency of the insured who causes such injury, and to
give such injured person a certain beneficial interest in the proceeds of the policy, and statutes
are to be liberally construed so that their intended purpose may be accomplished. It has even
been held that such a provision creates a contractual relation which inures to the benefit of any and every
person who may be negligently injured by the named insured as if such injured person were specifically
named in the policy. (S 449 7 Am. Jur., 2d, pp. 118-119)
SECTION 374. It shall be unlawful for any land transportation operator or owner of a motor vehicle to
operate the same in the public highways unless there is in force in relation thereto a policy of insurance or
guarantee in cash or surety bond issued in accordance with the provisions of this chapter.
SECTION 375. The Commissioner shall furnish the Land Transportation Commissioner with a list of
insurance companies authorized to issue the policy of insurance or surety bond required by this chapter.
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SECTION 376. The Land Transportation Commission shall not allow the registration or renewal of
registration of any motor vehicle without first requiring from the land transportation operator or motor
vehicle owner concerned the presentation and filing of a substantiating documentation in a form approved
by the Commissioner evidencing that the policy of insurance or guaranty in cash or surety bond required by
this chapter is in effect.
[G.R. No. 60506. August 6, 1992.] FIGURACION VDA. DE MAGLANA, EDITHA M. CRUZ, ERLINDA M.
MASESAR, LEONILA M. MALLARI, GILDA ANTONIO and the minors LEAH, LOPE, JR., and ELVIRA,
all surnamed MAGLANA, herein represented by their mother, FIGURACION VDA. DE MAGLANA,
petitioners, vs. HONORABLE FRANCISCO Z. CONSOLACION, Presiding Judge of Davao City,
Branch II, and AFISCO INSURANCE CORPORATION, respondents.
ISSUE: WHEN DOES THE INSURER’S LIABILITY IN A COMPREHENSIVE MOTOR VEHICLE LIABILITY INSURANCE
ACCRUE?
"[W]here an insurance policy insures directly against liability, the insurer's liability accrues immediately
upon the occurrence of the injury or event upon which the liability depends and does not depend on the
recovery of judgment by the injured party against the insured. The underlying reason behind the third-party
liability (TPL) of the Compulsory Motor Vehicle Liability Insurance is "to protect injured persons against the
insolvency of the insured who causes such injury, and to give such injured person a certain beneficial
interest in the proceeds of the policy..." (Shafer vs. Judge, RTC of Olongapo City, Br. 75, G.R. No. 78848, Nov.
14, 1988, 167 SCRA 386, 391)
Insured is required to pay a certain fixed premium annually or at more frequent intervals throughout
life and the beneficiary is entitled to receive payment under the policy only after the death of the insured
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GUILLER B. ASIDO, Ll.M.
Also known as “whole life, regular life, or straight life policy.”
4. Endowment Policy
Insurer binds himself to pay a fixed sum to the insured if he survives for a specified period, or if he dies
within such period, to some other person indicated.
Scope of Life Insurance
(1.) Life Insurance
(a.) Actual death
(b.) Living Death
(c.)Retirement Death
(2.) Health Insurance – When health insurance is written by life insurers, injury or illness are also viewed as
casualties.
Contract of Life Annuity
Refer to Article 2021, Civil Code
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GUILLER B. ASIDO, Ll.M.
By the aleatory contract of life annuity, the debtor binds himself to pay an annual pension or income
during the life of one or more determinate persons in consideration of a capital consisting of money or other
property, whose ownership is transferred to him at once with the burden of the income.
MARINE INSURANCE
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GUILLER B. ASIDO, Ll.M.
Ship Owner
Cargo Owner
Charterer
Owner/Debtor
Creditor/Lender
Insurable Interest in Marine Insurance
Ship Owner
Over the vessel to the extent of its value, provided that if chartered, the recovery is only up to the amount
not recoverable from the charterer
He also has insurable interest on the expected freightage (section 103)
No insurable interest if he will be compensated by charterer for the value of the vessel, in case of loss.
Cargo Owner
Over the cargo and expected profits (section 105)
Creditor/Lender
Amount of the Loan
Only Perils of the Sea, unless in case of an All Risk Policy where perils of the ship are
covered as well.
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GUILLER B. ASIDO, Ll.M.
2. Extraordinary action of the wind and wave 3. Negligent failure of the ship’s owner to
provide the vessel with the proper equipment to
3. Other extraordinary causes connected with convey the cargo under ordinary conditions
navigation
OTHER
MARINE
ITEM PROPERTY
INSURANCE
INSURANCE
The
The information or
information belief of a 3rd
or the belief party is not
or expection material and
of 3rd need not be
Informatio
persons in communicate
n of 3rd
reference to d unless it
persons
a material proceeds from
fact is an agent of
material and the insured
must be whose duty is
concealed. to give
information
The
concealment
of any fact
in relation to
any of the
Concealment
matters
of any
stated in
material fact
section 110
will vitiate the
Effect of does not
entire
concealme vitiate the
contract,
nt entire
whether the
contract but
loss results
merely
from the risk
exonerates
concealed
the insurer
from a risk
resulting
from the fact
concealed
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GUILLER B. ASIDO, Ll.M.
Implied Warranties
1. Seaworthiness of the ship
2. Against improper deviation
3. Against illegal venture
4. Warranty of neutrality
5. Presence of insurable interest
Seaworthiness
- ship’s fitness to perform the service and to encounter
the ordinary perils of the voyage, contemplated by the
parties to the policy.
General Rule on Seaworthiness
The warranty of seaworthiness is complied with if the
ship be seaworthy at the time of the commencement of
the risk. Prior or subsequent unseaworthiness is not a
breach of the warranty nor is it material that the vessel
arrives in safety at the end of her voyage.
Ex ceptions to the General Rule on seaworthiness :
1. In case of Time Policy , the ship must be seaworthy
at the commencement of every voyage she may
undertake during the period of the coverage;
2. In the case of Cargo Policy, each vessel upon which
the cargo is shipped or transhipped must be seaworthy
at the commencement of each particular voyage;
3. In the case of Voyage Policy, contemplating a
voyage at different stages, the ship must be seaworthy
at the commencement of each stage of the voyage
Deviation
Departure from the course of the voyage insured,
or an unreasonable delay in pursuing the voyage or, the
commencement of an entirely diffrerent voyage. (section
123)
Instances of Deviation
1.Deviation from the agreed voyage;
2. Departure of vessel from the course of the sailing
fixed by mercantile usage;
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GUILLER B. ASIDO, Ll.M.
3. Departure of vessel from the most natural, direct and
advantegous route if not fixed by mercantile usage
4. Unreasonable delay in pursuing the voyage;
5. Commencement of an entirely different voyage.
(sections 121-123, Insurance Code)
Proper Deviation
When caused by circumstances outside the control of
the ship captain or ship owner
When necessary to comply with a warranty or to avoid
a peril (REAL PERIL)
When made in good faith to avoid a peril (NON-
EXISTING/ASSUMED PERIL)
When made in good faith to save human life or to
relieve another vessel in distress (section 124)
Effect - In case of loss, the insurer is liable.
Improper Deviation
Every deviation not specified in Section 124
Effect – In case of loss or damage subsequent to an
improper deviation, the insurer is not liable. (section
124)
Loss
Rules in case of Loss
A. Total
1. Actual
1.1. Total Destruction;
1.2. Irretrievable loss by sinking or being broken up;
1.3. Damage rendering the thing valueless to the owner
for the purpose for which he held it; or
1.4. Other event which effectively deprives the owner of
the possession, at the port of destination, of the thing
insured.
2. Constructive
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GUILLER B. ASIDO, Ll.M.
2.1. Actual loss of more than ¾ of the value of the
object;
2.2. Damage reducing, by more than ¾ of the value of
the vessel and of the cargo; and
2.3. Expense of the transshipment exceeds ¾ of the
value of the cargo.
B. Partial – that which is not total (section 128)
INTRA-CORPORATE CONTROVERSY
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GUILLER B. ASIDO, Ll.M.
To determine whether a case involves an intra-
corporate controversy to be heard and decided by
the RTC, two elements must concur:
1. the status or relationship of the parties and
2. the nature of the question that is subject of their
controversy.
The first element requires that the controversy must
arise out of intra-corporate or partnership relations: (a)
between any or all of the parties and the corporation,
partnership or association of which they are
stockholders, members or associates; (b) between any
or all of them and the corporation, partnership or
association of which they are stockholders, members or
associates and (c) between such corporation,
partnership or association and the State insofar as it
concerns their individual franchises. On the other hand,
the second element requires that the dispute among the
parties be intrinsically connected with the regulation of
the corporation. 15 If the nature of the controversy
involves matters that are purely civil in character,
necessarily, the case does not involve an intra-corporate
controversy.
Eustacio Atwel, et al. vs. Concepcion Progressive
Ass'n., Inc., (G.R. No. 169370, April 14, 2008)
From the above, it can be said that the SEC's regulatory
authority over private corporations encompasses a wide
margin of areas, touching nearly all of a corporation's
concerns. This authority more vividly springs from the
fact that a corporation owes its existence to the
concession of its corporate franchise from the state.
Under its regulatory responsibilities, the SEC may pass
upon applications for, or may suspend or revoke (after
due notice and hearing), certificates of registration of
corporations, partnerships and associations (excluding
cooperatives, homeowners' association, and labor
unions); compel legal and regulatory compliances;
conduct inspections; and impose fines or other penalties
for violations of the Revised Securities Act, as well as
implementing rules and directives of the SEC, such as
may be warranted.
Wash Sales
To create a false or misleading appearance of active
trading in any listed security traded in an Exchange of
any other trading market (hereafter referred to purposes
of this Chapter as "Exchange"):
(i) By effecting any transaction in such security which
involves no change in the beneficial ownership thereof;
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GUILLER B. ASIDO, Ll.M.
(ii) By entering an order or orders for the purchase or
sale of such security with the knowledge that a
simultaneous order or orders of substantially the same
size, time and price, for the sale or purchase of any such
security, has or will be entered by or for the same or
different parties; or
(iii) By performing similar act where there is no change
in beneficial ownership.
Marking the Close
Also known as “portfolio funding”
The practice of buying a security at the very end of
the trading day at a significantly higher price than the
current price of the security. The purpose of the practice
of marking the close is to raise the closing price of the
security, making it appear to be higher-valued than it
actually is.
Painting the Tape
The illegal practice in which traders buy and sell a
specific security among themselves, creating the illusion
of high trading volume and significant investor interest,
which can attract unsuspecting investors who might
then buy the stock and enable the traders to profit.
Squeezing the float
Squeezing the float – Taking advantage of a shortage
of securities in the market by controlling the demand
side and exploiting market congestion during such
shortages in a way as to create artificial prices;
Also known as “Pump and Dump”
Pump and dump is a form of stock fraud in which
people artificially inflate the price of stock in order to
profit.
Who is an insider?
Someone who has access to material, nonpublic
information about the security.
The intent of the law is the protection of investors
against fraud, committed when an insider, using secret
information, takes advantage of an uninformed investor.
Insiders are obligated to disclose material information to
the other party or abstain from trading the shares of his
corporation. This duty to disclose or abstain is based on
two factors: first, the existence of a relationship giving
access, directly or indirectly, to information intended to
be available only for a corporate purpose and not for the
personal benefit of anyone; and second, the inherent
unfairness involved when a party takes advantage of
such information knowing it is unavailable to those with
whom he is dealing.
Defense of an Insider:
The first is the Howey test, which traces its roots to the
SEC v. W.J. Howey Co. (328 US 293 [1946]) case in the
United States. The decision held that a contract,
transaction or scheme is an investment contract where a
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GUILLER B. ASIDO, Ll.M.
person (a) invests his money (b) in a common enterprise
(c) with an expectation of profits (d) solely from the
efforts of others.
Debtor-Creditor Relationship
Fiduciary Duty
Not a trust agreement
Indispensable Institution
Impressed with public interest
Not expected to be infallible
Primary Liability
Highest Degree of Responsibility
Respondeat Superior
Negligence of Manager
Negligence of Officers
Negligence of Tellers
Right to recover from employees
Liability for Damages
Governance of BSP
Monetary Stabilization
Classification of Banks
Rural Banks
Cooperative Banks
Universal Banks
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GUILLER B. ASIDO, Ll.M.
1. Licensed by the BSP to do both commercial and
investment bankingAuthority to exercise:
2.Powers authorized for a commercial bank
3.Powers of an investment house as provided in existing
laws
4.Power to invest in non-allied enterprises
UB KB
Has additional power No such power. Only
other than those such powers as are
authorized for necessary to carry on
commercial banks, the business of
including the power of banking.
an investment house
and the power to
invest in non-allied
enterprises
May invest in equities May only invest in
of allied, whether equities of allied
financial or non- enterprises, whether
financial and non- financial or non-
allied enterprises. financial
Highest capitalization Second highest
requirement minimum capital
(P4.9 B) requirement (P2.4 B)
Organization of Banks
Capabilities
Rules:
Rules on disqualification
Conservatorship in Banks
INSURED DEPOSIT
R.A. No. 9576 stipulates that PDIC will not pay deposit
insurance for the following accounts or transactions:
SPLITTING OF DEPOSITS
Provisional Remedies
On the one hand, Republic Act No. 1405 provides for four
(4) exceptions when records of deposits may be
disclosed. These are under any of the following
instances: a) upon written permission of the depositor,
(b) in cases of impeachment, (c) upon order of a
competent court in the case of bribery or dereliction of
duty of public officials or, (d) when the money deposited
or invested is the subject matter of the litigation, and e)
in cases of violation of the Anti-Money Laundering Act
(AMLA), the Anti-Money Laundering Council (AMLC) may
inquire into a bank account upon order of any competent
court. On the other hand, the lone exception to the non-
disclosure of foreign currency deposits, under Republic
Act No. 6426, is disclosure upon the written permission
of the depositor.
A useful machine
A product or composition
A method or process, or
An improvement of any of the foregoing
Microorganism
Non-biological & microbiological process
1. NOVELTY
2. INVENTIVE STEP
3. INDUSTRIAL APPLICABILITY
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GUILLER B. ASIDO, Ll.M.
Novelty. - An invention shall not be considered new if it
forms part of a prior art. (Sec. 9, R.A. No. 165a)
Non-Patentable Inventions
OWNERSHIP OF PATENT
xxx
Patent Infringement
Doctrine of Equivalents
Legal Basis:
TRADEMARKS
DESCRIPTIVE
MISLEADING
CONTINUING OFFENSE
1
Section 1, Negotiable Instruments Law
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GUILLER B. ASIDO, Ll.M.
5. Where the instrument is addressed to a drawee, he must
be named or otherwise indicated therein with reasonable
certainty.
REQUISITES OF NEGOTIABILITY:
• Requisites
1. It must be in writing
2. It must contain an unconditional promise to
pay a sum certain money
3. It must be payable on demand, or at a fixed or
determinable future time
4. It must be payable to order or to bearer
RULE ON FORGERY:
2
Section 70, Effect of want of demand on principal debtor. – Presentment for payment is not
necessary in order to charge the person primarily liable on the instrument; but if the
instrument is, by its terms, payable at a special place, and he is able and willing to pay it
there at maturity, such ability and willingness are equivalent to tender of payment upon his
part. But except as herein otherwise provided, presentment for payment is necessary in
order to charge the drawer and indorsers.
3
Article 1170. Those who in the performance of their obligations are guilty of fraud,
negligence, or delay, and those who in any manner contravene the tenor thereof, are liable
for damages.
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GUILLER B. ASIDO, Ll.M.
• As a general rule, a bank or corporation who has
obtained possession of a check upon an
unauthorized or forged indorsement of the payee’s
signature and who collects the amount of the check
from the drawee, is liable for the proceeds thereof
to the payee or other owner, notwithstanding that
the amount has been paid to the person from
whom the check was obtained.
• EXCEPTION:
Classes of Holder
1. A holder:
a. May Sue thereon in his own name
b. Payment to him in due course discharges the instrument
(section 88)
2. In the hands of a holder other a HIDC, a negotiable
instrument is subject to the same defenses as if it were
non-negotiable
Defenses
PERSONAL
REAL DEFENSES
DEFENSES
Forgery Duress (intimidation)
Illegality Illegality
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GUILLER B. ASIDO, Ll.M.
Alteration (deliberate) Discharge before
maturity
Discharge after Alteration
maturity (unintentional)
Incompleteness Fraud in inducement
Fraud in Factum Incompleteness
(delivered)
Incapacity No consideration
Insolvency Set-off
Real Defenses
Section 15
Section 23
Section 14 (fraud in factum or fraud in esse
contractus)
Fraudulent alteration by holder (secs.124 and 125)
Prescription; Discharge at or after maturity (secs.88,
118, 121 and 122)
Personal Defenses
Personal Defenses
LIABILITIES OF PARTIES
PARTY LIABILITY
Sec. 60. Liability of maker. - The
maker of a negotiable instrument, by
making it, engages that he will pay it
Maker
according to its tenor, and admits
the existence of the payee and his
then capacity to indorse.
Sec. 61. Liability of drawer. - The
drawer by drawing the instrument
admits the existence of the payee
and his then capacity to indorse; and
engages that, on due presentment,
the instrument will be accepted or
paid, or both, according to its tenor,
and that if it be dishonored and the
Drawer necessary proceedings on dishonor
be duly taken, he will pay the
amount thereof to the holder or to
any subsequent indorser who may
be compelled to pay it. But the
drawer may insert in the instrument
an express stipulation negativing or
limiting his own liability to the
holder.
Acceptor Sec. 62. Liability of acceptor. -
The acceptor, by accepting the
instrument, engages that he will pay
it according to the tenor of his
acceptance and admits:
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NOTES ON MERCANTILE LAW REVIEW 2019
GUILLER B. ASIDO, Ll.M.
a. The existence of the drawer, the
genuineness of his signature, and his
capacity and authority to draw the
instrument; and
b. The existence of the payee and his
Acceptor is liable only to the original tenor of the bill
prior to alteration since section 132 defines acceptance
as “assent to the order of the drawer.”
NOTICE OF DISHONOR
Bringing either verbally or by writing, to the knowledge
of the drawer or endorser of an instrument, the fact that
a specified negotiable instrument, upon proper
proceedings taken, has not been accepted or has not
been paid, and that the party notified is expected to pay
it.
ALTERATION
a. The date;
b. The sum payable, either for principal or interest;
c. The time or place of payment:
d. The number or the relations of the parties;
e. The medium or currency in which payment is to be
made;
f. Or which adds a place of payment where no place of
payment is specified, or any other change or addition
which alters the effect of the instrument in any respect,
is a material alteration
BILL OF EXCHANGE
To: Y
sgd. Z
Definition
Kinds of Checks
4
Section 125. What constitutes material alteration. Any alteration which changes:
a) The date;
xxx
But when the instrument has been materially altered and is in the hands of a holder in due
course not a party to the alteration, he may enforce the payment thereof according to its
original tenor. (Emphasis ours.)
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GUILLER B. ASIDO, Ll.M.
In Areza vs. Express Savings Bank (GR no.176697,
September 10, 2014) , the Supreme Court ruled that, “as
a rule now stands, the 24 hour period is still in force,
that is, any check which should be refused by the
drawee bank in accordance with the long standing and
accepted banking practices shall be returned through
the PCHC/local clearing office, as the case may be not
later than the next regular clearing (24 hour).
CORPORATION CODE
Classifications
- par value
- no par value
Nationality of Corporations
the SEC and the courts are barred from intruding into
business judgments of corporations, when the same are
made in good faith. The said rule precludes the reversal
of the decision of the PSE to deny PALI's listing
application, absent a showing of bad faith on the part of
the PSE
Derivative Suit
Notice Requirement
To give the stockholders knowledge of the intended
sale of shares of stock of the corporation, in order that
they may exercise their preemptive right.
BY LAWS
STOCK TRANSFERS
REGISTRATION IN BOOKS
RIGHT OF INSPECTION
RIGHT OF APPRAISAL
ON CORPORATION LAW
In the case of Forest Hills Golf and Country Club, Inc., vs.
Gardpro (GR no.164686, October 22, 2014), the
Supreme Court had emphasized that the Articles of
Incorporation defines the contractual relationship
between the corporation with its stockholders, the
corporation and the state, and the stockholders and the
state. Hence, they are binding not just on the
corporation but also on the stockholders themselves. On
the other hand, the by-laws are considered to be the
“private statutes” by which the corporation is to be
governed. In construing and applying the provisions of
the articles of incorporation and the by-laws of the
corporation therefore, the plain meaning or literal
meaning rule embodied in Article 1370 of the Civil Code
shall apply.
In Ching vs. Subic Bay Golf and Country Club, Inc., (GR
no.174353, September 10, 2014), the High Court ruled
that a stockholders’ right to institute a derivative suit is
not based on any express provision of the Corporation
Code or even the Securities Regulation Code, but is
impliedly recognized when the said laws make corporate
directors or officers liable for damages suffered by the
corporation and its stockholders for violation of their
fiduciary duties.
Notwithstanding the rejection of the Rehabilitation Plan, the court may confirm the
Rehabilitation Plan if all of the following circumstances are present:
(a)The Rehabilitation Plan complies with the requirements specified in this Act.
(b) The rehabilitation receiver recommends the confirmation of the Rehabilitation Plan;
(c) The shareholders, owners or partners of the juridical debtor lose at least their
controlling interest as a result of the Rehabilitation Plan; and
(d) The Rehabilitation Plan would likely provide the objecting class of creditors with
compensation which has a net present value greater than that which they would have
received if the debtor were under liquidation.
maintains that the court may approve a rehabilitation
plan over the objection of the creditors if, in its
judgment, the rehabilitation of the debtors is feasible
and the opposition of creditors is manifestly
unreasonable. The High Court noted that:
The third prong is the "harm" test. This test requires the
plaintiff to show that the defendant’s control, exerted in
a fraudulent, illegal or otherwise unfair manner toward
it, caused the harm suffered. A causal connection
between the fraudulent conduct committed through the
instrumentality of the subsidiary and the injury suffered
or the damage incurred by the plaintiff should be
established. The plaintiff must prove that, unless the
corporate veil is pierced, it will have been treated
unjustly by the defendant’s exercise of control and
improper use of the corporate form and, thereby, suffer
damages.
Laws Covered
1. Civil Code
2. Warsaw Convention
Philex Mining Corp. vs. CIR, G.R. No. 148187, April 16,
2008
WARSAW CONVENTION
February 9, 1951
CHAPTER I
Scope of Definitions
CHAPTER II
Transportation Documents
SECTION I
Passenger Ticket
SECTION II
Baggage Check
SECTION III
Air Waybill
(2) The first part shall be marked "for the carrier” and
shall be signed by the consignor. The second part shall
be marked "for the consignee"; it shall be signed by the
consignor and by the carrier and shall accompany the
goods. The third part shall be signed by the carrier and
handed by him to the consignor after the goods have
been accepted.
ARTICLE 15. (1) Articles 12, 13, and 14 shall not affect
either the relations of the consignor and the consignee
with each other or the relations of third parties whose
rights are derived either from the consignor or from the
consignee.
CHAPTER III
CHAPTER V
xxx
THIRD DIVISION
[G.R. No. 149547. July 4, 2008.]
PHILIPPINE AIRLINES, INC., petitioner, vs. HON.
ADRIANO SAVILLO, Presiding Judge of RTC Branch
30, Iloilo City, and SIMPLICIO GRIÑO, respondents.
NOTES
This was one of the issues that the Supreme Court had
to address in the case of Loadstar Shipping Company vs.
Malayan Insurance Inc., (GR no.185565, November 26,
2014). In this case, the High Court stated that, “If goods
are rendered useless for sale, consumption, or for the
intended purpose, the consignee may reject the goods
and demand payment of such goods at their market
price on that day pursuant to Article 365 of the Code of
Commerce of the Philippines. In case the damaged
portion of the goods can be segregated from those
delivered in good condition, the consignee may reject
those in damaged condition and accept merely those
which are in good condition. But if the consignee is able
to prove that it is impossible to use those goods which
were delivered in good condition without the others,
then the entire shipment may be rejected.”
xxx
1. Court Supervised
COMMENCEMENT ORDER
Waiver of Taxes
Validity of Contracts
Administration Proceedings
4. Exceptions
FACTS:
ISSUE:
HELD:
Note that the writ will not issue on the basis merely of an
alleged unauthorized access to information about a
person.
LONE ISSUE: