Merc Quamto

QUESTIONS ASKED MORE THAN ONCE IN THE BAR

QuAMTO (1991-2012)

Mercantile Law

A

CADEMICS

C

OMMITTEE

A

LJON

D.

DE

G

UZMAN

C

HAIRPERSON

M

ARK

K

EVIN

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ELLOSA

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ICE

-C

HAIR FOR

A

CADEMICS

S

HARMAGNE

J

OY

A.

B

INAY

V

ICE

-C

HAIR FOR

A

DMINISTRATION AND

F

INANCE

A

NTHONY

M.

R

OBLES

V

ICE

-C

HAIR FOR

L

AYOUT AND

D

ESIGN

C

LARABEL

A

NNE

R.

L

ACSINA

M

EMBER

,

L

AYOUT AND

D

ESIGN

T

EAM

R

AFAEL

L

ORENZ

S

ANTOS

M

EMBER

,

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AYOUT AND

D

ESIGN

T

EAM

J

AMES

B

RYAN

V.

E

STELEYDES

V

ICE

-C

HAIR FOR

R

ESEARCH

RESEARCH COMMITTEE

J

AMES

B

RYAN

V.

E

STELEYDES

R

ESEACH

C

OMMITTEE

H

EAD

M

ARIA

J

AMYKA

S.

F

AMA

A

SST

.

R

ESEARCH

C

OMMITTEE

H

EAD

P

AULINE

B

REISSEE

G

AYLE

D.

A

LCARAZ

M

EMBER

R

OBBIE

B

AÑAGA

M

EMBER

M

ONICA

S.

C

AJUCOM

M

EMBER

D

OMINIC

V

ICTOR

C.

D

E

A

LBAN

M

EMBER

A

NNABELLA

H

ERNANDEZ

M

EMBER

M

A

.

C

RISTINA

M

ANZO

-D

AGUDAG

M

EMBER

W

ILLIAM

R

USSELL

M

ALANG

M

EMBER

C

HARMAINE

P

ANLAQUE

M

EMBER

DISCLAIMER

THE RISK OF USE, MISUSE OR

NON-USE OF THIS BAR REVIEW MATERIAL

SHALL BE BORNE BY THE USER/

NON-USER.

LETTERS OF CREDIT

Q: Explain the nature of Letters of Credit as a financial devise (2012)

A: A letter of credit is a financial device developed by

merchants as a convenient and relatively safe mode of dealing with sales of goods to satisfy the seemingly irreconcilable interests of a seller, who refuses to part with his goods before he is paid, and a buyer, who wants to have control of the goods before paying. The use of credits in commercial transactions serves to reduce the risk of nonpayment of the purchase price under the contract for the sale of goods and to reduce the risk of nonperformance of an obligation in a non-sale setting (Transfield Philippines Inc. vs. Luzon Hydro Corp., November 22, 2004).

Q: Explain the three (3) distinct but intertwined contract relationships that are indispensable in a letter of credit transaction. (2002)

A: The following are the three (3) distinct relationships

arising from a letter of credit:

1. Issuing Bank and the Applicant/Buyer/Importer – The applicant has the obligation to pay what the issuing bank has paid to the beneficiary with the cost and interest on the letter of credit. Their relationship is governed by the terms of the application and agreement for the issuance of letter of credit by the bank.

2. Issuing Bank and the Beneficiary/Seller/Exporter – The issuing bank

is the one who undertakes to pay the beneficiary upon strict compliance of the latter to the requirements set forth in the letter of credit.

3. Applicant and Beneficiary – The applicant is the one who procures the letter of credit and obliges himself to reimburse the issuing bank upon receipt of the documents of title while the beneficiary is the one who, in compliance with the contract of sale, ships the goods to the buyer and delivers the documents of title and draft to the issuing bank to recover payment for the goods. The relationship between them is governed by the law on sales if it is a commercial letter of credit but if it is a stand-by letter of credit it is governed by the law on obligations and contract.

Q: ABC Company filed a Petition for Rehabilitation with the Court. An Order was issued by the Court, (1) staying enforcement of all claims, whether money or otherwise against ABC Company, its guarantors and sureties not solidarily liable with the company; and (2) prohibiting ABC Company from making payments of its liabilities, outstanding as of the date of the filing of the Petition. XYC Company is a holder of an irrevocable Standby Letter of Credit which was previously procured by ABC Company in favor of XYC Company to secure

performance of certain obligations. In the light of the Order issued by the Court, can XYC Company still be able to draw on their irrevocable Standby Letter of Credit when due? Explain your answer. (2012)

A: XYC Company, the beneficiary of the standby letter of

credit, can draw on the letter of credit despite filing of petition for corporate rehabilitation. The liability of the bank that issued the letter of credit is primary and solidary. Being solidary, the claims against them can be pursued separately from and independently of the rehabilitation case (MWSS vs. Daway G.R. No. 142381. October 15, 2003).

Q: X Corporation entered into a contract with PT Construction Corporation for the latter to construct and build a sugar mill within six (6) months. They agreed that in case of delay, PT Construction Corporation will pay X Corporation P100,000 for every day of the delay. To ensure payment of the agreed amount of damages, PT Construction Corp. secured from Atlantic Bank a confirmed and irrevocable letter of credit which was accepted by X Corporation in due time. One week before the expiration of the six (6) month period, PT Construction Corp. requested for an extension of time to deliver claiming that the delay was due to the fault of X Corporation. A controversy as to the cause of delay which involved the workmanship of the building ensued. The controversy remained unsolved. Despite the controversy, X Corporation presented a claim against Atlantic Bank by executing a draft against the letter of credit.

1. Can Atlantic Bank refuse payment due to the unresolved controversy? Explain.

2. Can X Corporation claim directly from PT Construction Corp.? Explain. (2008)

A:

1. Altantic Bank cannot refuse to pay X Corporation. This is because of the Doctrine of Independence which provides that the obligation of the issuing bank to pay the beneficiary does not depend on the fulfillment or non-fulfillment of the contract supporting the letter of credit. The only instance where Atlantic Bank can refuse payment is when X Corporation wasn’t able to strictly comply with the conditions set forth in the letter of credit. 2. X Corporation may directly claim from PT

Construction Corporation. A letter of credit by itself does not come into operation without a contract supporting it. It is not a contract that can stand on its own, it needs a supporting contract. It is merely an alternative recourse and does not in any way prevent the beneficiary from directly claiming from the applicant (Transfield Phils. Inc. vs. Luzon Hydro Corporation, G.R. No. 146717, Nov 22, 2004)

Q: BV agreed to sell to AC, a Ship and Merchandise Broker, 2500 cubic meters of logs at $27 per cubic meter

FOB. After inspecting the logs, CD issued a purchase order.

On the arrangements made upon instruction of the consignee, H &T Corporation of LA, California, the SP Bank of LA issued an irrevocable letter of credit available at sight in favor for the total purchase price of the logs. The letter of credit was mailed to FE Bank with the instruction “to forward it to the beneficiary”. The letter of credit provided that the draft to be drawn is on SP Bank and that it be accompanied by, among other things, a certification from AC, stating that the logs have been approved prior shipment in accordance with the terms and conditions of the purchase order.

Before loading on the vessel chartered by AC, the logs were inspected by custom inspectors and representatives of the Bureau of Forestry, who certified to the good condition and exportability of the logs. After loading was completed, the Chief Mate of the vessel issued a mate receipt of the cargo which stated that the logs are in good condition. However, AC refused to issue the required certification in the letter of credit. Because of the absence of certification, FE Bank refused to advance payment on the letter of credit.

1. May FE Bank be held liable under the letter of credit? Explain

2. Under the facts above, the seller, BV, argued that FE Bank, by accepting the obligation to notify him that the irrevocable letter of credit has been transmitted to it on his behalf, has confirmed the letter of credit. Consequently, FE Bank is liable under the letter of credit. Is the argument tenable? Explain. (1993)

A:

1. FE Bank cannot be held liable under the letter of credit since the certificate is not issued by BV. It is a settled rule in commercial transactions involving letters of credit that the documents tendered must strictly conform to the terms of the letter of credit. The tender of documents by the beneficiary (seller) must include all documents required by the letter. A correspondent bank which departs from what has been stipulated under the letter of credit, as when it accepts a faulty tender, acts on its own risks and it may not thereafter be able to recover from the buyer or the issuing bank, as the case may be, the money thus paid to the beneficiary Thus the rule of strict compliance (Feati Bank and Trust Company vs. Court of Appeals, G.R. No. 94209, April 30, 1991)

2. The argument made by BV is untenable. The FE Bank in this case is only a notifying bank and not a confirming bank. It is tasked only to notify and/or transmit the required documents and its obligation ends there. It is not privy to the contract between the parties, its relationship is only with that of the issuing bank and not with the beneficiary to whom he assumes no liability.

TRUST RECEIPTS

Q: C contracted D to renovate his commercial building. D ordered construction materials from E and received delivery thereof. The following day, C went to F Bank to apply for a loan to pay the construction materials. As security for the loan, C was made to execute a trust receipt. One year later, after C failed to pay the balance on the loan, F Bank charged with violation of the Trust Receipts Law.

1. What is a Trust Receipt?

2. Will the case against C prosper? Reason briefly (2007)

A:

1. A trust receipt is a written or printed document signed by the entrustee in favor of the entruster containing terms and conditions substantially complying with the provision of PD 115 whereby the bank as entruster releases the goods to the possession of the entrustee but retain ownership thereof while the entrustee may sell the goods and apply the proceeds for the full payment of his liability to the bank (Sec. 3 (j), Trust Receipts Law).

2. The case of estafa against C will not prosper. The transaction was not a trust receipt arrangement but a loan since the materials were already in possession of C when he applied for loan secured by a trust receipt agreement with F Bank. In order to constitute a trust receipt transaction, the entruster bank should have financed the acquisition of the materials and not to finance it after ownership has already transferred to C. (Colinares v. Court of Appeals)

Note: PD 115 does not apply if the proceeds of

the loan are used to renovate a commercial building. Trust receipts transactions are intended to aid in financing importers and retail dealers who do not have sufficient funds or resources to finance the importation or purchase of merchandise, and who may not be able to acquire credit except through utilization, as collateral, of the merchandise imported or purchased. The transactions contemplated under the Trust Receipts Law mainly involved

acquisition of goods for the sale thereof. The

transaction is properly called a simple loan with the trust receipt merely as a collateral or security for the loan (Ng vs. People G.R. No. 173905, April 23, 2010 citing Samo vs. People, G.R. No. L-17603-04, May 31, 1962; Consolidated Bank and Trust Corporation vs. Court of Appeals, 356 SCRA 671)

Q: What acts or omissions are penalized under the Trust Receipts Law? (2006)

A: Sec. 13 of P.D. 115, Trust Receipts Law, provides that

the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa.

Q: Is lack of intent to defraud a bar to the prosecution of these acts or omissions? (2006)

A: No. Lack of intent to defraud is immaterial to the

prosecution for estafa under Trust Receipts Law. The mere failure to account or to return gives rise the crime which is a malum prohibitum.

Q: Tom Cruz obtained a loan of P1M from XYZ Bank to finance his purchase of 5,000 bags of fertilizer. He executed a trust receipt in favor of XYZ Bank over the 5,000 bags of fertilizer. Tom Cruz withdrew the 5,000 bags from the warehouse to be transported to Lucena City where his store is located. On the way, armed robbers took from Tom Cruz the 5,000 bags of fertilizer. Tom Cruz now claims that his obligation to pay the loan to XYZ Bank is extinguished because the loss was not due to his fault. Is Tom Cruz correct? Explain. (2008) A: Tom Cruz is not correct in contending that his

obligation to pay the loan to XYZ Bank is extinguished. Sec. 10 of P.D. 115, Trust Receipts Law, provides that the 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. Therefore, the entrustee cannot be relieved of their obligation to pay the loan in favor the bank.

Q: CCC Car, Inc. obtained a loan from BBB Bank, which fund was used to import ten (10) units of Mercedes Benz S class vehicles. Upon arrival of the vehicles and before release of said vehicles to CCC Car, Inc., X and Y, the President and Treasurer, respectively, of CCC Car, Inc. signed the Trust Receipt to cover the value of the ten (10) units of Mercedes Benz S class vehicles after which, the vehicles were all delivered to the Car display room of CCC Car, Inc. Sale of the vehicles were slow, and it took a month to dispose of the ten (10) units. CCC Car, Inc. wanted to be in business and to save on various documentations required by the bank, decided that instead of turning over the proceeds of the sales, CCC Car, Inc. used the proceeds to buy another ten (10) units of BMW 3 series.

Is the action of CCC Car, Inc. legally justified? Explain your answer. (2012)

A: No. It is the obligation of the entrustee, CCC Car, Inc.

to receive the proceeds of the sale of the goods covered by the trust receipts in trust for the entruster and to turn over the same to him to the extent of the obligation (Sec. 4, Trust Receipts Law)

Q: Will the corporate officers of CCC Car, Inc. be held liable under the circumstances? Explain your answer. (2012)

A: Yes. Failure of the entrustee to turn over the proceeds

of the sale of the goods shall constitute the crime of estafa. If the violation is committed by a juridical entity, the penalty shall be imposed upon the directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense. Hence, the corporate officers are criminally liable for the violation of the law being the human agent responsible for the same. (Sec. 13, Trust Receipts Law)

WAREHOUSE RECEIPTS LAW

Q: Alex deposited goods for which Billy, warehouseman, issued a negotiable warehouse receipt wherein the goods were deliverable to Alex or order. Alex negotiated the receipt to Caloy. Thereafter, Dario, a creditor secured judgment against Alex and served notice of levy over the goods on the warehouseman

1. To whom should the warehouseman deliver goods upon demand?

2. Would you answer be the same if the warehouseman issued a non-negotiable warehouse receipt? (2007)

A:

1. Billy should deliver the goods to Caloy. Under the Warehouse Receipts Act, the goods covered by the negotiable receipt cannot be attached or levied upon directly by the creditor. The creditor must resort to attaching or levying the receipt itself, not the goods, while in the possession of the debtor, Alex. Since Alex has already negotiated it to Caloy, Dario cannot anymore attach or levy the goods under the warehouse receipt.

2. A non-negotiable warehouse receipt is transferred thru simple assignment. Pending notification to the warehouseman of said assignment, the rights of the assignee may be defeated by a judgment creditor. However, once the warehouseman was already notified of the assignment, the rights of the assignee become superior to that of a judgment creditor.

Q: Jojo deposited several cartons of goods with SN Warehouse Corporation. The corresponding warehouse receipt was issued to the order of Jojo. He endorsed the warehouse receipt to EJ who paid the value of goods deposited. Before EJ could withdraw the goods, Melchor informed SN Warehouse Corporation that the goods belonged to him and were taken by Jojo without his consent. Melchor wants to get the goods, but EJ also wants to withdraw the same.

1. Who has a better right to the goods? Why? 2. If SN Warehouse Corporation is uncertain as to

proper recourse of the corporation? Explain. (2005)

A:

1. EJ has better right to the goods. The goods are covered by a negotiable warehouse receipt which was indorsed to EJ for value. The negotiation to EJ was not impaired by the fact that Jojo took the goods without the consent of Melchor, as EJ had no notice of such fact. Moreover, EJ is in possession of the warehouse receipt and only he can surrender it to the warehouseman (Sec. 8, Warehouse Receipts Law).

2. Under the Sec. 17 of Act 2137, Warehouse Receipt Law, SN Warehouse Corporation may file an action for interpleader and implead EJ and Melchor to determine who is entitled to the said goods.

NEGOTIABLE INSTRUMENTS LAW

Q: What is a negotiable instrument? Give the characteristics of a negotiable instrument (2005) A: It is a written contract for the payment of money

which is intended as a substitute for money and passes from one person to another as money, in such a manner as to give a holder in due course the right to hold the instrument free from defenses available to prior parties. (Sundiang, Aquino, Reviewer in Commercial Law, p.5, 5th edition) For an instrument to be considered as a negotiable one, it must comply with Section 1 of the Negotiable Instruments Law, to wit:

(a) It must be in writing and signed by the maker or drawer;

(b) Must contain an unconditional promise or order to pay a sum certain in money;

(c) Must be payable on demand, or at a fixed or determinable future time;

(d) Must be payable to order or to bearer; and

(e) Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.

A negotiable instrument is characterized by negotiability (capability of being transferred from one person to another so as to make him a holder who is entitled to the payment thereof) and its accumulation of secondary contracts resulting from indorsements at the back thereof.

Q: Discuss the negotiability or non-negotiability of the following notes (1993)

1)

Manila, September 1, 1993 P2,500.00

I promise to pay Pedro San Juan or order the sum of P2,500.

(Sgd.) Noel Castro 2)

Manila, June 3, 1993 P10,000.00

For value received, I promise to pay Sergio Dee or order the sum of P10,000.00 in five (5) installments, with the first installment payable on October 5, 1993 and the other installments on or before the fifth day of the succeeding month or thereafter.

(Sgd.) Lito Villa A:

1) The instrument is negotiable because it complied with the requirements provided by section 1 of the NIL namely that it is in writing, signed by the maker or drawer, contains an unconditional promise or order to pay a sum certain in money, payable on demand or at a fixed or determinale future time and payable to order or to bearer. It is signed by Noel Castro as maker or drawer, it contains an unconditional promise to pay a sum certain in money in the amount of P2,500 and it is payable on demand since there was no date stated.

2) The instrument is negotiable because it complied with the requirements provided by section 1 of the NIL. The fact that it is payable in installments does not make the instrument non-negotiable as long as it is stated installments and the maturity of each installment must be fixed or determinable (section 2b of NIL)

Q: Which of the following stipulations or features of a promissory note (PN) affect or do not affect its negotiability, assuming that the PN is otherwise negotiable? Indicate your answer by writing the paragraph number of the stipulation or feature of the PN as shown below and your corresponding answer, either ―Affected or ―Not affected. Explain.

a) The date of the PN is ―February 30, 2002.

b) The PN bears interest payable on the last day of each calendar quarter at a rate equal to five percent (5%) above the then prevailing 91-day Treasury Bill rate as published at the beginning of such calendar quarter. c) The PN gives the maker the option to make payment either in money or in quantity of palay or equivalent value.

d)The PN gives the holder the option either to require payment in money or to require the maker to serve as

the bodyguard or escort of the holder for 30 days. (2002)

A: A) paragraph 1: NOT AFFECTED

Date is not one of the requirements for negotiability therefore it is not essential except when the date is necessary to determine when the note is due

B) paragraph 2: NOT AFFECTED

An instrument payable with interest determinable at a fixed time is negotiable. The law provides under section 2a of the NIL, a sum is still considered as certain

although it is to be paid within interest. It does not

make the promise unconditional

C) paragraph 3: AFFECTED

An option given to the maker makes the promise conditional

D) paragraph 4: NOT AFFECTED

An option given to the holder does not make the promise conditional

Q: Distinguish a negotiable document from a negotiable instrument (2005)

A: A negotiable instrument is a written contract which is

intended as a substitute for money like promissory notes and bill of exchange while a negotiable document is a commercial instrument with limited negotiability but they have been held to be non-negotiable in the technical sense because they do not have the requisites under the Negotiable Instruments Law (De Leon, The Philippine Negotiable Instruments Law, p.8, 2010 edition). Furthermore, a negotiable document actually stands for the goods it covers while in a negotiable instrument, the subject matter is a sum certain in money. Moreover, a negotiable instrument is capable of accumulating secondary contracts resulting from indorsements at the back thereof while a negotiable document is not, especially considering that indorsement of the latter does not result in liability of the endorser when the depositary, like the warehouseman, fails to comply with his duty to deliver the things or goods deposited and covered by the warehouse receipt by the depositary. Also, a negotiable instrument is either a bill of exchange or promissory note while a negotiable document has various forms such as but not limited to bill of lading, stock certificates, warehouse receipts and pawn tickets.

Q: State and explain whether the following are negotiable instruments under the Negotiable Instruments Law:

1. Postal Money Order

2. A certificate of time deposit which states “ This is to certify that bearer has deposited in this bank the sum of FOUR THOUSAND PESOS (P4,000) only, repayable to the depositor 200 days after date.”

3. Letters of Credit 4. Warehouse Receipts

5. Treasury warrants payable from a specific fund (2005)

A:

1. Postal Money Order is not a negotiable instrument because, as held in Phil. Education Co. vs Soriano, there are many restrictions which make them incompatible with concepts of negotiable instruments, thereby making the order conditional, in contrast to Sec. 1 of the NIL. Furthermore, such is governed by postal rules and regulation and it may only be negotiated once.

2. The certificate of time deposit is a negotiable instrument because it is an acknowledgement in writing by the bank of the amount of deposit with a promise to repay the same to the depositor or bearer thereof at a specific time (Caltex v. CA, 212 SCRA 448).

3. A letter of credit is not negotiable because it is generally conditional and has limited negotiability because it is issued in favor of a specific person. But the Supreme Court held, in the case of Lee vs. Court of Appeals, that the

drafts issued in connection with the letters of

credit are negotiable instruments.

4. A warehouse receipt is not a negotiable instrument because the obligation of a warehouseman is not to pay but to deliver the goods under the warehouse receipt which fails to comply with the requirements set forth under Sec. 1 of the Negotiable Instruments Law. It is merely considered as a negotiable document that does not result in the accumulation of contracts.

5. A treasury warrant require appropriations from the national government which means that the particular fund may or may not exists which renders it conditional, thereby non-negotiable.

Q: Can a bill of exchange or a promissory note qualify as a negotiable instrument if –

A. it is not dated;

B. or the day and the month, but not the year of its maturity, is given; or

C. it is payable to ―cash

D. it names two alternative drawees (1997) A:

A) Yes. Date is not an essential requirement for the negotiability of an instrument as provided for in section 1 of the NIL

B) No. Since the year is not determined, the time for payment is not determinable

C) Yes. When the name of the payee does not purport to be the name of any person, the law provides in section 9d of the NIL that the maker or drawer intends the same

to be payable to bearer, hence the instrument qualifies as a negotiable instrument

D) No. When the bill is addressed to two or more payees in the alternative, the law provides in section 128 of the NIL that it is conditional and therefore non-negotiable. The objection to the drawers being in the alternative or in succession is the difficulty in determining the exact date of dishonor of the bill inasmuch as it cannot be said that the bill is dishonored until all of the drawers have dishonored it and if the presentment takes place for a period covering several days when the last dishonor is made, the first drawee who dishonored it may have already been released from his secondary liability due to the lapse of time before notice of dishonor was made by the holder. Notice of dishonor could not have been made earlier by the holder since there is still a remaining drawee, who has not yet dishonored it.

Q: R issued a check for P1M which he used to pay S for killing his political enemy.

1. Can the check be considered a negotiable instrument?

2. Does S have a cause of action against R in case of dishonor by the drawee bank?

3. If S negotiated the check to T, who accepted it in good faith and for value, may R be held secondarily liable by T? (2007 Bar Question) A:

1. Yes. The check can be considered as a negotiable instrument since it complied with the requirements of negotiability under Sec. 1 of the Negotiable Instruments law. The unlawful consideration for the issuance of the check is of no moment and will not affect the negotiability of the check as it merely constitutes a defect of title under Sec. 55 of the NIL.

2. No. S does not have a cause of action against R in case of dishonor by the drawee bank. S is not a holder in due course, thus, R can raise the defense that the check was issued for an illegal consideration.

3. Yes. R may be held liable by T since T is a holder in due course of the instrument. The unlawful consideration of the check is only a personal defense that cannot be interposed to a holder in due course who receives the check free from the defect of title of S.

Q: Richard Clinton makes a promissory note payable to bearer and delivers the same to Aurora Page. Aurora Page, however, endorses it to X in this manner: "Payable to X. Signed: Aurora Page."

Later, X, without endorsing the promissory note, transfers and delivers the same to Napoleon. The note is subsequently dishonored by Richard Clinton. May Napoleon proceed against Richard Clinton for the note? (1998)

A: Yes, Richard Clinton is liable for the promissory note.

Under Section 60 of the NIL, the maker of a negotiable instrument, by making the same, engages that he will pay according to its tenor, and admits the existence of the payee and his then capacity to indorse. The liability of the maker is primary which means he is absolutely and unconditionally required to pay. He engages to pay the instrument according to its terms without any condition. He is not only liable to the payee but also to the subsequent holder in due course. Since the instrument is a bearer instrument (which nature was not changed even if it was specially indorsed by Aurora), Napoleon became a legal holder thereof by mere delivery from X to him. Thus, as a legal holder of the promissory note, he is entitled to proceed against the maker thereof, Richard Clinton.

Q:

a) PN makes a promissory note for P5,000.00, but leaves the name of the payee in blank because he wanted to verify its correct spelling first. He mindlessly left the note on top of his desk at the end of the workday. When he returned the following morning, the note was missing. It turned up later when X presented it to PN for payment. Before X, T who turned out to have filched the note from PN’s office, had endorsed the note after inserting his own name in the blank space as the payee. PN dishonored the note, contending that he did not authorize its completion and delivery. But X said he had no participation in, or knowledge about the pilferage and alteration of the note and therefore he enjoys the rights of a holder in due course under the Negotiable Instruments Law. Who is correct and why?

b) Can the payee in a promissory note be a “holder in due course” within the meaning of the Negotiable Instruments Law (Act 2031)? Explain your answer (2000)

A:

a) Since the negotiable instrument is still incomplete and has not yet been delivered, PN is correct in dishonoring the said instrument. Sec. 15 of Act 2031 provides that where an incomplete instrument has not been delivered, it will not, if completed and negotiated without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery. Thus, under this section, it is a real defense that can even be interposed against a holder in due course. b) The Supreme Court in the case of De Ocampo vs

Gatchalian, G.R. No.L-15126, November 30, 1961, a payee may be a holder in due course provided that he was able to establish the conditions entitling him to be a holder in due course.

Q: Jun was about to leave for a business trip. As his usual practice, he signed several blank checks. He

instructed Ruth, his secretary, to fill them as payment for his obligations. Ruth filled one check with her name as payee, placed P30,000.00 thereon, endorsed and delivered it to Marie. She accepted the check in good faith as payment for goods she delivered to Ruth. Eventually, Ruth regretted what she did and apologized to Jun. Immediately he directed the drawee bank to dishonor the check. When Marie encashed the check it was dishonored.

1. Is Jun liable to Marie?

2. Supposing the check was stolen while in Ruth's possession and a thief filled the blank check, endorsed and delivered it to Marie in payment for the goods he purchased from her, is Jun liable to Marie if the check is dishonored? (2006)

A:

1. Yes. When a delivered instrument is wanting in any material particular, the person in possession thereof has prima facie authority to complete it by filling up the blanks. But if it was not filled up strictly in accordance with the authority given, it cannot be enforced against any person who became party thereto prior to its completion. However, if it is negotiated to a holder in due course, then it is valid and effective for all purpose in his hands because the defense of not filling it up in accordance with the authority given is only a personal defense that cannot be raised against a holder in due course. Based on the foregoing, Jun is liable to Marie, being a holder in due course, for the incomplete instrument which he delivered to Ruth.

2. No. The check is an incomplete instrument not delivered in contemplation of law. An incomplete instrument not delivered is not a valid contract in the hands of any holder as against any person whose signature was placed thereon before delivery. As such, Jun is not liable to Marie since he does not assume any responsibility whatsoever upon the said check (Sec. 15, Negotiable Instruments Law)

Q: A issued a promissory note payable to B or bearer. A delivered the note to B. B indorsed the note to C. C placed the note in his drawer, which was stolen by the janitor X. X indorsed the note to D by forging C's signature. D indorsed the note to E who in turn delivered the note to F, a holder in due course, without indorsement. Discuss the individual liabilities to F of A, B and C. (2001, 1997)

A: A is primarily and unconditionally liable to F as the

maker of the promissory note. Section 60 provides that, by making the instrument, the maker obliges himself to pay according to the tenor of the instrument. He is liable to both payee and subsequent holder in due course. Despite the presence of the special indorsements on the note, these do not detract from the fact that a bearer instrument, like the promissory note in question, is

always negotiable by mere delivery, until it is indorsed restrictively “For Deposit Only”

B as a general indorser is secondarily liable to F. By placing his signature on the bearer instrument, he warrants that the instrument is genuine and in all respects what it purports to be; that he has good title to it; that all prior parties had capacity to contract; that he has no knowledge of any fact which would impair the validity of the instrument or render it valueless; that at the time of indorsement, the instrument is valid and subsisting; and that on due presentment, it shall be accepted or paid, or both, according to its tenor, and that if it be dishonored and the 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.

C, however, cannot be held liable because the signature purporting to be his is a product of forgery. C can raise the defense of forgery since it his signature that was forged.

Q: Brad was in desperate need of money to pay his debt to Pete, a loan shark. Pete threatened to take Brad’s life if he failed to pay. Brad and Pete went to see Señorita Isobel, Brad’s rich cousin, and asked her if she could sign a promissory note in his favor in the amount of P10,000.00 to pay Pete. Fearing that Pete would kill Brad, Señorita Isobel acceded to the request. She affixed her signature on a piece of paper with the assurance of Brad that he will just fill it up later. Brad then filled up the blank paper, making a promissory note for the amount of P100,000.00. He then indorsed and delivered the same to Pete who accepted the note as payment of the debt.

What defense or defenses can Señorita Isobel set up against Pete? Explain. (2005)

A: Señorita Isobel can set-up both real and personal

defenses against Pete, who cannot claim to be a holder in due course because he knew of the compulsion used upon Señorita Isobel, thus :

a) the real defenses available are incompleteness of the instrument because Señorita Isobel only signed on a blank piece of paper, duress amounting to forgery, alteration of the holder by changing the amount to a higher figure; and b) the personal defenses of fraud in inducement

incompleteness when the paper was delivered, and lack of consideration.

Q: To accommodate Carmen, maker of a promissory note, Jorge signed as indorser thereon, and the instrument was negotiated to Raffy, a holder for value. At the time Raffy took the instrument, he knew Jorge to be an accommodation party only. When the promissory note was not paid, and Raffy discovered that Carmen had no funds, he sued Jorge. Jorge pleads in defense the fact that he had endorsed the instrument without

receiving value therefor, and the further fact that Raffy knew that at the time he took the instrument Jorge had not received any value or consideration of any kind for his indorsement. Is Jorge liable? Discuss. (1990, 1996) A: Yes, Jorge is liable. By the clear mandate of section 29

of the Negotiable Instruments Law, an accommodation party is "liable on the instrument to a holder for value, notwithstanding that such holder at the time of taking the instrument knew him to be only an accommodation party." It is not a valid defense that the accommodation party did not receive any valuable consideration when he executed the instrument (Ang Tiong vs Ting, G.R. No. L-26767, February 22, 1968).

Q: For the purpose of lending his name without receiving value therefor, Pedro makes a note for ₱20,000 payable to the order of X, who in turn negotiates it to Y, the latter knowing that Pedro is not a party for value.

1. May Y recover from Pedro if the latter interposes the absence of consideration? 2. Supposing under the same facts, Pedro pays

the said Php20,000 may he recover the same amount from X? (1998)

A:

1. Yes, Y may recover from Pedro. Section 29 of the NIL provides that a person who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person is liable on the instrument to a holder for value, notwithstanding the fact that such holder at the time of taking the instrument knew him to be only an accommodation party. Pedro, being an accommodation maker of a note, may thus be held primarily and unconditionally liable therefor.

2. Yes, Pedro may recover from X. When the accommodation party makes payment to the holder of the note, he has the right to sue the accommodated party for reimbursement, since the relation between them is in effect that of principal and surety, the accommodation party being the surety. Thus, after paying the holder, Pedro may seek reimbursement from X, the accommodated party.

Q: On June 1, 1990, A obtained a loan of ₱100,000 from B, payable not later than December 20, 1990. B required A to issue him a check for that amount to be dated December 20, 1990. Since he does not have any checking account, A, with the knowledge of B, requested his friend, C, President of Saad Banking Corporation (Saad) to accommodate him. C agreed, he signed a check for the aforesaid amount dated December 20, 1990, drawn against Saad’s account with the ABC Commercial Banking Co. The By-laws of Saad requires that checks issued by it must be signed by the President and the Treasurer or the Vice-President . Since the Treasurer was absent, C requested the Vice-President to co-sign the check, which the latter reluctantly did. The check was delivered to B. The

check was dishonoured upon presentment on due date for insufficiency of funds.

a. Is Saad liable on the check as an accommodation party?

b. If it is not, who then, under the above facts, is/are liable? (1991)

A:

a. No, Saad is not liable as an accommodation party. This is because the issue or indorsement of negotiable paper by a corporation without consideration and for the accommodation of another is ultra vires. Hence, one who has taken the instrument with knowledge of the accommodation nature thereof cannot recover against a corporation where it is only an accommodation party. While it may be legally possible for a corporation whose business is to provide financial accommodations in the ordinary course of business, such as one given by a financing company, to be an accommodation party, this situation, however, is not the case at bar.

b. Considering that both the President and the Vice-President were signatories to the accommodation, they themselves can be subject to the liabilities of accommodation parties to the instrument in their personal capacity (Crisologo-Jose v. CA, 177 SCRA 594).

Q: What constitutes a holder in due course? (1996) A: Under Sec. 52 of the Negotiable Instruments Law, a

holder in due course is a holder who has taken the instrument under the following conditions:

a) That it is complete and regular upon its face; b) That he became the holder of it before it was

overdue, and without notice that it has been previously dishonored, is such was the fact; c) That he took it in good faith and for value; d) That at the time it was negotiated to him, he

had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

Q: Larry issued a negotiable promissory note to Evelyn and authorized the latter to fill up the amount in blank with his loan account in the sum of P1,000. However, Evelyn inserted P5,000 in violation of the instruction. She negotiated the note to Julie who had no knowledge of the infirmity. Julie in turn negotiated said note to Devi for value and who had no knowledge of the infirmity.

a) Can Devi enforce the note against Larry and if she can, for how much? Explain.

b) Supposing Devi endorses the note to Baby for value but who has knowledge of the infirmity, can the latter enforce the note against Larry? (1993)

A:

a) Devi can enforce the note against Larry since she is a holder in due course. Since the

document delivered to Evelyn is in blank and she was authorized to fill up the amount in the promissory note, Devi can enforce against Larry the amount of P5,000.00 as this case falls squarely under Sec 14 of the Negotiable Instruments Law. As against a holder in due course, the instrument is always valid and enforceable to the full extent. The defense of filing-up contrary to authorization is a mere personal or equitable defense (Villanueva, Commercial Law Review, 2009 edition)

b) Baby cannot enforce the note against Larry since she is not a holder in due course because Larry could interpose the real and personal defenses to defeat the claim of Baby. However, because of the shelter principle in Negotiable Instruments Law, Baby could be elevated to a status of a holder in due course since a person not holder in due course steps in the shoes of the prior party. Therefore, Baby could enforce the note against Larry the same way as Devi could enforce it.

Q: How does the “shelter principle” embodied in the Negotiable Instruments Law operate to give rights of a holder-in-due course to a holder who does not have the status of a holder-in-due course? Briefly explain. (2008 Bar Question)

A: The shelter principle provides that a person, to whom

a holder in due course has transferred the negotiable instrument, as well as any later transferee, will succeed to the rights of the holder in dues course. As a result, transferees of holders in due course are generally not subject to defenses against the payment of an instrument. This doctrine ensures the free transferability of the negotiable instrument. Its name derives from the idea that the transferees “take shelter” in the rights of the holder in due course. However, this principle presupposes that the holder for value is not a party to the fraud.

Since a holder for value merely steps into the shoes of the indorser, the holder for value will be able to acquire the rights of a holder in due course if the indorser is a holder in due course.

Q: Eva issued to Imelda a check in the amount of P50,000 post-dated Sept. 30, 1995, as security for a diamond ring to be sold on commission. On Sept. 15, 1995, Imelda negotiated the check to MT investment which paid the amount of P40,000 to her.

Eva failed to sell the ring, so she returned it to Imelda on Sept. 19, 1995. Unable to retrieve her check, Eva withdrew her funds from the drawee bank. Thus, when MT Investment presented the check for payment, the drawee bank dishonored it. Later on, when MT Investment sued her, Eva raised the defense of absence of consideration, the check having been issued merely as security for the ring that she could not sell.

Does Eva have a valid defense? Explain. (1996)

A: No. Eva does not have a valid defense. Her defense

that there was no consideration is not available to defeat the claim of MT Investment since it is a holder in due course who holds the post dated check free from any defect of title of prior parties and from defenses available to prior parties among themselves. Eva can raise the defense of absence of consideration against MT Investment only if the latter was privy to the purpose for which the checks were issued, and therefore, not a holder in due course.

Q: X makes a promissory note for P10,000 payable to A, a minor, to help him buy school books. A endorses the note to B for value, who in turn endorses the note to C. C knows A is a minor. If C sues X on the note, can X set up the defenses of minority and lack of consideration? (1998)

A: X cannot set-up the defense of minority to defeat the

claim of C since only A, the minor could invoke minority as a defense. X cannot set up the defense against C. Lack of consideration is a personal defense which is only available between immediate parties who are not holders in due course. C’s knowledge that A is a minor does not prevent C from being a holder of due course. C took the promissory from a holder for value B.

Q:

A. AB issued a promissory note for P1,000 payable to CD or his order on September 15, 2002. CD indorsed the note in blank and delivered the same to EF. GH stole the note from EF and on September 14, 2002 presented it to AB for payment. When asked by AB, GH said CD gave him the note in payment for two cavans of rice. AB therefore paid GH P1,000 on the same date. On September 15, 2002, EF discovered that the note of AB was not in his possession and he went to AB. It was then that EF found out that AB had already made payment made payment on the note. Can EF still claim payment from AB? Why?

B. As a sequel to the same facts narrated above, EF, out of pity for AB who had already paid P1,000to GH, decided to forgive AB and instead go after CD who indorsed the note in blank to him. Is CD still liable to EF by virtue of the indorsement in blank? Why? (2002) A:

A. Since the instrument became a bearer instrument, EF could no longer claim payment from AB. EF is not a holder of the promissory note. To make the presentment for payment, it is necessary to exhibit the instrument, which EF cannot do because he is not in possession thereof.

B. No, because CD negotiated the instrument by delivery.

Q: As a rule under the Negotiable Instruments Law, a subsequent party may hold a prior party liable but not vice-versa. Give two (2) instances where a prior party may hold a subsequent party liable. (2008)

A: In case of an accommodated party and in case of an

acceptor for honor. An accommodation party may hold the party accommodated liable to him, even if the party accommodated is a subsequent party. The relation between them is that of a principal and a surety (Philippine National Bank v. Maza (1925). For the same reason, an acceptor for honor may hold the party for whose honor he has accepted a bill of exchange liable to him (Sec. 161, NIL). A prayer for honor is subrogated to the rights of the holder as regards the party for whose honor he paid and all parties liable to the latter (Sec. 175, NIL)

Q: Distinguish clearly (1) crossed checks from cancelled checks (2004)

A: A crossed check is one with two parallel lines drawn

diagonally on the left portion of the check. On the other hand, a cancelled check is one marked or stamped "paid" and/or "cancelled" by or on behalf of a drawee bank to indicate payment thereof.

Q: Po Press issued in favor of Jose a postdated crossed check, in payment of newsprint which Jose promised to deliver. Jose sold and negotiated the check to Excel Inc. at a discount. Excel did not ask Jose the purpose of crossing the check. Since Jose failed to deliver the newsprint, Po ordered the drawee bank to stop payment on the check. Efforts of Excel to collect from Po failed. Excel wants to know from you as counsel: 1) What are the effects of crossing a check?

2) Whether as second indorser and holder of the crossed check, is it a holder in due course?

3) Whether Po’s defense of lack of consideration as against Jose is also available as against Excel? (1994, 1995, 2005)

A:

1. The effects of crossing a check are:

a.

The check may not be encashed but only deposited in the bank;

b.

The check may be negotiated only once to one who has an account with a bank; and

c.

The act of crossing the check serves as a warning to the holder that the check has been issued for a definite purpose so that he must inquire if he has received the check pursuant to that purpose, otherwise he is not a holder in due course.

2. Excel Inc. is not a holder in due course. The act of crossing the check imposes upon the holder thereof the duty to ascertain the indorser’s, title to the check or the nature of his possession or the purpose for which it was issued. Excel is guilty of gross negligence amounting to legal

absence of good faith for its failure to inquire from Jose the purpose for which the three checks were crossed despite the warning of the crossing, hence, it is not deemed a holder in due course.

3. Yes, the defense of lack of consideration as against Jose is also available as against Excel. For not being a holder in due course, Excel is subject to personal defenses as if the check were non-negotiable, such as lack of consideration between Po Press and Jose. In this case, Jose’s failure to deliver the newsprint resulted in the absence of consideration for the issuance of the check. Consequently, Po Press cannot be made liable to pay the face value of the check.

Q: On March 1, 1996, Pentium Company ordered a computer from CD Bytes, and issued a crossed check in the amount of P30,000 post-dated Mar 31, 1996. Upon receipt of the check, CD Bytes discounted the check with Fund House. On April 1, 1996, Pentium stopped payment of the check for failure of CD Bytes to deliver the computer. Thus, when Fund House deposited the check, the drawee bank dishonored it. If Fund House files a complaint against Pentium and CD Bytes for the payment of the dishonored check, will the complaint prosper? Explain (1996)

A: The case will prosper as against the CD Bytes, the

immediate indorser but not as against Pentium Company. The effect of crossing a check relates to the mode of its presentment for payment which must be made by the holder, or by some person authorized to receive payment on his behalf. Thus, in the absence of due presentment, as in this case where the check was not presented by the payee (CD Bytes) or the proper party authorized to make presentment of the checks, the drawer (Pentium Company) cannot be held liable. However, Fund House may recover from the immediate indorser, if the latter has no valid excuse for refusing payment.

Q: Discuss the legal consequences when a bank honors a forged check. (2006)

A: When drawer’s signature is forged, drawee-bank by

accepting the check cannot set up the defense of forgery because by accepting the instrument, the drawee bank admits the genuineness of the signature of the drawer. (BPI Family Bank vs. Buenaventura G.R. No. 148196, September 30, 2005)

When the payee’s signature is forged, the drawee-bank who pays the same must be considered as paying out of its own funds since it is the primary duty of the bank to verify the authenticity of the payee’s signature. (Traders Royal Bank v. RPN, G.R. No. 138510, October 10, 2002). When the forged signature is that of an indorsement, the drawer’s account cannot be charged, and if charged, he can recover from the drawee-bank because the liability

to pay still falls on the drawee bank for having guaranteed the genuineness of all prior indorsements. However, a collecting bank is not guilty of negligence over a forged indorsement on checks for it has no way of ascertaining the authority of the indorsement unless it further indorses the forged check wherein he becomes liable upon the same as a general indorser. (Traders Royal Bank v. RPN, G.R. No. 138510, October 10, 2002).

INSURANCE CODE

Q: Juan de la Cruz was issued Policy No. 8888 of the Midland Life Insurance Co. on a whole life plan for P20,000 on August 19, 1989. Juan is married to Cynthia with whom he has three legitimate children. He, however, designated Purita, his common-law wife, as the revocable beneficiary. Juan referred to Purita in his application and policy as the legal wife. Three (3) years later, Juan died. Purita filed her claim for the proceeds of the policy as the designated beneficiary therein. The widow, Cynthia, also filed a claim as the legal wife. To whom should the proceeds of the insurance policy be awarded? (1998 Bar Question)

A: The estate is entitled to claim for the proceeds of the

insurance policy. As a general rule, the insured may designate anyone he wishes to be his/her beneficiary. However, Art. 2012 of the Civil Code, which applies suppletorily to the Insurance Code, provides that any person who is forbidden from receiving any donation under Art. 739 cannot be named beneficiary of a life insurance policy by the person who cannot make any donation to him, according to said article. Art. 739 specifically bars the donations as between persons who were guilty of adultery or concubinage. Since Purita is a common-law wife of Juan, she falls squarely in to this category therefore she is disqualified to receive insurance proceeds and when this happens, the estate of the deceased is the one entitled to the proceeds (Insular Life Assurance Company, Ltd. vs. Capronia Ebrado, G.R. No. L-44059, October 28, 1977).

Q: Distinguish co-insurance from re-insurance? (1994) A: Co-insurance is the percentage in the value of the

insured property which the insured himself assumes or undertakes to act as insurer to the extent of the deficiency in the insurance of the insured property. Reinsurance is where the insurer procures a third party, called the reinsurer, to insure him against liability by reason of such original insurance. Basically, a reinsurance is an insurance against liability which the original insurer may incur in favor of the original insured

Q: The Peninsula Insurance Company offered to insure Francis' brand new car against all risks in the sum of P1 Million for 1 year. The policy was issued with the premium fixed at P60,000.00 payable in 6 months. Francis only paid the first two months installments. Despite demands, he failed to pay the subsequent installments. Five months after the issuance of the policy, the vehicle was carnapped. Francis filed with the

insurance company a claim for its value. However, the company denied his claim on the ground that he failed to pay the premium resulting in the cancellation of the policy. Can Francis recover from the Peninsula Insurance Company? (2006)

A: Yes. As a general rule, no policy is binding unless the

premiums thereof have been paid. However, one of the exceptions is when there is an agreement allowing the insured to pay the premium in installments and partial payment has been made at the time of loss. In the case at hand Francis already paid two installments at the time of the loss and as such may recover on the policy (Makati Tuscany Condominium Corp. v. CA, G.R. No. 95546, Nov. 6, 1992). Furthermore, the contention of the insurer that the failure to pay premium resulted in the cancellation of the policy since no policy of insurance shall be cancelled except upon notice thereof to the insured (Sec. 64, Insurance Code).

Q: Terrazas de Patio Verde, a condominium building has a value of P50 Million. The owner insured the building against fire with three (3) insurance companies for the following amounts:

Northern Insurance Corp. – P20 Million Southern Insurance Corp. - P30 Million Eastern Insurance Corp. – P50 Million

1. Is the owner’s taking of insurance for the building with three (3) insurers valid? Discuss. 2. The building as totally razed by fire. If the

owner decides to claim from the Eastern Insurance Corp. only P50 Million, will the claim prosper? (2008)

A:

1. Yes. When there is double insurance and over insurance results, the insured can claim in case of loss only up to the agreed valuation or up to the full insurable value from any, some or all insurers, without prejudice to the insurers ratably apportioning the payments. The insured can also recover before or after the loss, from both insurers the excess premium he has paid (Sec 94, ICP). What is prohibited is over insurance wherein there is only one insurer, where the insured takes insurance beyond the value of his insurable interest. In this case, there is no over insurance because the insurable interest in each insurance policy availed of by the owner did not exceed the value of the property. Double insurance resulting to over insurance is allowed provided that the beneficiary can claim only up to the full insurable value from any, some or all insurers as in the case at bar.

2. Yes. The owner may demand indemnity from Eastern Insurance alone since the valued policy covers the total amount of the loss incurred by the property insured. Sec. 94 clearly provides that in case of double insurance, the owner may recover from any, two or all of the insurers