Short answer. No. Article 1879 of the Civil Code is unambiguous: a special power to mortgage does not include the power to sell. Authorizing your agent to mortgage your land means exactly that — the authority to mortgage, nothing more. Any sale he purports to make falls completely outside the power you granted.
What the law says
a special power to mortgage does not include the power to sell.
Civil Code, Article 1879 — Sell vs. Mortgage. Read the full provision →
The rule leaves no room for argument
Article 1879 of the Civil Code draws a bright line: a special power to mortgage does not include the power to sell. These are two separate and distinct acts, and the authority to do one does not imply the authority to do the other. A mortgage creates a lien on the property — the owner retains title and the right to redeem; the property can still return fully to the owner. A sale permanently transfers ownership. Because the consequences are so different, the law does not allow the lesser power to carry the greater one.
Why the law separates these powers strictly
The policy behind Article 1879 is the protection of property owners from unauthorized dispositions by their agents. Agency authority is construed strictly when it involves acts of disposition — particularly selling property. An owner who gives a mortgage authority likely needs funds secured by the property but intends to keep it. Allowing an agent to interpret that authority expansively to include a full sale would expose the principal to a permanent loss of property based on an authority that was never intended to go that far. The law resolves all ambiguity in favor of the principal: what is not expressly granted is not included.
What happens if your agent sells despite having only mortgage authority
A sale made by an agent who holds only a mortgage power is made without authority. Generally, an unauthorized act done in the principal's name does not bind the principal unless the principal ratifies it afterward. The purported buyer does not acquire valid title because the agent had no authority to convey it. The principal can assert that the sale is unenforceable and seek legal remedies to recover the property. The agent who acted beyond his mandate may also face personal liability for any loss the principal suffers as a result.
What to do if you need both powers covered
If you want your agent to have authority both to mortgage and to sell your property, you must expressly include both in your special power of attorney. A single document can cover multiple specific powers — the law does not prohibit that. What it does prohibit is reading one into the other by implication. Draft the power of attorney with clear, specific language enumerating each authority you are granting. If you are unsure whether your current power of attorney is adequate for what you intended your agent to do, a lawyer can review the document and advise on whether amendments are needed.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Luzviminda Palo vs. Spouses Rey C. Baquirquir, G.R. No. 228919, August 23, 2023 — read the decision on LawPhil →
- Spouses Benito Baysa and Victoria Baysa vs. Spouses Fidel Plantilla and Susan Plantilla, etc, G.R. No. 159271, July 13, 2015 — read the decision on LawPhil →