Chapter 4: ANTICHRESIS

Arts. 2132-2139
I. Concept (2132)

Art. 2132. By the contract of antichresis the creditor acquires the right to
receive the fruits of an immovable of his debtor, with the obligation to apply
them to the payment of the interest, if owing, and thereafter to the principal
of his credit. (1881)

 What is ANTICHRESIS?
 By the contract of antichresis, the creditor acquires the right to receive
the fruits of an immovable of his debtor with obligations to apply them
to payment of interest, if owing, and thereafter to the principal of his
credit.
 Note:
 The antichresis is an accessory contract as it secures the performance
of principal obligation.
 It is also formal contract as the amount of principal and interest shall be
specified in writing.

ANTICHRESIS REAL MORTGAGE

Real property is delivered to the Debtor usually retains the
creditor possession of real property
Creditor acquires only rights to Creditor does not have any right
receive the fruits of property to receive the fruits
Creditor is obliged to pay the Creditor has no such obligation
taxes and charges upon the
charges upon the estate unless
there is stipulation to contrary
Its expressly stipulated that the There is no such obligation of the
creditor who is given the mortgagee
possession of property shall
apply all the fruits thereof to the
payment of interest, if owing and
thereafter to principal.

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 RIGHTS OF ANTICHRETIC CREDITOR
1) The right to fruits of the thing
2) Right to retain the thing until the debt is paid
3) Right to have the thing sold upon non-payment at maturity

II. Elements
A. Parties
B. Object
C. Cause
D. Formalities
Art. 2133. The actual market value of the fruits at the time of the
application thereof to the interest and principal shall be the measure of
such application. (n)

 MEASURE OF APPLICATION OF FRUITS

 The actual market value of the fruits at the same time of application
thereof to interest and principal shall be the measure of such
application.

Art. 2134. The amount of the principal and of the interest shall be specified
in writing; otherwise, the contract of antichresis shall be void. (n)

NOTE: Antichresis is an accessory contract thus, even if it is void, principal

obligation may still be valid.

Art. 2135. The creditor, unless there is a stipulation to the contrary, is

obliged to pay the taxes and charges upon the estate.
He is also bound to bear the expenses necessary for its preservation and
repair.
The sums spent for the purposes stated in this article shall be deducted
from the fruits. (1882)

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  OBLIGATIONS OF THE ANTICHRETIC CREDITOR
1) To pay the taxes and charges upon the estate, unless there is
stipulation to the contrary
2) To bear the expenses necessary for preservation and repair
3) To apply all fruits after receiving them, to the payment of interest, if
owing, and thereafter to principal
4) To render an account of the fruits to debtor

Art. 2136. The debtor cannot reacquire the enjoyment of the immovable
without first having totally paid what he owes the creditor.
But the latter, in order to exempt himself from the obligations imposed upon
him by the preceding article, may always compel the debtor to enter again
upon the enjoyment of the property, except when there is a stipulation to
the contrary. (1883

 OBLIGATION OF THE VENDOR

 To pay totally what he owes the creditor.

III. Effects
A. Rights of the antichretic creditor
a. To receive the fruits (2132)
Art. 2132. By the contract of antichresis the creditor acquires the right to
receive the fruits of an immovable of his debtor, with the obligation to apply
them to the payment of the interest, if owing, and thereafter to the principal
of his credit. (1881)

b. Right of foreclosure (2137)

Art. 2137. The creditor does not acquire the ownership of the real estate
for non-payment of the debt within the period agreed upon.
Every stipulation to the contrary shall be void. But the creditor may petition
the court for the payment of the debt or the sale of the real property. In this
case, the Rules of Court on the foreclosure of mortgages shall apply.
(1884a)

NOTE: The principle of pactum commissorium is applicable to contract of

antichresis.

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 REMEDIES OF CREDITOR

1) The creditor may petition the court for the PAYMENT OF THE DEBT
2) The creditor may petition the court for the SALE OF THE REAL
PROPERTY

B. Obligations of the antichretic creditor

a. To bear necessary expenses for preservation
b. To pay the taxes and charges upon the estate
Art. 2138. The contracting parties may stipulate that the interest upon the
debt be compensated with the fruits of the property which is the object of
the antichresis, provided that if the value of the fruits should exceed the
amount of interest allowed by the laws against usury, the excess shall be
applied to the principal. (1885a)

Art. 2139. The last paragraph of Article 2085, and Articles 2089 to 2091 are
applicable to this contract. (1886a)
PLEASE READ:

Art. 2085. The following requisites are essential to the contracts of pledge
and mortgage:
(1) That they be constituted to secure the fulfillment of a principal
obligation;

(2) That the pledgor or mortgagor be the absolute owner of the thing
pledged or mortgaged;

(3) That the persons constituting the pledge or mortgage have the free
disposal of their property, and in the absence thereof, that they be legally
authorized for the purpose.

Third persons who are not parties to the principal obligation may secure the
latter by pledging or mortgaging their own property. (1857)

Art. 2089. A pledge or mortgage is indivisible, even though the debt may
be divided among the successors in interest of the debtor or of the creditor.

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 Therefore, the debtor’s heir who has paid a part of the debt cannot ask for
the proportionate extinguishment of the pledge or mortgage as long as the
debt is not completely satisfied.

Neither can the creditor’s heir who received his share of the debt return the
pledge or cancel the mortgage, to the prejudice of the other heirs who have
not been paid.

From these provisions is expected the case in which, there being several
things given in mortgage or pledge, each one of them guarantees only a
determinate portion of the credit.

The debtor, in this case, shall have a right to the extinguishment of the
pledge or mortgage as the portion of the debt for which each thing is
specially answerable is satisfied. (1860)

Art. 2090. The indivisibility of a pledge or mortgage is not affected by the

fact that the debtors are not solidarily liable. (n)

Art. 2091. The contract of pledge or mortgage may secure all kinds of
obligations, be they pure or subject to a suspensive or resolutory condition.
(1861)

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