Mercantile Law Jeff David’ David’s notes
I.
LETTERS OF CREDIT
A. Definition -
A letter of credit is a written instrument 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 therefore to the addressee (Transfield Phils vs. Luzon Hydro Corp 443 Scra 307)
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Nature the letter of credit has evolved as the ubiquitous and most important device in international trade. A creation of commerce and businessmen the letter of credit is unique in the number of parties p arties involved and its supranational character. (Transfield Phils vs Luzon Hydro Corp, supra)
B. Parties to a Letter of Credit -
There would be at least 3 parties to a letter of credit.
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Arrangement:
Buyer (Applicant) – (Applicant) – one one who procures the letter of credit
Issuing Bank – Bank – one one who issues the letter of credit and undertakes undertakes to pay seller upon receipt of the draft and proper documents of title
Seller (Beneficiary) – (Beneficiary) – one one who ships the goods to buyer and delivers the documents of title to the bank along with the draft. (Bank of America vs CA 228 Scra 357 (1993))
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Rights and Obligations of Parties
Obligations of Applicant (Buyer)
Reimbursement Reimbursement of issuing bank upon receipt of documents of title
Oligations of Issuing Bank
Letters of credit constitute the primary obligation, and not merely an accessory contract, contract, of the issuing bank separate from the underlying contract it may support.
Protect importer’ importer ’s interest by paying letters of credit only upon surrender of documents that strictly conform to the terms of the letter of credit.
Obligations of the Seller
Submission of documents of title to the correspondent bank
Ask the bank to honor the credit
C. Basic Principles of Letters of Credit 1. Doctrine of Independence -engagement of issuing bank is to pay seller-beneficiary seller -beneficiary of the credit once the draft and the required documents are presented to it. It assures the seller that prompt payment is to be made, independent of any breach of the main contract and precludes the issuing bank from determining whether the main contract is actually accomplished or not. (Transfield Phils Inc. vs Luzon Hydro Corp, supra)
2. Fraud Exception Principle -Fraud is an exception to the independence principle, untruthfulness of a certificate accompanying a demand for payment under a standby credit may qualify as fraud sufficient to support an injunction against payment. The remedy against fraudulent fraudulent abuse should not be granted unless:
a. there is clear proof of fraud b. fraud constitutes fraudulent fraudulent abuse of independent purpose of the letter of credit and not only of fraud of the main agreement
c. irreparable injury might follow if injunction is not granted granted or the recovery of damages would be seriously damaged (Transfield Phils Inc vs Luzon Hydro Corp, supra)
3. Doctrine of Strict Compliance -documents tendered must conform strictly to the terms of the letters of credit, a correspondent bank which departs d eparts from what has been bee n stipulated under the letter of credit as where it acts upon and accepts a fault tender acts on its own risks and it may not therefore recover from the buyer or the issuing bank, as the case may be, the money thus paid to the beneficiary seller. (Feati Bank vs CA 196 Scra 576)
II.
TRUST RECEIPTS LAW
A. Definition/Concept of Trust Receipt Transaction -
Definition
A trust receipt is a commercial commercial document whereby the bank releases the
goods in the possession of the entrustee but retains ownership thereof while the entrustree shall sell the goods and apply the proceeds for the full payment of his liabilities with the bank -
Concept
It is a security arrangement to which a bank acquires ownership pf the imported personal property (Garcia vs CA 258 Scra 446)
1. Loan/Security Feature PART II C. Obligation and Liability of the Entrustee Entrustee 1. Payment/Delivery of Proceeds of Sale on Disposition of Goods, Documents or Instruments - a trust receipt transaction imposes upon the entrustee the obligation to deliver to the entruster the price of the sale, or if the merchandise is not sold, to return the same to the entruster, and a violation of any of these undertakings constitutes estafa defined under Art. 315(1)(b) of the Revised Penal Code, as proved by Sec. 13 of PD 115 (Gonzales vs. HSBC, 537 SCRA 255) 2. Return of Goods, Documents of Proceeds of the Sale or Disposition of Goods, Documents or Instruments in case of non-sale - failure of the entrustee to turn over the sale proceeds, or to return said goods if they were not disposed of in accordance with the terms of the trust receipt, shall be punishable as estafa under Art. 315 (1) of the Revised Penal Code, without need of proving intent to defraud. (Colinares vs. Cort of Appeals, 339 SCRA 609) 3. Liability for loss of goods, documents or instruments - it is the entrustee that bears the risk of loss 4. Penal sanction if offender is a Corporation Corporation - under PD 115, performance of the act is an ob ligation directly directly imposed by law on the Corporation, and consequently, since a corporation can only act through its
officers, then the responsible office must necessarily be the ones criminally liable (Sia vs. Court of Appeals, 121 SCRA 655) D. Remedies Available - Entruster has the discretion to cancel the trust and take possession of the goods or seeks any third party action/claim or a separate civil action which it deems best to protect its rights, at any time upon default or failure of the entrustee to comply with any of the terms and conditions of the trust agreement (South City Homes, Inc. vs. BA Finance Corp., 371 SCRA 603) 1. Entrustee always bound to pay loan –since –since trust receipts agreements are merely security for the loan agreement, the full-turnover of the goods subject of the trust receipts does not suffice to divest debtors of their
obligations to pay pay the principal amount amount of the loan.
Sec. 7, PD 115 expressly provides for for it. 2.
Entruster may file estafa charges against entrustee
SECRECY OF BANK DEPOSITS 1. Purpose - RA 1405 has two allied purposes: (a) to discourage discourage private hoarding and (b) at the same time encourage the people to deposit their money in banking institutions so that it may be utilized by way of authorized loans and thereby assist in economic development (BSB Group, Inc. vs. Go, 612 SCRA 596) 2. Prohibited Acts - Prohibition on disclosure the act declares unlawful for any official or employee of a banking
institution to disclose to any information information concerning bank accounts exceptions: (1) upon the debtor’s debtor ’s written permission (2) in cases of impeachment
(3) upon a competent court’s order in cases of bribery of, or dereliction of duty by public officials or; (4) in cases where money deposited or invested is the subject matter o f litigation Other exceptions a. Anti- Graft and Corrupt Practices Act requirements: there must be a pending case before a court of competent jurisdiction the account must be clearly identified inspection should be limited to the subject matter of the pending case
before the court of competent jurisdiction the bank personnel and account holder must be present and notified during
the inspection b. Monetary Board Authority MB orders revelation when there is danger of bank fraud When independent auditors audit banks
c. Under the 1997 NIRC - Sec. 6(F) of the 1997 NIRC (RA 8424) authorizes the BIR commissioner to inquire into bank deposit accounts of: a) a decedent to determine his gross estate b) any taxpayer who has filed an application for compromise of his tax liability, which application shall include a written waiver of his privilege under the Secrecy of Ban Deposit Act or other general or special laws. d. Anti-Money Laundering Act of 2001 e. Revised PDIC Charter -Rep. 9576, in revising the PDIC Charter, provided that, notwithstanding the provisions of the Secrecy of Bank Deposit Act, PDIC or BSP “may inquire into or examine deposit accounts and all information related [to bank deposits] in case there is a finding of unsafe or unsound banking practice.” f. Exchange of Information on Tax Matters Act 3. Deposits Covered
under the act, all deposits of whatever nature with banks or banking
institutions, including investments in bonds issued by the Government, and its political subdivisions and instrumentalities FCDUs
4. Garnishment of Deposits 1) FCDUs – FCDU accounts are “exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency, or any administrative body whatsoever.”
ANTI-MONEY LAUNDERING ACT (RA No. 9160, as amended by RA 9194) 1. Policy of the Law (a) protect and preserve integrity and confidentiality of bank accounts, to ensure that the Philippines shall not be used as a site for unlawful money laundering activities; and (b) pursue State’s foreign policy to extend cooperation in t ransnational investigations and prosecutions on money laundering activities. AMLA seeks to prevent money-laundering activities for providing more transparency in the Philippine financial system 2. Covered Institutions (a) Banks and other entities, their subsidiaries and affiliates, supervised/regulated by BSP; (b) Insurance companies and other entities supervised/regulated by the Insurance Commission (c) SEC supervised/regulated:
Securities dealers, brokers, salesmen, investment houses, and other entities managing securities or rendering services as investment agents, advisor or consultants;
Mutual funds, closed-end investment companies, common trust funds, pre need companies, and other similar entities;
Foreign exchange corporations, money changers, money payment centers, remittance, and transfer companies, and other similar entities; and
Other entities administering/dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property
3. Obligations of Covered Institutions a) Establish and record, maintain a system of verifying the true identities of clients b) Keep records for five (5) years c) Repeat covered transactions and suspicious transactions to AMLC within f ive (%) working days from occurrence, which thereby shall not be a violation of Secrecy of Bank Deposit Act, FCDU Law, and the General Banking Law of 2000 d) They are prohibited from allowing clients to open anonymous accounts, accounts under fictitious names, and all other similar accounts. EXCEPT: NUMBERED ACCTS. ALLOWED, EXCEPT FOR CHECKING ACCOUNTS e) BSP may conduct annual testing of banking institutions solely limited to the determination of the existence and true identity of the owners of such accounts 4. Covered Transactions a) “Threshold Transactions” – transaction in cash or other equivalent monetary instrument in excess of P500,000.00 within one banking d ay b) “Suspicious Transactions” – Transaction with “Covered Institutions” regardless of the amount involved, where any of the following circumstances exist: 1) no underlying legal or trade obligation, purpose or economic justification 2) client is not properly identified 3) amount involved not commensurate with client’s business or financial capacity 4) based on all known circumstances, it may be perceived by client ‘s transaction is structured in order to avoid being subject of reporting requirements 5) any circumstance relating to transaction observed to deviate from client’s profile and/or client’s past transactions with covered institution 6) transaction is in any way related to an unlawful activity or offense under the act that is about to be, is being or has been committed; or 7) Similar or analogous transactions 6. When Money Laundering Committed - a money laundering crime is committed when the proceeds of an “unlawful activity” are transacted to make them appear to have originated from legitimate sources, by the following acts: a) Transacting or attempting to transact, with monetary instrument or property, knowing it represents/involves/relates to proceeds of any “unlawful activity” b) Facilitating money laundering referred to item – a above by knowingly or failing to perform an act, or c) Failing to disclose or file report with AMLC of any monetary instrument or
property as required under the law. 7. Unlawful Activities or Predicate Crimes - Acts or omissions or combination or series thereof, involving or having relation to the following: 1. Kidnapping for Ransom 2. Drug Trafficking 3. Graft and Corrupt Practices 4. Plunder 5. Rubbery and Extortion 6. Jueteng and Masiao 7. Piracy on the High Seas 8. Qualified Theft 9. Swindling 10. Smuggling 11. Violations of E-Commerce Act 12. Hijacking, destructive arson and murder, including acts of terrorism against non-combatant persons and similar targets 13. Fraudulent practices under the Sec. Reg. Code 2000 14. Felonies or offenses of similar nature punishable under the p enal laws of other countries * There can be separate convictions for the money laundering offense and unlawful activity constituting it * But unlawful activity shall be given precedence over money laundering charge without prejudice to freezing and other remedies provided by the act. 8. Anti-Money Laundering Council (AMLC) - Composition – BSP
Governor, as AMLC Chairman
- Insurance Commission Chairman - SEC Chairman 9. Freezing of Money Instrument or Property - The original power of the AMLC to freeze accounts has been deleted under RA 9194. Under the current version, the Court of Appeals may issue a Freeze Order only: a) upon ex-parte application of AMLC; b) after determination that probable cause exists that any way related to an
“unlawful activity” * It shall be effective immediately, and for a period of 20 days unless extended by the Court 10. Authority to Inquire into Bank Deposits - AMLC may seek court order: to inquire into or examinee a particular deposit or investment with a banking or non-bank financial institution - AMLC on its own: and no account is required, in cases involving: (a) kidnapping for ransom; (b) drug trafficking or (c) terrorism * BASIS OF ORDER: UPON PROBABLE CAUSE THAT THE DEPOSITS OR INVESTMENTS ARE IN ANY WAY RELATED TO AN UNLAWFUL ACTIVITY OR MONEY-LAUNDERING OFFENSE THERE CAN BE NO EXAMINATION OF DEPOSITS OR INVESTMENTS MADE PRIOR THE ACT’S EFFECTIVITY
MEMORIZE THE FOLLOWING PROVISIONS: NIL - Sec. 1 61 66 29 49
242-243
52
138-144
08
100
Insurance Code - Sec. 2
10
14
3
93
77
60-61
11
19
20
82
10 – relate this to Art. 739 of the Civil Code 93 – double insurance * Elements of Insurance
64 52
32 26
94
1) insured possesses insurable interest capable of pecuniary estimation 2) insured is a subject to a risk of loss upon the happening of the designated peril 3) the insured assumes the risk of loss 4) the assumption of risk is part of a general scheme to distribute actual losses among a large group or substantial number of persons bearing a similar risk 5) the insured pays a premium Requisites for double insurance 1) person insured is the same 2) there ate two or more insurers insuring separately Implied warranties in Marine Insurance: 1) Seaworthiness at inception of insurance 2) Ship will not deviate from the agreed voyage, unless deviation is proper 3) Ship will not engage in illegal venture 4) Ship will carry requisite does of nationality of the ship or cargo 5) Presence of insurable interest Corporation Code - Sec. 2
5
10
16
36
31
42
83
22
104
123
23
19
18
23
81
82
76
96
105
Attribute of a Corporation 1) Artificial being with separate distinct personality 2) Created by operation of law 3) Has the right of succession 4) Has the powers and attributes conferred by law or incident to its existence 464 – 3800------- October 7
85 – 800
3,132.54
37,590.46
MONICA – HSBC General Powers of the Corporation – Sec. 36 1) Sue and be sued in its Corporate name 2) Succession
3) Accept and use a Corporation Seal 4) Amend its articles of incorporation 5) Accept-amend or repeal by-laws 6) Deal in real and personal property
RA 7653 The New Central Bank Act Sec. 15 – powers RA 8791 General Banking Act of 2000 Kinds of Banks: 1) Universal Bank – are bans which can exercise the powers of an investment house and invest in non-allied enterprises.
Has the highest capitalization
requirement. 2) Commercial Bank – banks that cannot exercise the powers of an investment house nor invest in non-allied enterprises.
It has a lower capitalization
requirement than universal universal banks. 3) Thrift Bank – composed of: a) Savings and mortgage banks; b) Stock savings; c) Private development banks governed by the Thrift Banks Act 4) Rural Banks – are banks for rural development.
They are mandated to
ensure that credit is available and readily accessible in the rural areas on reasonable terms.
Governed by the Rural Banks Act of 1992.
These bans
must be wholly owned by Filipinos 5) Cooperative Banks – are banks whose majority shares are owned by cooperatives primarily to provide financial and credit services to cooperatives 6) Islamic Banks – are banks whose business dealings are subject to the basic rules of Islamic Sharia
PART III
MERCANTILE LAW NEGOTIABLE INSTRUMENTS Functions of Negotiable Instruments: Negotiable instruments are meant to be substitutes for money and thereby increase the purchasing media in circulation. Principal Features of Negotiable Instruments: 1. Negotiability -
only an instrument qualifying as a negotiable instrument may be negotiated by: a) endorsement coupled with delivery b) delivery alone where instrument is in bearer form.
2. Accumulation of secondary contracts -
they are transferred from one person to another, as to allow a transferee to have a better title than the transferor.
Specific Instruments covered: 1. Promissory note – maker
*The holder in
due course is the person 2. Bill of exchange drawer protected by the NIL.
primarily
3. Check Formal Requisites of Negotiable Instruments: 1. It must be in writing; 2. It must be signed by the maker or drawer; 3. It must contain an unconditional promise or order to pay a sum certain in money; 4. It must be payable on demand, or at a fixed determinable future time. 5. It must be payable to order or to bearer; 6. Where it is a bill of exchange, drawee must be named or otherwise indicated therein with reasonable certainty. A negotiable document of title -
Warehouse receipts
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Symbolic or constructive delivery
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It is a substitute for goods
1, 23, 52 – warranties of an
MEMORIZE
Memory aid for requisites of negotiability: 1. It must be in writing signed by a maker or drawer; 2. It must contain an unconditional promise or order to pay a sum certain in money; 3. It must be payable on demand, or at a fixed or determinable future time; 4. Must be payable to order or to bearer; 5. Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.1
Promissory Note -
An unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or to bearer.
Bill of Exchange -
An unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed determinable future time a sum certain in money to order or to bearer.
*A negotiable instrument is a real contract; it is deliverable as it is perfected only upon delivery. (delivery is required) Complete but undelivered -
is a defense available only against parties to the fraud but cannot be used against a holder in due course.
Incomplete but undelivered -
is a personal defense which cannot be used against a holder in due course.
Incomplete and undelivered -
1
a real defense that can be availed of against a holder on due course.
#5 applies only to bills of exchange.
Forgery of Signature (Sec. 23) If the signature of the person below is forged: 1. Drawer – a)
Drawer vs. Drawee – Drawer wins because the proximate cause is the negligence of the bank who is
supposed to know the signature of its own depositor. b) Drawee vs. Depositary Bank – Drawee wins, depositary bank is liable for warranties of an indorser. 2. Payee – a) Drawee vs. Drawer – Drawer wins – Section 23. 3. Indorser – a) Drawee vs. Drawer – Drawer wins – Section 23. Warranties of an Indorser: -
Genuineness and due execution of the instrument.
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Authenticity of signature
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A guaranty on the solvency of the drawer (necessity of notice of dishonor)
Alteration or Intercalation *Parties before the alteration shall only be liable for the original amount (unaltered amount) *Parties after the alteration shall be liable for the whole amount (altered amount) – due to their warranties as indorser. Holder in Due Course – Section 52 1. That it is complete and regular upon its face; 2. That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact; 3. That he took it in good faith and for value; 4. That at the time it was negotiated to him, he had no notice of any infirmity in the instrument or defect in the t itle of the person negotiating it.
Research: -
Real defenses available even against holder in due course?
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What are personal defenses available only against the participants of the fraud?
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Who is an accommodation party?
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Who is an irregular indorser?
One who signs without indicating at what capacity he is signing before the issuance of the negotiable instrument. -
Who is a qualified indorser?
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When is a negotiable instrument discharged?
-
o
Payment or maturity
o
Upon a restrictive indorsement
Different kind of indorsement
*If the instrument is payable to a fictitious person it is payable to bearer. Holder in Due Course (Sec. 52) -
A holder who has taken the instrument under the following conditions: a) Complete and regular upon its face b) That he became holder of it before it was overdue and without notice that it had been previously dishonored c) That he took it in good faith and for value d) At the time it was negotiated to him, he had no notice of any infirmity in the instrument or defect in the t itle of the person negotiating it.
*Every holder of a negotiable instrument is deemed to be prima facie a holder in due course. The title of a person
to the instrument is defective in two ways:
a) In its acquisition -
The tile of a person is defective if he acquired the instrument by
fraud, duress or force and fear, or other unlawful means, or for an illegal consideration. b) In its negotiation
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If he negotiates the instrument in breach of faith or under circumstances as to amount to fraud.
Rights of a Holder in Due Course a) May sue in his own name b) He may receive payment and payment to him in due course discharges the instrument. c) He holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties themselves d) He may enforce payment of the instrument for the full amount thereof against all parties liable thereon Not a ood defense a ainst a holder in due
Personal Defenses -
Good a ainst a holder not in due course
those that arise in the course of the life of the instrument emanating from the conduct of circumstances surrounding its acquisition by a party thereto.
Examples of Personal Defenses: a) complete but undelivered instrument b) incomplete but delivered instrument c) acquisition of instrument Examples of Real Defenses: a) Incomplete and undelivered instruments b) Forgery c) Minority Warranties of a Maker a) He will pay the promissory note according to its tenor. b) He admits the existence of the payor. c) Admits the payee has the capacity to indorse. Warranties of a Drawer a) Existence of the payee and his then capacity to indorse b) Engages that upon due presentment that the bill will be accepted or paid, or both according to its tenor.
c) If dishonored by non-acceptance or non-payment he will pay the holder of the bill or to any subsequent indorser who was compelled to pay it, provided the necessary proceedings on dishonor were duly taken. Securities Regulation Code R.A. 8799 - enacted to protect the public from unscrupulous promoters, who stake no business or venture claims without basis and sells shares or interests to investors who are left holding certificate representing nothing more than a claim to a square of the blue sky. - securities transactions are impressed with public interest and are thus subject to public regulation. Protects the public from unsound, fraudulent and worthless securities by: 1. Requiring through a process of registration, issuers of securities, to furnish the public with full and accurate disclosure of all material facts concerning the issuer and its securities, so that the public may make a reasonable business judgment whether or not to invest. 2. Limiting margin and borrowing requirements to prevent undue speculations. 3. Punishing those who manipulatev the market and from misrepresentations, manipulations and fraudulent practices covering securities. *It is self-executory – does not require an issuance of implementing rules from SEC to be valid. Regulatory Control Covered *Regulation of Securities *Registration of Market Participants *Mechanism to ensure sound market *Expanded SEC powers as market regulation Securities and Exchange Commission *A collegial body - composed of a chairman and 4 commissioners - no longer has a quasi-judicial function - must be natural born citizens, majority of whom are lawye rs including the Chairman
- Presence of 3 commissioners shall constitute a quorum. Registration of Securities a) Debt instruments b) Equity instruments c) Investment instruments d) Derivatives e) Trust instruments f) Other instruments as may in the future be determined by the SEC General Rule of Registration: Securities shall not be sold or offered for sale or distribution within the Philippines: a) Without registration statement duly filed with and approved by the SEC b) Prior to such sale, information on the securities in such form and with such substance as SEC may prescribe, shall be made available to each prospective purchaser Folowing securities may be sold without need of registration: a) Exempt securities 1. Issued by or guaranteed by the government or its agents; 2. Issued or guaranteed by the government of any country with which the Philippines has diplomatic relations; 3. Issued by the receiver or by the trustee in a bankruptcy duly approved by an adjudicatory body; 4. Those involving a bank (except its own shares); 5. Those involving sales or transfers under the supervision and regulation of OIC, HLURB, BIR. Tender Offer -
A publicly announced intention by a person acting alone or in consent with other person to acquire equity securities of a public company among others. It affords such minority stckholders the opportunity to withdraw or exit from the company under reasonable terms.
INSURANCE -
Definition
- Characteristics -
Rules on Premiums
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Insurable interest in life/property
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Designation of beneficiary
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Constructive total loss
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Administrative provisions
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Fire insurance
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Third party liability
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No-fault insurance
*Warehouse Receipts Law *Civil Code Provisions Book V *Financial Rehabilitation and Insolvency Act Insurance – a contract whereby the insurer undertakes for a consideration to indemnify against loss, damage or liability arising from an unknown or contingent event. Characteristics: a) Aleatory – There is an element of risk. An aleatory contract is one where the obligation depends upon the concurrence of an uncertain event (fire insurance), or one certain to happen but in an indeterminate time. b) Contract of indemnity – there is an exchange for value, particularly in property insurance. c) Onerous – there is valuable consideration (premium) d) Bilateral – both parties are bound to do something.
e) Formal – insurance contracts are formal and real (not consensual) in nature because a policy needs to be issued and premium paid. Insurance contracts are to be construed liberally in favor of the insured and strictly against the insurer, being a contract of adhesion. Premium – an insurance premium is the consideration paid an insurer for undertaking to indemnify the insured against a specified peril.min fire, casualty and marine insurance, the premium becomes payable as a debt as soon as the risk attaches. Payment of Premium by Check – insurer is liable if the payment is acknowledged by a receipt of premium. Non-payment of premium – non-payment of premiums does not merely suspend but puts an end to an insurance contract since time of payment is peculiarly the essence of the contract. Partial Payment of Premium – partial payment of premium would not make the insurance coverage effective. Expansion of Exceptions to Sec. 77 a. General Rule Credit Accommodation on Premium -
Credit extensions are no longer allowed.
b. When payment of premium by instalments valid: Estoppel -
There are only 2 statutory exceptions to the requirement of payment of the entire premium as a prerequisite to the validity of the insurance contract:
i.
In case of insurance coverage related to life or industrial life (health) insurance when a grace period applies;
ii.
When the insurer makes a written acknowledgment of receipt of premium, this acknowledgment being declared by law to be then conclusive evidence of premium/payment.
iii.
The exception provided for in Phoenix and Makati Tuscany (if the insurer accepted all the instalment payment with intent to honor policy).
c. When full payment of premium expressly stipulated as condition precedent -not similar to the Phoenix ruling since prepayment is made a specific stipulation in the insurance contract. d. Credit accommodation now a clear exception -
When the insurance company has by practice renewed the fire insurance over the years, under a clear credit term arrangement on the payment of premium and the loss occurred during the credit period, and such payment was accepted by the insurer.
Must exist at the time of
Insurable Interest in Life Insurance -
A life insurance policy is a valued policy. Unless the interest of a person insured is susceptible of exact pecuniary measurement.
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Every person has an insurable interest in the life and health of: a. Himself, or his spouse and of his children; b. Any person:
On whom he depends wholly or in part for education or support, or in whom he has a pecuniary interest;
Under legal obligation to him for the payment of money, respecting property or service, of which death or illness might delay or prevent the performance; and
Upon whom whose life any estate or interest vested in him depends.
Insurable interest – is one of the most basic and essential requirements in an insurance contract. It is determined by whether a person will suffer pecuniary loss or damage from its destruction and will suffer. Its existence gives a person the legal right to insure
Insurable Interest in Property Insurance -
Required to exist only at the time of perfection of the contract and the time of loss. Exceptions to the requirement of insurable interest:
a. Insuring two different properties in one policy b. Succession c. Co-owners of insured property d. Co-insurance clause Beneficiaries General Rule : Insured may designate anyone he wishes as beneficiary. Exceptions: 1. Husband cannot designate his concubine as a beneficiary. 2. Cannot designate a public official by reason of the latter’s public office. *The right to designate a beneficiary means the right to change the beneficiary anytime. General Rule: The designation of a beneficiary is revocable. Exception: if there is an express stipulation that it is irrevocable.
Importance of Beneficiary Designation: a) Taxation – if the designation is revocable then it is subject to estate tax. – if the designation is irrevocable, then it is not subject to estate tax. b) Disinheritance – if revocable, then can be removed as beneficiary. – if irrevocable, then cannot be removed as beneficiary. c) Cash surrender value – if revocable, can borrow cash from value without consent of beneficiary. – if irrevocable, cannot borrow from value without consent of beneficiary, the latter must consent to the borrowing. Constructive Total Loss -
When insured exercised the right to abandonment. This may be exercised when the property insured suffers a damage from a marine peril of at least ¾ if insured merely notified insurer of his exercise of right of abandonment, immediately ownership over damaged property passes to insurer once it pays the insured as if there were actual loss.
Requisites: 1) Damage from marine peril 2) Damage caused was ¾ of the value of the item insured 3) Insured abandons the insured item and informs insurer of the abandonment. Administrative Provisions: The Insurance Commission has the authority to regulate the business of insurance and quasi-judicial power over claims and complaints involving any loss, damage, or liability for which an insurer may be answerable under any kind of policy or contract of insurance. In line with its administrative authority the Insurance Commission: 1) Revokes the certificate of authority of the insurance company; and
2) Removal of its officers and directors for violation of the Insurance Code. Fire Insurance – an example of a non-life insurance. It is essentially a contract of indemnity. The insurance company will not be liable for more than the value of property destroyed even if the face value is more than the value of the property insured. a. Open Policy – value appears in the policy only for the purpose of fixing the amount of premium and the maximum liability of the insurer. In case of loss, the insured must prove 2 things:
Value of the property at the time of loss
Loss was due to peril insured against
b. Valued Policy – parties agree in advance how much is the value of the property at the time of loss. Insured only prove that loss was due to peril insured against. c. Running Policy – also known as “successive insurance,” it is used to cover the contents of a store which periodically change, so that the policy continues to cover the replacements of the stock in store as the same are sold.
Third Party Liability -
No car may be registered or its registration renewed without a certificate of cover showing TPL insurance (Secs. 373 to 389). TPL is the only compulsory insurance coverage under the insurance code.
*Insurer’s liability under TPL accrues immediately upon occurrence of injury or event upon which the liability depends, and does not depend on the recovery of judgment by the injured party against the insured. no fault clause – when in a motor accident the following circumstances are present:
Claim for physical injuries
Does not exceed Php 5,000.00
There is a police report
There is a medical certificate
*Insurer must pay as there is no defense, even if insured was negligent. Marine Insurance -
By definition, the term “marine insurance” includes vessels, crafts, cargo, profits, papers, bottomry, respondentice – all exposed to perils of the sea, transit or while awaiting or transhipment including war risk, marine builder’s risk and floater’s risk.
CORPORATION LAW A corporation is an artificial being created by operation of law having the right of succession, and the powers, attributes and properties expressly authorized by law or incidental to its existence. Four Attributes of a Corporation: 1. An artificial being. (“Capacity to contract and transact business”) 2. Created by operation of law (“Creature of the Law”) 3. With right of succession (“Strong juridical personality”) 4. Has powers, attributes and properties expressly authorized by law or incident to its existence (“A creature of limited powers”) Theories on Corporate Existence and Powers: a) Theory of Concession -
A corporation will have no rights and privileges of a higher priority than that of its creator and cannot legitimately refuse to yield obedience to acts of its state organs (Tayag vs. Benguet Consolidated Inc.).
b) Theory of Corporate Business Enterprise or Economic Unit -
Under this theory the Supreme Court has upon a corporation not merely as an artificial being, but more as an aggregation of persons doing business, or an underlying economic unit called the “business enterprise.”
*This is the underlying theory of many of the cases where the Supreme Court applies the doctrine of piercing the veil of corporate fiction, the de
facto corporation and corporation by estoppel doctrines. *Private Corporations cannot be created by specific legislative acts.
Corporate officers are not
Exceptions: 1. Ultra Vires Acts – acts beyond the scope of powers and functions.
1. Separate Juridical Personality -
May bind the corporation if:
Piercing the veil of corporate fiction
Grounds: a) To defeat public convenience
There is estoppel
If there is ratification (Acceptance of benefits)
b) To defend crime, protect fraud, justify wrong c) Alter ego doctrine 2. Fiduciary Duties of Directors and Officers 1. obedience – ultra vires doctrine 2. diligence – best business judgment rule – as long as the directors have acted with good faith and without malice then no matter how disastrous directors cannot be held personally liable. 3. loyalty – Doctrine of Corporate Opportunity Loyalty -
Director/stockholder cannot infringe upon the same business as the corporation
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If found to be violating the Doctrine of corporate opportunity guilty party must account for the profits and will be liable for damages.
Authorized Capital Stock 100 Subscribed 25 Mnemonics – Paid up 25
Pre-emptive Rights
When not available: 1. May be provided in the articles of incorporation 2. if issuance was in consideration of past services 3. if shares are issued in exchange for property Right of First Refusal -
may be provided in the articles of incorporation
or stockholders agreement -
cannot be in by-laws
shares must first be offered to existing stockholders, if more than one agrees to purchase it is to be allocated pro-rata. If no takers then it may be sold to outsiders
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if in a closed corporation the right of first refusal is mandatory! (even if not provided in the articles of incorporation/stockholders agreement)
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if subsequently there is a reduction in the selling price it must be reoffered to existing stockholders before it may be offered to outsiders. No impairment of this is allowed.
Trust Fund Doctrine -
Watered Stock – Shares of stock issued not corresponding to the capital stock of the corporation
Requires 2/3 approval of -
Appraisal rights of minority stockholders – In case of fundamental changes in capital structure:
extending/shortening of corporate life, merger/consolidation, investment in another line of business, declaring stock dividends, increasing capital stock. -
Treasury Shares – outstanding shares of stock that have been reacquired by the corporation
must have unrestricted retained earnings in order to push
through with purchase capital of corporation cannot be used to acquire outstanding
shares as it will impair the trust find doctrine. Before it can be e xercised the corporation must have
Section 80 – Merger and Consolidation *There is a transfer of assets between the absorbed corporation and the surviving corporation. *A member of the board of directors may be replaced even if there is no stockholder’s meeting by the vote of the board of directors the latter can elect a new member for any vacancy in the board. Also it is required that the present board must constitute a quorum. Cumulative Voting -
a minority board of director who was elected through cumulative voting may not be removed in a stockholder’s meeting except for cause. *Powers and Functions of the corporation are exercised by t he
board of directors. Cumulative Suit – need not include all stockholders; they are not indispensable party. – plaintiff is a corporation represented by a stockholder (even if minority stockholder) Requisites:
must be a stockholder at the time of questioned transaction
exhaustion of intra-corporate remedy
damages are recoverable for the corporation
*To determine control of a corporation the basis must be the
common shares. [Gamboa Case]
common shares must be held by 60% Filipino stockholders
*Test for necessity of establishment of GOCC Test of public welfare
To lessen o
ortunit of raft.
Test of economic viability *A corporation is entitled to moral damages for besmirched reputation and damage to goodwill (generally) Foreign Investments Act Sale of all/substantially of assets – correlate to Bulk Sales Law Public corporations Mining companies
cannot operate as a close
corporation Public utilities
(not more than 20
stockholders) Educational institution Stock exchanges Banks Self-dealing director (Sec. 32) -
If a director enters into a contract with the corporation and there is a need for it be voted upon by the board, the self-dealing director’s vote cannot be counted, if by his exclusion quorum cannot be had, it may be presented to the stockholder’s 2/3 vote.
Interlocking Director (Sec. 33) -
If a director owns part of another company in which he is also a director in case of transactions between the corporations, the interlocking director is excluded from the vote of the board of directors (same rule as self-dealing directors)
*Close corporations – corporations that do not have more than 20 stockholders. Right of First Refusal – mandatory
Pre-emptive Right -
Increase in capital stock
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Opening for subscription the unissued portion of existing capital stock
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Disposition of treasury shares
Four Basic Advantages of Corporate Organizations a) Strong juridical personality b) Limited liability c) Centralized management d) Free transferability of units of ownership *A corporation shall exist for a period not exceeding 50 years f rom the date of incorporation unless sooner dissolved or unless said period is extended.
Considered as incorporated upon issuance by the SEC of a certificate of incorporation.
Can be extended but must follow below rules Extension of corporate life cannot be made earlier than
5 years before the end of its original term. There must be an amendment of the articles of incorporation, such amendemtn requires the 2/3 votes of the outstanding capital stocks. Incorporators – at least 5 but not more than 15 NATURAL PERSONS, who must own at least one share of stock in a stock corporation majority of whom are residents of the Philippines. *Capital – refers to the value of the property or assets of a corporation.
Minimum Capital Stock Required of Stock Corporations:
At least 25% of the total authorized capital stock must be subscribed; then 25% of the total subscribed stock must be paid up. capital shouls not be less than P5,000.00. Doctrine of Centralized Management
Paid up
*All corporate powers and prerogatives are vested in the board of directors a) The resolution, contracts and transactions of the board, cannot be overturned or set aside by the stockholders or members and not even by the courts under the principle that the business of the corporation has been left to the hands of the board. b) Directors and duly auhtorized officers cannot be held personally liable for acts or contracts done with the exercise of their business judgment. Exception: When the Corporation Code expressly provides otherwise;
When the directors or officers acted with fraud, gorss
negligence or in bad faith; When the directors or officers acted aginst the corporation in
a conflict of interest situation. In case of mismanagement or abuse of powers, the remedies are: a) Receivership b) Injunction if the act has not yet been done c) Dissolution if abuse amounts to a ground for quo warranto but the Solicitor General refuses to act.
Corporate Officers Immediately after their election, the directors of a corporation must formally organize by the lection of: a) President – who shall be a director. b) Treasurer – who may or may not be a director. c) Secretary – must be a resident and Filipino citizen. d) Such other officers as may be provided for in the By-Laws. *Any two or more positions may be held concurrently by the same person except that no one shall act as President and Secretary or as President and Treasurer at the same time majority of all members of the board.
Corporate officers are elected by a
Types of Ultra Vires Act 1. Those which are outside of the express, implied, or incidental powers of the corporation. 2. Those which are effected by corporate representatives who act without authority (even if contract is within the express/implied/incidental powers of the corporation they represent) 3. Those which are contrary to laws or public policy. Ultra vires – acts performed by the corporation in excess of its corporate powers are ultra vires and are generally binding on the corporation. 1. What is a corporation? -
A corporation is an artificial being created by operation of law, having the right of succession, and the powers, attributes and properties expressly authorized by law or incident to its existence.
2. Separate Corporate Juridical Personality -
A corporation has a personality that is separate and distinct from its individual stockholders or members. Being an officer or stockholder of a corporation does not make ones property also that of the corporation and vice versa. This separate and distinct personality is, however, merely a function in law for conveyance and to promote the ends of justice.
3. What is the Ultra Vires doctrine? -
This is the doctrine which provides that an act performed by the corporation which is in excess of its corporate powers are ultra vires, which are generally not binding on the corporation.
4. What is pre-emptive right? -
A preemptive right is the shareholder’s right to subscribe to all issues or disposition of shares of any class in proportion to his present stockholdings, the purpose bein to enable the shareholder to retain his proportinate control in the corporation and to retain his equity in the retained earnings, and also in the net assets in the event of dissolution.
5. Appraisal Right
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An appraisal right may be exercised by minority stockholders or stockholders who dissented from the following transactions: 1. Extend or shorten corporate term; 2. Restriction of rights and privileges of shares through the amendment of the articles of incorporation; 3. Sale of all or substantially of all corporate assets 4. Equity investment in non-primary purpose business enterprise 5. Merger or consolidation
Derivative Suit Requirements: -
That the person filing the derivative suit was a stockholder or member at the time the acts or transactions subject to the action occurred and at the time the action was filed.
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That he has exerted all efforts to exhaust all remedies available under the articles of incorporation, by-laws, etc.
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No appraisal rights are available for the acts or acts complained of; and
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The suit is not nuisance or harassment suit. Proxies
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Are grants of authority by a stockholder to another stockholder to allowa the latter to vote in all meetings of stockholders. It is generally good only for one meeting but by express stipulation it is possible to extend it for several meetings provided it not longer than 5 years.
Warehouse Receipts Act Warehouseman – one who receives and stores goods of another for compensation *Even if the deposits were made free does not detract from the applicability of the law. Nature and Functions of Warehouse Receipts -
It is a document of title and has the following functions: 1. Proof of the possession or control of the goods described therein; 2. Authorizing or purporting to authorize the possession of the warehouse receipt to transfer or receive either by indorsement or by delivery, of the goods represented by such receipt.
Warehouse Lien: General Rule: By issuing the receipt the warehouseman is estopped from setting up any title or right to the possesion of the goods except when it pertains to the enforcement of his lien. However: the warehouseman has a lien on goods deposited on the proceeds thereof in his hands for all lawful changes and fees. Obligation of Warehouseman -
Under Sec. 8 of the Warehouse Receipts Act the warehouseman is obliged to: deliver the goods upon demand by either the holder of the receipt or by the depositor; when demand accompanied by: a) An offer to satisfy warehouseman’s lien; b) An offer to surrender the duly endorsed negotiable receipt c) A readiness to sign an acknowledgment of delivery, when such is requested by the warehouseman.
TRANSPORTATION LAW Common Carriers -
A person, corporation, firm or association engaged in the business of conveying or transporting passengers or goods or both, by land, water or air for compensation offering their services to the public.
Arrastre -
It is the handling of cargo departed on the wharf or between the establishment of the consignee or shipper and the ship’s tackle. It has technical meaning and mainly refers to overseas trade.
Common Carrier -
Open to the public
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For compensation
Contract of Carriage -
Fiduciary duty of diligence for the safety of the passenger or cargo
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In case of injury or damage there is presumptive proof of negligence which can be overturned by proof of the exercise of extraordinary diligence by the common carrier.
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A commercial contract Cargo – bill of lading
Passenger – ticket
Liability of Carriers -
Extraordinary diligence
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If baggage is entrusted to passenger or the agent of the passenger then liability shall be that of an innkeeper.
Injuries caused by a passenger
Injuries caused by employees of common carrier
Injuries caused by a third party
Causes of Action Arising out of a Negligent Act: -
Culpa contractual – it is the cause of action for the breach of the carrier of the contract of carriage: the obligation of the carrier to convey passengers safely to the point of destination.
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Culpa aquiliana – it is the cause of action for the damage caused by the carrier’s negligent acts.
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Culpa criminal – it is the cause of action that arise upon the commission of a crime by the carrier.
Two (2) Aspects of a Contract of Carriage a) Contract to carry – contract to carry at some future time. b) Contract of carriage – actual carriage is required. Contract of carriage ends: -
The pasenger has been landed at the port of destination and has left the owner’s dock or premises, the reasonable time is to be determined from the circumstances. (Aboitiz Shipping vs. Court of Appeals)
*The common carrier is obliged to carry the passengers safely as far as human care and foresight could provide, using the utmost diligence of a very cautious person, with due regard for all the circumstances (Art. 1755, Civil Code).
Maritime Transportation
if no claim is filed then action
cannot proper *Damage is apparent – claim must be made upon arrival *Damage is not apparent – claim must be made within 24 hours Prescription Period -
If under a bill of lading – 10 years
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If under an oral contract
COGSA (Carriage of Goods by Sea Act) -
Prescriptive Perios is 1 year prospective
Arrival of lost cargo – claim will prosper even if claim is not file ASAP Need to be filed within 1 year! *Liability of owner is limited to value of vessel or proceeds of insurance.
Real and Hypothecary Nature of Liability of Shipowner Exceptions: Where the vessel is insured in Workmen’s Compensation claims where injury was due to negligence of shipowner or master and shipowner concurrently. *New Ruling - The negligence of the ship captain is the negligence of the shipowner – liable for all damages arising out of the tortious acts of employee. Warsaw Convention
*Maximum liability is 500 USD with maximum number of 4 baggage. *Unless a higher valuation is declared and the appropriate fees are paid. *This is not a limitation in liability if the actions are based on tortious actions; damages are also proper. Constructive Total Loss -
Subject to abandonment of vessel by shipowner and insurer must pay the full amount of insurance.
Warranties of -
Vessel of shipowner
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Voyage shall not ndeviate except on conditions allowed by law
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Warranty of neutrality
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Possession of necessary documents
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Presence of insurable interest
Charter Party Contract of Affreightment -
Shipowner remains liable as common carrier.
Demise Charter/ Bareboat Charter -
Charterer is considered as owner pro hac vice and can be held liable for negligence
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Owner hands exclusively command over vessel over to the charterer.
*Leading Case 188 SCRA 387 (1990) [Aboitiz Case] GR 156798 May 2, 2006 [Aboitiz vs. Gen. India] Limited liability cannot be applied where shipowner is presumed negligent. Insurable Interest in Non-Life Insurance
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Insurable interest must exist in theb same person both at the perfection of the contract as well as at the time of loss. In betwee, the effect of insurable interest loss is merely to suspend the policy (Sec.19)
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Contingent interest without any existing interest is not insurable interest (Sec.16)
*Creditor has an insurable interest on the life of the debtor. *Creditor must have an existing interest over property sought to be insured to be considered to have insurable interest. Mortgagor and mortgagee have separate and distinct insurable interests in the same mortgaged property, such that each one of them may insure the property for his own benefit.
In case of loss of
insured mortgaged property there will be legal subrogation. Wherein the insurer will become the new creditor of mortgagor. Exceptions to requiremtn of insurable interest: a) Insuring two different properties in one policy b) Succession (testate or intestate) c) Co-owners of insured property *When there is partial loss, and there is under insurance, under “Standard Policy Stipulation” ther e will be co-insurance
this must be
expressly stipulated if not insurer is liable for full amount of loss. Subrogation – substitution of one person in the place of 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 adebt or claim including its remedies or securities. – contemplates full substitution such that it places the party subrogated in the shoes of the creditor. Compulsory Motor Car Insurance (TPL) -
The only mandatory insurance coverage under the insurance code.
Marine Insurance Main Warranty: “Seaworthiness” – fit to perform service, properly laden, properly equipped and
properly manned. Warranties in Marine Insurance -
Defined as a stipulation, either expressed or implied, forming part of the policy as to some fact, condition or circumstance relating to risk.
Insurable Interest in Marine Insurance a) Shipowner on the vessel eventhough the latter is under a charter party b) Charterer c) If there is concurrence of bottomry loan and insurance covers excess of the value of the vessel over the bottomry loan. d) Freightage e) Profits *All Risk Marine Insurance - an all risk marine insurance policy covers all kinds of loss other than those due to the willfull and fraudulent act of the i nsured. Co-insurance in Marine Insurance Insured shall bear part of the loss when property is insured for less than the value it really has. When there is partial loss, there will always be co-insurance even if there is full coverage. When there is partial loss, under Standard Policy Stipulation, and there was under insurance. Deviation – unjustified deviation will bar recovery in a marine policy 1. Caused by circumstances beyond the control of vessel Deviation is proper 2. To comply with a warranty and may allow for 3. In good faith to avoid a peril 4. In good faith to save a human life or another vessel Concealment – when insured had knowledge of facts material to the risk, and good faith and fair dealing require him to reveal them, and he
fails to do so. Representation – a statement incidental to the contract of insurance relative to some fact having reference thereto and upon the faith of which the contract is entered into. Similarities of concealment and representation:
Both take place before the contract is entered into
Both give rise to the same remedy: discovery of the concealment or misrepresentation before loss or death will entitle the insurer to cancel the policy.
They apply to both life and non-life insurance.
Exceptions: If after 2 years from issuance of policy, the company fails to discover concealment or misrepresentation, any discovery after the 2-year period cannot be a ground for cancelling or refusing to pay. [incontestability clause]
2 years from perfection 2
years from reinstallment Losses 1. Actual Loss 2. Constructive Total Loss – when insured exercises the right of abandonment when a property suffers a damage from a m arine peril of at least ¾. 3. Partial Loss – carries with it co-insurance; owner shall bear part of the loss. Over insurance – when insured insures the same property for an amount greater than the value of the property with the same insurance company. *In case of loss, insurer is bound to pay only to the extent of the proper ty lost. The insured may recover the amount of premium corresponding to the excess in value of the property.
Double Insurance – where ther is over insurance with two or more companies covering the same property, same insurable interest and same risk. Effects of Double Insurance: 1. Insured can recover, before or after loss, from both insurers the excess premium he has paid. 2. In case of loss insurers are liable severally to the extent of their coverage. The insured can recover from any of them or all of them to the extent of his loss.
GENERAL BANKING LAW RA 8791 -
Universal Banks
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Commercial Banks
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Thrift Banks
Savings and Mortgage Bank
Stock Savings and Loans Associations
Privatev Development Bank
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Rural Banks
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Cooperative Banks
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Islamic Banks Banks
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An entity engaged in the lending of funds obtained in the form of deposit. It has the following qualities:
1. It is impressed with public interest; 2. It’s fiduciary obligation, binds it to the highest degree of diligence; 3. GFIs are covered by the highest degree of fiduciary obligations; 4. Highest degree of diligence does not cover transactions outside bank deposits
Bulk Sales Law
