[G.R. No. 115324. February 19, 2003] PRODUCERS BANK OF THE PHILIPPINES (now FIRST INTERNATIONAL BANK), petitioner, vs. HON. COURT OF APPEALS AND FRANKLIN VIVES, respondents.

FACTS:

Sometime in 1979, private respondent Franklin Vives was asked by his neighbor and friend Angeles Sanchez to help her friend and townmate, Col. Arturo Doronilla, in incorporating his business, the Sterela Marketing and Services (“Sterela” for brevity).  Specifically, Sanchez asked private respondent to deposit in a bank a certain amount of money in the bank account of Sterela for purposes of its incorporation.  She assured private respondent that he could withdraw his money from said account within a month’s time. With this, Mrs. Vivies, Sanchez and a certain Estrella Dumagpi, secretary of Doronilla, went to the bank to open an account with Mrs. Vives and Sanchez as signatories. A passbook was then issued to Mrs. Vives. Subsequently, private respondent learned that part of the money was withdrawn without presentment of the passbook as it was his wife got hold of such. Mrs. Vives could not also withdraw said remaining amount because it had to answer for some postdated checks issued by Doronilla who opened a current account for Sterela and authorized the bank to debit savings.

Private respondent referred the matter to a lawyer, who made a written demand upon Doronilla for the return of his client’s money.  Doronilla issued another check for P212,000.00 in private respondent’s favor but the check was again dishonored for insufficiency of funds.

Private respondent instituted an action for recovery of sum of money in the Regional Trial Court (RTC) in Pasig, Metro Manila against Doronilla, Sanchez, Dumagpi and petitioner.  The RTC ruled in favor of the private respondent which was also affirmed in toto by the CA. Hence this petition.

ISSUE:  WON THE TRANSACTION BETWEEN THE DORONILLA AND RESPONDENT VIVES WAS ONE OF SIMPLE LOAN.

HELD: NO.

A circumspect examination of the records reveals that the transaction between them was a commodatum.  Article 1933 of the Civil Code distinguishes between the two kinds of loans in this wise:

By the contract of loan, one of the parties delivers to another, either something not consumable so that the latter may use the same for a certain time and return it, in which case the contract is called a commodatum; or money or other consumable thing, upon the condition that the same amount of the same kind and quality shall be paid, in which case the contract is simply called a loan or mutuum.

Commodatum is essentially gratuitous.

Simple loan may be gratuitous or with a stipulation to pay interest.

In commodatum, the bailor retains the ownership of the thing loaned, while in simple loan, ownership passes to the borrower.

The foregoing provision seems to imply that if the subject of the contract is a consumable thing, such as money, the contract would be a mutuum.  However, there are some instances where a commodatum may have for its object a consumable thing.  Article 1936 of the Civil Code provides:

Consumable goods may be the subject of commodatum if the purpose of the contract is not the consumption of the object, as when it is merely for exhibition.

Thus, if consumable goods are loaned only for purposes of exhibition, or when the intention of the parties is to lend consumable goods and to have the very same goods returned at the end of the period agreed upon, the loan is a commodatum and not a mutuum.

The rule is that the intention of the parties thereto shall be accorded primordial consideration in determining the actual character of a contract. In case of doubt, the contemporaneous and subsequent acts of the parties shall be considered in such determination.