Banking, Bar Q & A, Corporation Law, Insurance, Mercantile Law

Bar Exam 2016 Suggested Answers in Mercantile Law by the UP Law Complex

What does doing business in the Philippines under the Foreign Investment Act of 1991 mean? (5%)


The phrase “doing business in the Philippines“ under the Foreign Investments Act of 1991 include soliciting orders; service contracts; opening offices, whether called liaison offices or branches; appointing representatives or distributors domiciled in the Philippines or who in any calendar year stay in the country for a period or periods totaling 1802 days or more; participating in the management, supervision or control of any domestic business, firm, entity or corporation in the Philippines; and any other act or acts that imply continuity of commercial dealings or arrangements, and contemplate to that extent the performance of acts or works; or the exercise of some of the functions normally incident to and in progressive prosecution of commercial gain or of the purpose or object of the business organization; provided that passive equity investment shall not be construed as doing business.


Jason is the proud owner of a newly-built house worth P5 Million. As a protection against any possible loss or damage to his house, Jason applied for a fire insurance policy thereon with Shure Insurance Corporation (Shure) on October 11, 2016 and paid the premium in cash. It took the company a week to approve Jason’s application. On October 18, 2016, Shure mailed the approved policy to Jason which the latter received five (5) days later, however, Jason’s house had been razed by fire which transpired a day before his receipt of the approved policy. Jason filed a written claim, with Shure under the insurance policy. Shure prays for the denial of the claim on the ground that the theory of cognition applies to contracts of insurance.

Decide Jason’s claim with reason (5%)


No. What governs insurance contract is the cognition theory whereby the insurance contract is perfected only from the time the applicant came to know of the acceptance of the offer by the insurer. In this case, the loss occurred a day prior to Jason’s knowledge of the acceptance by Shure of Jason’s application. There being no perfected insurance contract, Jason is not entitled to recover from Shure.


The insurance contract may be deemed perfected allowing Jason to recover from Shure if there is a binding note or cover receipt duly issued by Shure to Jason.


ABC Appliances Corporation (ABC) is a domestic corporation engaged in the production and sale of televisions and other appliances. YYY Engineers, a Taiwanese company, is the manufacturer of television and other appliances from whom ABC actually purchases appliances. From 2000, when ABC started doing business with YYY, it has been using the mark “TTubes” in the Philippines for the television units that were bought from YYY. In 2015, YYY filed a trademark application for “ITubes”. Later, ABC also filed its application. Both claim the right over the trademark “TTubes” for television products. YYY relies on the principle of “first to file” while ABC involves the “doctrine of prior use”

(A) Does the fact that YYY filed its application ahead of ABC mean that YYY has the prior right over the trademark? Explain briefly. (2.5%).

(B) Does the prior registration also mean a conclusive assumption that YYY Engineers is in fact the owner of the trademark “TTubes” Briefly explain your answer. (2.5%)


(A) No. Since YYY is not the owner of the trademark, it has no right to apply for registration. Registration of trademark, by itself, is not a mode of acquiring ownership. It is the ownership of a trademark that confers the right to register the same (Birkenstock Orthopaedia GMBH v. Philippine Shoe Expo Marketing Corporation, G.R. No. 194307, November 20, 2013).

(B) No. Registration merely creates a prima facie presumption of the validity of the registration of the registrant’s ownership of the trade mark and the exclusive right to the use thereof. The presumption of ownership accorded to a registrant is rebuttable and must yield to evidence to the contrary.


X’s “MINI-ME” burgers are bestsellers in the country. Its “MINI-ME” Logo, which bears the color blue, is a registered mark and has been so since the year 2010. Y, a competitor of X, has her own burger which she named “ME-TOO” and her logo thereon is printed in bluish-green. When X sued Y for trademark infringement, the trial court ruled in favor of the plaintiff by applying the Holistic Test. The court held that Y infringed on X’s mark since the dissimilarities between the two marks are too trifling and frivolous such that Y’s “ME-TOO,” when compared to X’s “MINI-ME,” will likely cause confusion among consumers.

Is the application of the Holistic Test correct? (5%)


The application of the Holistic Test is not correct. In cases involving burger products, the Supreme Court has consistently applied the dominancy test. Under the dominancy test, the focus is on the dominant feature of the competing trademarks. Big Mak has been held to be confusingly similar with Big Mac and so with McDo and Mcjoy both under the dominancy test. Accordingly, MINI-ME trademark is confusingly similar with the ME-TOO mark (McDonald’s Corporation v. LC Big Mak Burger, Inc., G.R. No. 143993, August 18, 2004).


MS Brewery Corporation (MS) is a manufacturer and distributor of the popular beer “MS Lite.” It faces stiff competition from BA Brewery Corporation (BA) whose sales of its own beer product, “BA Lighter,” has soared to new heights. Meanwhile, sales of the “MS Lite” decreased considerably. The distribution and marketing personnel of MS later discovered that BA has stored thousands of empty bottles of “MS Lite” manufactured by MS in one of its warehouses. MS filed a suit for unfair competition against BA before the Regional Trial Court (RTC). Finding a connection between the dwindling sales of MS and the increased sales of BA, the RTC rules that BA resorted to acts of unfair competition to the detriment of MS. Is the RTC correct? Explain. (5%)


The RTC is not correct. Hoarding, or the act of accumulating empty bottles to impede circulation of the bottled product, does not amount to unfair competition. BA did not fraudulently “pass off ” its product as that of MS Lite. There was no representation or misrepresentation on the part of BA that would confuse or tend to confuse its goods with those of MS Lite (Coca Cola Bottlers Philippines v. GOMEZ, G.R. No. 154491, November 14, 2008).


Nautica Shipping Lines (Nautica) bought a second hand passenger ship from Japan. It modified the design of the bulkhead of the deck of the ship to accommodate more passengers. The ship sunk with its passengers in Tablas Strait due to heavy rains brought by the monsoon. The heirs of the passengers sued Nautica for its liability as a common carrier based on the reconfiguration of the bulkhead which may have compromised the stability of the ship. Nautica raised the defense that the monsoon is a fortuitous event and, at most, its liability is prescribed by the Limited Liability Rule. Decide the reasons. (5%)


The limited liability rule will not apply in this case because there was contributory negligence on the part of the ship owner. The reconfiguration of the bulkhead of the deck of the ship to accommodate more passengers made the vessel unseaworthy (Philippine American General Insurance Company v. Court of Appeals, G.R. No. 116940, June 11, 1997, 273 SCRA 262).


Monsoon rain have been jurisprudentially considered as force majeure. It being the cause of the accident, the ship owner should not be liable. Reconfiguration of the bulk head to accommodate more passengers per se does not amount to contributory negligence which will bar the ship owner to claim the defense of force majeure provided that it exercised due diligence before, during and after the incident to prevent loss or injury.


A railroad tract of the Philippine National Railway (PNR) is located near a busy intersection of Puyat Avenue and Osmeña Highway. One afternoon, the intersection was heavily congested, as usual. Juan, the driver of a public utility jeepney (PUJ), drove onto the railroad tracts but could go no farther because of the heavy traffic as the intersection. After the jeepney stopped right on the railroad tract, it was hit and overturned by a PNR train, resulting in the death of Kim, a passenger of the PUJ, and injuries to Juan and his other passengers. Juan, the injured passengers and Kim’s family sued the PNR for damages for its negligence. It was established that the steel pole barrier before the track was broken, and that the PNR had the last clear chance of avoiding the accident. On the other hand, the PNR raised the defense that the track is for the exclusive use of the train and that motorists are aware that it is negligence per se to stop their vehicles on the tracks. Decide the case and explain. (5%)


PNR should be held liable. PNR had the last clear chance of avoiding the injury but did not exercise the diligence expected of it under the circumstances.


Since the PUJ was guilty of contributory, negligence, it should be held solidarily liable with PNR consistent with jurisprudence that the tortfeasor and the common carrier are solidarily liable in case of death or injury to passengers of the carrier.


In 2015, Total Bank (Total) proposed to sell to Royal Bank (Royal) its banking business for P10 billion consisting of specified assets and liabilities. The parties reached an eventual agreement, which they termed as “Purchase and Assumption (P&A) Agreement,” in which Royal would acquire Total’s specified assets and liabilities, excluding contingent claims, with the further stipulation that it should be approved by the Bangko Sentral ng Pilipinas (BSP), BSP imposed the condition that Total should place in escrow P1 Billion to cover for contingent claims against it. Total complied. After securing the approval of the BSP, the two bank signed the agreement. BSP thereafter issued a circular advising all banks and non-bank intermediaries that effective January 1, 2016, “the banking activities of Total Bank and Royal Bank have been consolidated and the latter has carried out their operations since then.”

(A) Was there a merger and consolidation of the two banks in point of the Corporation Code? Explain. (2.5%)

(B) What is meant by a de facto merger? Discuss. (2.5%)


(A) There was no merger or consolidation of the two banks from the viewpoint of the Corporation Code. The Supreme Court ruled in Bank of Commerce v. Radio Philippine Network, Inc. (G.R. No. 195615, April 21, 2014), that there can be no merger if the requirements and procedure for merger were not observed and no certificate of merger was issued by the SEC.

(B) De facto merger means that a corporation called the Acquiring

Corporation acquired the assets and liabilities of another corporation in exchange for equivalent value of shares of stock of the Acquiring Corporation.


X insured his life for P20 million. X, plays golf and regularly exercises everyday, hence is considered in good health. He did not know, however, that his frequent headaches is really caused by his being hypertensive. In his application for a life insurance for himself, he did not put a check to the question if he is suffering from hypertension, believing that because of his active lifestyle, being hypertensive is remote possibility. While playing golf one day, X collapsed at the fairway and was declared dead on arrival at the hospital. His death certificate stated that X suffered a massive heart attack.

A) Will the beneficiary of X be entitled to the proceeds of the life insurance under the circumstances, despite the non-disclosure that he is hypertensive at the time of application? (2.5%)

(B) If X died in an accident instead of a heart attack, would the fact of X’s failure to disclose that he is hypertensive be considered as material information? (2.5%)


(A) No, the beneficiary of X is not entitled to the proceeds of the life insurance. The hypertension of X is a material fact that should have been disclosed to the insurer. The concealment of such material fact entitles the insurer to rescind the insurance policy.


(A) X’s beneficiary should be entitled to the proceeds of the life insurance as there was good faith on the part of the insured for the non disclosure since the insured was not aware of his hypertension.


(B) It is still a material information. It is settled that the insured cannot recover even though the material fact not disclosed is not the cause of the loss.


After securing a P1 million loan from B, A drew in B’s favor a bill of exchange with C as drawee. The bill reads:

October 1, 2016.

Pay to the order of B the sum of P1 million.

To: C (drawee). Signed, A.

A then delivered the bill to B who, however, lost it. It turned out that it was stolen by D, B’s brother. D lost no time in forging B’s signature and negotiated it to E who acquired it for value and in good faith:

May E recover on the bill from C, the drawee? Explain. (5%)


E cannot recover from C, the drawee. The forged endorsement of B did not result in transfer of title in favor of E as no right can be acquired under such forged endorsement.


The drawee is not liable because it did not accept the instrument. Under Section 62 of the Negotiable Instruments law, the drawee can only be liable if he accepts the instrument.


Royal Links Golf Club obtained a loan from a bank which is secured by a mortgage on a titled lot where holes 1, 2, 3 and 4 are located. The bank informed the Board of Directors that if the arrearages are not paid within thirty (30) days, it will extra-judicially foreclose the mortgage. The Board decided to offer to the members 200 proprietary membership shares, which are treasury shares, at the price of P175,000.00 per share even when the current market value is P200,000.00.

In behalf and for the benefit of the corporation, Peter, a stockholder, filed a derivative suit against the members of the Board for breach of trust for selling the shares at P25,000.00, lower that its market value, and asked for the nullification of the sales and the removal of the board members. Peter claims the Club incurred a loss of P5 million. The Board represented the defense that in its honest belief any delay in the payment of the arrearages will be prejudicial to the club as the mortgage on its assets will be foreclosed and the sale at the lower price is the best solution to the problem. Decide the suit and explain. (5%)


The derivative suit will not prosper, because while it was filed by a stockholder on behalf of the corporation, the complaint did not allege the other elements of derivative suit namely; a) exhaustion of intra-corporate remedies available under the articles of incorporation, by-laws and rules and regulations governing the corporation to obtain the relief the stockholder desires; b) it is not a nuisance suit; and c) appraisal right is not available (Ching v. Subic Bay Golf and Country Club, G.R. No. 174353, September 10, 2014).


The derivative suit will not prosper, because there was no wrongful act on the part of the board of directors. In accordance with the business judgment rule since the board of directors passed the resolution in good faith to prevent the foreclosure on the mortgage on the assets of the corporation, the court cannot review the decision of the board of directors even if the selling price is less than the market value of the shares (Montelibano v. Bacolod Murcia Milling Company, G.R. No. L-15092, May 18, 1962).


X owns 10,000 shares in Z Telecoms Corp. As he is in immediate need of money, he offered to sell all his shares to his friend, Y, at a bargain price, Upon receipt of the purchase price from Y, X proceeded to indorse in blank the certificates of shares and delivered these to Y. The latter then went to the corporate secretary of Z Telecoms Corp. and requested the transfer of the shares in his name. The corporate secretary refused since X merely indorsed the certificates in blank to Y. According to the corporate secretary, the certificates should have been specifically indorsed to the purchaser, Y. Was the corporate secretary justified in declining Y’s request? Discuss. (5%)


The Corporate Secretary is not justified in declining Y’s request. Under Section 63 of the Corporation Code, shares of stock covered by a stock certificate may be transferred by the delivery of the certificate endorsed by the stockholder-owner or his authorized representative or other person legally authorized to make the transfer. The endorsement need not be specifically in favor of the purchaser.


C Corp. is the direct holder of 10% of the shareholdings in U Corp., a non-listed (not public) firm, which in turn owns 62% of the shareholdings in H. Corp., a publicly listed company. The other principal stockholder in H Corp. is C Corp. which owns 18% of its shares. Meanwhile, the majority stocks in U Corp. are owned by B Corp. and V Corp: at 22% and 30% respectively. B Corp. and V Corp. later sold their respective shares in U Corp. to C Corp., thereby resulting in the increase of C Corp’s. interest in U Corp., whether direct or indirect, to more than 50%.

(A) Explain the Tender Offer Rule under the Securities Regulation Code. (2.5%)

(B) Does the Tender Offer Rule apply in this case where there has been an indirect acquisition of the shareholdings in H Corp. by C Corp? Discuss. (2.5%)


(A) A Tender Offer Rule means a publicly announced intention by a

person acting alone or in concert with other persons to acquire the outstanding equity securities of a public company or outstanding equity securities of an associate or related company of such public company which controls said public company (Section 19.1.8 of the SRC implementing Rules and Regulations).

(B) Yes, the mandatory Tender Offer Rule is still applicable even if the acquisition, direct or indirect, is less than 35% when the purchase would result in direct or indirect ownership of over 50% of the total outstanding equity securities of a public company (Cemco Holdings v. National Life Insurance Company of the Philippines, G.R. No. 171815, August 7, 2007).


X, a government official, has a number of bank accounts in T Bank containing millions of pesos. He also opened several trust accounts in the same bank which specifically covered the placement and/or investment of funds. X was later charged with graft and corruption before the Sandiganbayam (SB) by the Ombudsman. The Special Prosecutor filed a motion praying for a court order authorizing it to look into the savings and trust accounts of X in T Bank. X opposed the motion arguing that the trust accounts are not “deposits” under the Law on Secrecy of Bank Deposits (Rep. Act No. 1405). Is the contention of X correct? Explain. (5%)


The contention of X is not correct. Deposits in the context of the Secrecy of Philippine currency deposits include deposits of whatever nature and kind. They include funds deposited in the bank giving rise to creditor-debtor relationship, as well as funds invested in the bank like trust accounts (Ejercito v. Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006).


ABC Corp. is engaged in the pawnshop business involving cellphones, laptops and other gadgets of value. In order to expand its business and attract investors, it offered to any person who invests at least P100,000.00 a “promissory Note” where it obligated itself to pay the holder a 50% return on investment within one month. Due to the attractive offer, many individuals invested in the company but not one of them was able to realize any profit after one month.

Has ABC Corp. violated any law with its scheme? Explain. (5%)


Yes, ABC Corporation violated the provisions of the Securities Regulation Code that prohibits sale of securities to the public, like promissory notes, without a registration statement filed with and approved by the Securities and Exchange Commission.


Henry is a board director in XYZ Corporation. For being the “fiscalizer” in the Board, the majority of the board directors want him removed and his shares sold at auction, so he can no longer participate even in the stockholders’ meetings. Henry approaches you for advice on whether he can be removed as board director and stockholder even without cause. What is your advice? Explain “amotion” and the procedure in removing a director. (5%)


Henry cannot be removed by his fellow directors. The power to remove belongs to the stockholders. He can only be removed by the stockholders representing at least 2/3 of the outstanding capital stock in a meeting called for that purpose. The removal may be with or without cause except that in this case, the removal has to be with cause because it is intended to deprive minority stockholders of the right of representation. Amotion is the premature ousting of a director or officer from his post in the corporation.

[NB: The committee recommends that the examinees be given outright credit for the question on amotion regardless of the answer as this concept is hardly taken up in law school. It is also requested that the examiner be liberal in checking the answers given the relative difficulty of the questions]


PJ Corporation (PJ) obtained a loan from ABC Bank (ABC) in the amount of P10 million for the purchase of 100 pieces of ecodoors. Thereafter, a Letter of Credit was obtained by PJ against such loan. The beneficiary of the Letter of Credit is Scrap Metal Corp. (Scrap Metal) in Beijing, China. Upon arrival of 100 pieces of ecodoors, PJ executed a Trust Receipt in favor of ABC to cover for the value of the ecodoors for its release to PJ. The terms of the Trust Receipt is that any proceeds from the sale of the ecodoors will be delivered to ABC as payment. After the ecodoors were sold, PJ, instead of paying ABC, used the proceeds of the sale to order from Scrap Metal another 100 pieces of ecodoors but using another bank to issue a new Letter of Credit fully covered by such proceeds. PJ refused to pay the proceeds of the sale of the first set of ecodoors to ABC, claiming that the ecododors that were delivered were defective. It then instructed ABC not to negotiate the Letter of Credit that was issued in favor of Scrap Metal.

(A) Explain what is a “Letter of Credit” as a financial device and a “Trust Receipt” as a security to the Letter of Credit. (2.5%).’

(B) As counsel of ABC, you are asked for advice on whether or not to grant the instruction of PJ. What will be you advice? (2.5%)


(A) A letter of credit is any arrangement however named or described whereby a bank acting upon the request of its client or on its behalf agrees to pay another against stipulated documents provided that the terms of the credit are complied with (Section 2 of the Uniform Customs and Practices for Documentary Credit).

A trust receipt is an arrangement whereby the issuing bank (referred to as the entruster under the trust receipt) releases the imported goods to the importer (referred to as the entrustee) but that the latter in case of sale must deliver the proceeds thereof to the entruster up to the extent of the amount owing to the entruster or to return the goods in case of non-sale.


(A) Under the Code of Commerce, letters of credit are those issued by one merchant to another for the purpose of attending to a commercial transaction. The letter of credit should be issued in favor of a definite person and not to order and be limited to a fixed and specified amount, or to one or more determined amounts but within a maximum the … limits of which has to be stated exactly (Articles 567 and 568 of the Code of Commerce).


(B) I will not grant the instruction of PJ. Under the independence principle,

the obligation of the bank to pay the Scrap Metal Corporation is not dependent upon the fulfillment or non-fulfillment of the main contract underlying the letter of credit but conditioned only on its submission of the stipulated documents to ABC Bank.


B Bank, a large universal bank, regularly extends revolving credit lines to business establishments under what it terms as socially responsible banking and private business partnership relations. All loans that are extended to client have a common “Escalation Clause,” to wit: “B Bank hereby reserves its right to make successive increases in interest rates in accordance with the bank’s adopted policies as approved by the Monetary Board; provided that each successive increase shall be with the written assent of the depositor.”

(A) X, a regular client of the bank, contends that the “Escalation Clause” is unfair, unconscionable and contrary to law, morals, public policy and customs. Rule on the issue and explain. (2.5%)

(B) Suppose that the “Escalation Clause” instead reads: “B Bank hereby reserves the right to make reasonable increases in interest rates in accordance with bank policies as approved by the Monetary Board; Provided, there shall be corresponding reasonable decreases in interest rates as approved by the Monetary Board.” Would this be valid? Explain. (2.5%)


(A) The “escalation clause” is valid because each successive increase shall be with the written assent of the depositor. This stipulation does not violate the principle of mutuality of contracts. The stipulation would have been void if the supposed consent is given prior to the increase in interest rate.

(B) An escalation clause with a de-escalation clause is valid provided that the client’s consent is still secured prior to any increase in interest  rate otherwise, the escalation clause is void.


In 2015, R Corp., a domestic company that is wholly owned by Filipinos – files its opposition to the applications for Mineral Production Sharing Agreements (MPSA) of O Corp., P Corp., and Q Corp. which were pending before the Panel of Arbitrators (POA) of the Department of Environmental and Natural Resources (DENR). The three corporations ” * wanted to undertake exploration and mining activities in the province of Isabela. The oppositor alleged that at least 60% of the capital share holdings of the applicants are owned by B Corp., a 100% Chinese corporation, in violation of Sec. 2, Art. Xll of the Constitution. The applicants countered that they are qualified corporations as defined under the Philippine Mining Act of 1995 and the Foreign Investments Act of 1991 since B Corp. holds only 40% of the capital stocks in each of them and not 60% as alleged by R Corp.

The summary of Significant Accounting policies statement of B Corp. reveals that the joint venture agreement of B Corp. with Sigma Corp. and Delta Corp. involve the O Corp., P Corp., and Q Corp. The ownership of the layered corporations and joint venture agreements show that B Corp. practically exercises control over the O, P and Q corporations contend that the control test should be applied and its MPSA applicants granted. On the other hand, R Corp, argues that the “grandfather rule” should be applied. Decide with reasons. (5%)


The grandfather rule should apply. The Supreme Court held in a similar case that even though on paper the capital shareholding in a mining company is 60% owned by Filipinos and 40% by foreigners, if there is a doubt as to the locus of the beneficial ownership and control, the grandfather rule should apply. Based on the facts, B Corporation, a Chinese corporation, practically exercises control over O, P and Q Corporations. Such circumstance creates a doubt as to where control and beneficial ownership reside that warrants application of the grandfather rule (Narra Nickel Mining and Development Corporation v. Redmont Consolidated Mines Corp., G.R. No. 195580, April 21, 2014).


Company X issues a Bank A Check No. 12345 in the amount of P500,000.00 payable to the Bureau of Internal Revenue (BIR) for the company’s taxes for the third quarter of 1997. The check was deposited with Bank B, the collecting bank with which the BIR has an account. The check was subsequently cleared and the amount of P500,000.00 was deducted from the company’s balance. Thereafter, Company X was notified by the BIR of its non-payment of its unpaid taxes despite the P500,000.00 debit from its account. This prompted the company to seek assistance from the proper authorities to investigate on the matter.

The results of the investigation disclosed that unknown then to Company X, its chief accountant Bonifacio Santos is part of a syndicate that devised a scheme to siphon its funds. It was discovered that though deposited, the check was never paid to the BIR but was passed on by Santos to Winston Reyes, Banks B’s branch manager and Santos’ co-conspirator. Instead of bringing the check to the clearing house, Reyes replaced Check No. 12345 with a worthless check bearing the same amount, and tempered documents to cover his tracks. No amount was then credited to the BIR. Meanwhile, check No. 12345 was subsequently cleared and the amount therein credited into the account of fictitious persons, to be later withdrawn by Santos and Reyes.

Company X then sued Bank B for the amount of P500,000.00 representing the amount deducted from its account. Bank B interposed the defense that Company X was guilty of contributory negligence since its confidential employee Santos was an integral part of the scheme to divert the proceeds of Check No. 12345. Is Company X entitled to reimbursement from Bank B, the collecting bank? Explain. (5%)


Yes, Company X is entitled to reimbursement from the collecting bank. – In a similar case, the Supreme Court ruled that the drawer could recover the amount deducted from its account because it failed to ensure that the check be paid to the designated payee, while the collecting bank should share 1/2 of the loss because its branch manager conspired in the fraud (Philippine Commercial International Bank v. Court of Appeals, G.R. No. 121413, January 29, 2001, 350 SCRA 446).

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