E - March 4 Lecture Flashcards
March 4 - Lecture
March 4 - Lecture
judicial remedies
principal
- immediately filed in court without need of p
[subsidiary]
- only filed if all principle remedies has been exhausted but to no avail.
- like accion pauliana
anciliary
- ex you want to foreclose a chattel (ex. car
enumerate the judicial remedies
Principal
- specific, subtitute, equivalent
- rescission
Subsidiary
- Accion subrogatoria
- Accion Pauliana
Ancillary
- Repelvin
- Attachment
- Garnishment
give an example of accion pauliana
john owes money to creditor bank A. In order that Creditor will not be defrauded by any attempt, creditor files an accion pauliana to ensure that the other assets of John will not be transferred to anybody thus the accion pauliana revokes the transfer
accion subrogatoria
a remedy where the creditor who has paid the debt of the debtor subrogrates and takes the place of the original creditor and pursue the debtor for repayment
Let’s say Sarah owes a debt to Bank B, and her friend Alice steps in to pay off Sarah’s debt to the bank. After making the payment, Alice acquires the right to file an Accion Subrogatoria against Sarah to recover the amount paid to the bank. If successful, Sarah would be obligated to reimburse Alice for the amount she paid on Sarah’s behalf.
requisites of accion subrogatoria
- creditor has a right of credit against the debtor [although at the moment it is NOT lidquidated]
- credit must be due & demandable
- there must be failure of the debtor to collect from third persons (debtor of the debtor), whether willfully or thru negligence
- the assets in the hands of the debtor are insufficient -
- the right and actions are NOT purely personal or inherent in the person of the debtor
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[on 3 why 3rd person owes to debtor]
- For example, let’s say Adam provides consulting services to various clients. If one of Adam’s clients, let’s call him Charlie, fails to pay for the services rendered by Adam, Charlie incurs a debt to Adam. This debt is separate from any obligations Charlie may have to other parties.
- Now, if Adam owes a debt to Bank B but lacks sufficient assets to satisfy that debt, Bank B may invoke Accion Subrogatoria to step into Adam’s shoes and pursue Charlie for the debt owed to Adam. However, for Accion Subrogatoria to apply, Adam must have made reasonable efforts to collect the debt from Charlie himself. If Adam fails to do so, either due to neglect or willful actions, Bank B can then pursue Charlie directly.
[on 5th]
- the actual subrogation, the creditor of the debtor steps into his shoes to get financial claims or assets that the debtor may have against third parties
requisites of accion pauliana
note
can only be availed after exhausting the remedy of specific performance then after the sheriff informs that the judgment cannnot be satisfied, then the creditor can now avail of accion paulaian
- plaintiff asking for rescission, has a credit prior to alienation altho demandable later
- debtor made subsequent contract conveying patrimonial benefit to a third person
- creditor has NO OTHER legal remedy to satisfy his claim but would benefit from the rescission of the conveyance of the third person
- that the act being impugned(questioned) is fraudulent
- third person who received the conveyed property has been an accomplice in the fraud if by onerious title
creditor failed a case for collection before the stipulated date, the debtor then disposed of his assets (sold his mansion to a cousin) so that if the judgment is against him, no property will be attached or executed.
Contract of selling his mansion to his cousin is RECESSIBLE.
If after filing a collection case and judgment is against the defendant (debtor) and the sheriff will make a return/report saying that the judgment cannot be satisifed saying debtor has no property or money
THEN THAT’S THE ONLY TIME YOU CAN FILE THE ACCION PAULIANA
same with accion subrogatoria -
unlike real estate mortgage, you can file even if you are not in possession of the property.
in chattele case, you can’t file a case unless the bank is in possession of the bank. that’s why before chattel, there has to be a REPLEVIN
fortclosure mortgage - close the property and sell it in a public auction to satsify the judgment
replevin is both anciliiary and principla remedy depending on the action
where parties agreed that extrajudicial recession is only treated as provisional since the idea of receission is the aggrieved party cannot take the law into his own handsand the court can do somehting on the alleged breach it’s not the aggrieved to sya that there is immediately substantial breach
ALWAYS put extrajudicial recission clause in practice
Campo Assets vs Club X.O.: When parties to a contract expressly reserve an option to terminate or rescind a contract, notice of resolution must be given to the other party when such right is exercised. Resort to courts may be necessary when the right involves the retaking of property which is not voluntarily surrendered by the other party.
you need judicial order if you want the other party to return what has been received
Phil. National Construction Corp vs Mars Construction: The act treating a contract as cancelled or rescinded is always PROVISIONAL, that is, it is CONTESTABLE AND SUBJECT TO JUDICIAL DETERMINATION. Judicial action is necessary for its rescission in order to afford the other party opportunity to be determine the propriety of the rescission. (see also Goldenroad Inc vs CA)
difference between contract to sell and contract to sale
transfer of ownership
judiciall rescind a contract to sell (this is an obligation treated with a suspensive condition which is the full payment)
NOT contract of sale
Pangilingan vs CA: where ownership of the property is retained with the seller, as in a Contract to Sell (vs. Contract of Sale or Absolute Sale) with reserved title, and subjects it merely to a positive suspensive condition (payment), EXTRAJUDICIAL RESCISSION may be validly agreed upon in the contract and this has been the practice many years already.
disting
- contract to sell
- conditional contract of sale
- contract of sale
contrct to sell - seller retinas ownership of the property until full payment. such payment being a positive supsensive conditions (condition to compel seller to transfer ownersship to buyer).
- reelvant if property is physically delivered to the buyer
(car delivered to buyer but it’s contract to sell so subject to full payment, what action will you file for the purpose - here there is NO transfer of ownership
- here, you have to execute deed of absolute sale (not automatic)
conditional contract of sale - while the seller already agrees to transfer ownership of the property sold, but the tgransfer of ownership of the property is subject to fuure condition of full pyament. it is only upon full pyament that ownership is autmoatically transferred to the buyer
- here the seller, upon the fulfilment of a condition, transfer of ownership is AUTOMATICALLY happened
contract of sale, seller already transfers ownership of the property to the buyer upon delivery (actual or constructive; execution of notarized DOAS if real property) thereof. It is understood, however, that if the buyer fails to fully pay the purchase price, the contract of sale may by judicially rescinded for non-payment of the purchase price
- the ownership has been transferred but can be *rescind, the cause of action is recover of OWNERSHIP
car delivered to buyer but it’s contract to sell so subject to full payment, what action will you file for the purpose
which of the causes of action is appropriate
1. recover of possession of motor
2. recovery of ownership of motor
[1.]
because number 2’s transfer of ownership had not happened yet.
