Where only a portion of a loan is released 3 Where theres a failure of

Where only a portion of a loan is released 3 where

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Where only a portion of a loan is released 3. Where there’s a failure of consideration 4. Where there is no debtor-creditor relationship because indivisibility only arises when there’s a debtor-creditor relationship 5. Where the benefit of indivisibility is waived – can be waived because indivisibility is NOT an essential characteristic of a mortgage Foreclosure of mortgage constituted on several properties - Rule that real property, which is consisting in several lots, should be sold separately is NOT applicable to foreclosure of mortgages, only to sales in execution o Thus, you can mortgage real property consisting in several lots, as one and indivisible. - Mortgage, even if constituted on two or more properties, is still one and indivisible mortgage = cannot be divided among different properties o Mortgagee has the right to have the properties, either or both, to satisfy his claim - Doctrine of indivisibility of mortgage doesn’t apply once the mortgage is extinguished already by foreclosure. Where real mortgage and chattel mortgage is in one instrument = doesn’t fuse both securities into one indivisible whole - Both remain distinct from each other - Illustration: mortgagee may legally foreclose the real estate mortgage extrajudicially and waive the chattel mortgage foreclosure, and maintain a personal action for the unpaid balance of the credit Art. 2091 Contract of pledge or mortgage may secure ALL kinds of obligations; pure/conditional (suspensive/resolutory) Art. 2092 A promise to constitute a pledge/mortgage gives rise to a personal action between the contracting parties only Without prejudice to the criminal responsibility incurred by him who defrauds by offering in pledge or mortgage as unencumbered, things which he knows were encumbered or by misrepresenting himself to be the owner of the property pledged or mortgaged Promises to constitute pledge or mortgage creates no real right 4
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- What exists is only a right of action to compel fulfillment of promise but tbere is no pledge or mortgage yet Criminal responsibility of pledge or mortgagor - Fraud or deceit is executed upon the vendee at the time of the sale CHAPTER 2: PROVISIONS APPLICABLE TO PLEDGE ONLY Art. 2093 In order to constitute a pledge, In addition to the requisites in Art. 2085, the thing pledged must be in the possession of the creditor or of a third person by common agreement What is a pledge - Debtor delivers to the creditor (or 3 rd person by common agreement) - a (1) movable property which can be appropriated or (2) a document evidencing incorporeal rights, - for the purpose of securing the fulfillment of an obligation - with the understanding that once the obligation is fulfilled, the thing will be returned (along with its fruits and accessions if applicable) Kinds of pledge 1. Voluntary/Conventional – created by agreement 2. Legal – created by operation of law Characteristics of a pledge 1. Real – perfected by delivery 2. Unilateral - creates an obligation on the part of creditor to return thing upon fulfillment of obligation a.
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