Borrower owes lender over money debtor pays his creditor

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Persida Acosta

Persida Acosta

Dear PAO,
My friend who is indebted to a loan shark approached me one day and asked me to help him pay his debt. He told me that the interest is piling up and if he will not pay on time chances are the real estate mortgage he executed will be foreclosed. As a good friend, I lent him money to pay his creditor. Just in case my friend will not pay me, can I collect from him?
Ms. Libra

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Dear Ms. Libra,
You mentioned in your letter that there was a real estate mortgage, which was executed between your friend and his creditor. For purposes of academic discussion, we will assume that the mortgage is valid.

Since it is your friend who requested and asked for your help to pay his debt, it cannot be denied that he owes you whatever amount you paid to his creditor. The same is also true, even if the payment was made without the knowledge or consent of your friend. This is according to Article 1236 of the New Civil Code of the Philippines, which explicitly states:

“Art. 1236. xxx

Whoever pays for another may demand from the debtor what he has paid, except that if he paid without the knowledge or against the will of the debtor, he can recover only insofar as the payment has been beneficial to the debtor.”

It is worthy to note that not only can you recover from your friend the amount you have paid but also you may step into the shoes of his creditor. This means that whatever rights his creditor has insofar as the loan is concerned, the same is transferred to you by way of subrogation. Article 1302 of the New Civil Code of the Philippines, provides:

“Art. 1302. It is presumed that there is legal subrogation: xxx

(2) When a third person, not interested in the obligation, pays with the express or tacit approval of the debtor; xxx”

It is clear from the foregoing that you can recover from your friend the amount you paid to his creditor. In case he fails to pay you back, you may exercise the right to foreclose the real estate mortgage, as if you were the original creditor.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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2 Comments

  1. Atty. Roslee M. Formoso on

    Example; borrower djana was unable to pay ag-nes the lo-an shark, if the dealings are pac-tum comisa-rium agnes goes to jail its illegal. If the events were ordinary mutum there should be a PN and CofM, after the good friend did accomo-tion, he still needs a lot of docs, not automatic. One cannot give something that she does not own, in legal parlance the person who gives what does not belong to him is LEGALLY considered INSANE.

  2. Atty. Roslee M. Formoso on

    In a mutum with a rea-lty as a sec-urity, and when the mort-ga’or fails to pay and his good friend paid, f-closure is not possible there is none sub-rogat’n except with the mo-ney lend, fo-closure , more docs to be execut’d before and after by the mot’ee, motg’ee, mrtg’R, accomo’n par-ties

    Is this pac-tum com-misarium?
    is this regular mutum with coll-aterl?