Negotiable instrument

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A 1939 promissory note, Rangoon, Burma. R1000 Rangoon 1939 promissory note.jpg
A 1939 promissory note, Rangoon, Burma.

A negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time, with the payer usually named on the document. More specifically, it is a document contemplated by or consisting of a contract, which promises the payment of money without condition, which may be paid either on demand or at a future date. The term can have different meanings, depending on what law is being applied and what country and context it is used in.

Contract agreement having a lawful object entered into voluntarily by multiple parties

A contract is a legally binding agreement which recognises and governs the rights and duties of the parties to the agreement. A contract is legally enforceable because it meets the requirements and approval of the law. An agreement typically involves the exchange of goods, services, money, or promises of any of those. In the event of breach of contract, the law awards the injured party access to legal remedies such as damages and cancellation.

Contents

Definition

In the Commonwealth of Nations almost all jurisdictions have codified the law relating to negotiable instruments in a Bills of Exchange Act, e.g. Bills of Exchange Act 1882 in the UK, Bills of Exchange Act 1908 in New Zealand, Bills of Exchange Act 1909 in Australia, [1] the Negotiable Instruments Act, 1881 in India and the Bills of Exchange Act 1914 in Mauritius. The Bills of Exchange Act:

Commonwealth of Nations Intergovernmental organisation

The Commonwealth of Nations, normally known as the Commonwealth, and historically the British Commonwealth, is a unique political association of 53 member states, nearly all of them former territories of the British Empire. The chief institutions of the organisation are the Commonwealth Secretariat, which focuses on intergovernmental aspects, and the Commonwealth Foundation, which focuses on non-governmental relations between member states.

Bills of Exchange Act 1882 Act 1882

The Bills of Exchange Act 1882 is a United Kingdom Act of Parliament concerning bills of exchange. The Act was drafted by Sir Mackenzie Chalmers, who later drafted the Sale of Goods Act 1893 and the Marine Insurance Act 1906.

Bills of Exchange Act 1908

The Bills of Exchange Act 1908 is an Act of Parliament passed in New Zealand in 1908.

  1. defines a bill of exchange as: 'an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer.
  2. defines a cheque as: 'a bill of exchange drawn on a banker, which is payable on demand'
  3. defines a promissory note as: 'an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person or to bearer.'

Additionally most Commonwealth jurisdictions have separate Cheques Acts providing for additional protections for bankers collecting unendorsed or irregularly endorsed cheques, providing that cheques that are crossed and marked 'not negotiable' or similar are not transferable, and providing for electronic presentation of cheques in inter-bank cheque clearing systems.

History

In India, during the Mauryan period in the 3rd century BCE, an instrument called adesha was in use, which was an order on a banker desiring him to pay the money of the note to a third person, which corresponds to the definition of a bill of exchange as we understand it today.

The ancient Romans are believed to have used an early form of cheque known as praescriptiones in the 1st century BCE [2] and 2,000-year-old Roman promissory notes have been found [3] [4]

Promissory note negotiable instrument, wherein one party makes an unconditional promise in writing to pay a determinate sum of money to the other

A promissory note, sometimes referred to as a note payable, is a legal instrument, in which one party promises in writing to pay a determinate sum of money to the other, either at a fixed or determinable future time or on demand of the payee, under specific terms.

Common prototypes of bills of exchanges and promissory notes originated in China, where special instruments called feitsyan were used to safely transfer money over long distances during the reign of the Tang Dynasty in the 8th century. [5] [ self-published source ]

China Country in East Asia

China, officially the People's Republic of China (PRC), is a country in East Asia and the world's most populous country, with a population of around 1.404 billion. Covering approximately 9,600,000 square kilometers (3,700,000 sq mi), it is the third- or fourth-largest country by total area. Governed by the Communist Party of China, the state exercises jurisdiction over 22 provinces, five autonomous regions, four direct-controlled municipalities, and the special administrative regions of Hong Kong and Macau.

In about 1150 the Knights Templar issued an early form of bank notes to departing pilgrims in exchange for a deposit of valuables at a local Templar preceptory in a European country, which was able to be cashed by the pilgrim concerned on arrival in the Holy land, by presenting the note to a Templar preceptory there. [6] [7]

In the mid-13th century, the Ilkhanid rulers of Persia printed the "cha" or "chap" which was used as paper money for limited usage for transactions between the court and the merchants for about three years before it collapsed. The collapse was caused by the court accepting the "cha" only at progressive discount.

Later, such documents were used for money transfer by Middle Eastern merchants, who had used the prototypes of bills of exchange ("suftadja" or "softa") from the 8th century to present. Such prototypes came to be used later by the Iberian and Italian merchants in the 12th century. In Italy in the 13–15th centuries, bills of exchange and promissory notes obtained their main features, while further phases of their development have been associated with France (16–18th centuries, where the endorsement had appeared) and Germany (19th century, formalization of Exchange Law). The first mention of the use of bills of exchange in English statutes dates from 1381, under Richard II; the statute mandates the use of such instruments in England, and prohibits the future export of gold and silver specie, in any form, to settle foreign commercial transactions. [8] English exchange law was different than continental European law because of different legal systems; the English system was adopted later in the United States. [9]

The modern emphasis on negotiability may also be traced to Lord Mansfield. [10] Germanic Lombards documents may also have some elements of negotiability. [11]

Distinguished from other types of contracts

An 1870 Bill of Exchange payable in London with British Foreign Bill revenue stamps attached. British Foreign Bill stamps on 1870 Oriental Bank Corporation Bill of Exchange.jpg
An 1870 Bill of Exchange payable in London with British Foreign Bill revenue stamps attached.

A negotiable instrument can serve to convey value constituting at least part of the performance of a contract, albeit perhaps not obvious in contract formation, in terms inherent in and arising from the requisite offer and acceptance and conveyance of consideration. The underlying contract contemplates the right to hold the instrument as, and to negotiate the instrument to, a holder in due course, the payment on which is at least part of the performance of the contract to which the negotiable instrument is linked. The instrument, memorializing: (1) the power to demand payment; and, (2) the right to be paid, can move, for example, in the instance of a "bearer instrument", wherein the possession of the document itself attributes and ascribes the right to payment. Certain exceptions exist, such as instances of loss or theft of the instrument, wherein the possessor of the note may be a holder, but not necessarily a holder in due course. Negotiation requires a valid endorsement of the negotiable instrument.

The consideration constituted by a negotiable instrument is cognizable as the value given up to acquire it (benefit) and the consequent loss of value (detriment) to the prior holder; thus, no separate consideration is required to support an accompanying contract assignment. The instrument itself is understood as memorializing the right for, and power to demand, payment, and an obligation for payment evidenced by the instrument itself with possession as a holder in due course being the touchstone for the right to, and power to demand, payment. In some instances, the negotiable instrument can serve as the writing memorializing a contract, thus satisfying any applicable statute of frauds as to that contract.

The holder in due course

The rights of a holder in due course of a negotiable instrument are qualitatively, as matters of law, superior to those provided by ordinary species of contracts:

Negotiation often enables the transferee to become the party to the contract through a contract assignment (provided for explicitly or by operation of law) and to enforce the contract in the transferee-assignee's own name. Negotiation can be effected by endorsement and delivery (order instruments), or by delivery alone (bearer instruments).

Classes

Promissory notes and bills of exchange are two primary types of negotiable instruments.

Promissory note

Although possibly non-negotiable, a promissory note may be a negotiable instrument if it is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand to the payee, or at fixed or determinable future time, certain in money, to order or to bearer. (see Sec. 194)[ clarification needed ] The law applicable to the specific instrument will determine whether it is a negotiable instrument or a non-negotiable instrument.

Bank notes are frequently referred to as promissory notes, a promissory note made by a bank and payable to bearer on demand. According to section 4 of India's Negotiable Instruments Act, 1881, "a Promissory Note is an writing (not being a bank note or currency note), containing an unconditional undertaking, signed by the maker to pay a certain sum of money only to or to the order of a certain person or the bearer of the instrument".[ citation needed ]

Bill of exchange

A bill of exchange or "draft" is a written order by the drawer to the drawee to pay money to the payee . A common type of bill of exchange is the cheque (check in American English), defined as a bill of exchange drawn on a banker and payable on demand. Bills of exchange are used primarily in international trade, and are written orders by one person to his bank to pay the bearer a specific sum on a specific date. Prior to the advent of paper currency, bills of exchange were a common means of exchange. They are not used as often today.

Bill of exchange, 1933 Credit1.jpg
Bill of exchange, 1933

A bill of exchange is essentially an order made by one person to another to pay money to a third person. A bill of exchange requires in its inception three parties—the drawer, the drawee, and the payee. The person who draws the bill is called the drawer. He gives the order to pay money to the third party. The party upon whom the bill is drawn is called the drawee. He is the person to whom the bill is addressed and who is ordered to pay. He becomes an acceptor when he indicates his willingness to pay the bill. The party in whose favor the bill is drawn or is payable is called the payee. The parties need not all be distinct persons. Thus, the drawer may draw on himself payable to his own order. A bill of exchange may be endorsed by the payee in favour of a third party, who may in turn endorse it to a fourth, and so on indefinitely. The "holder in due course" may claim the amount of the bill against the drawee and all previous endorsers, regardless of any counterclaims that may have disabled the previous payee or endorser from doing so. This is what is meant by saying that a bill is negotiable. In some cases a bill is marked "not negotiable"—see crossing of cheques. In that case it can still be transferred to a third party, but the third party can have no better right than the transferor.

In the United States

In the United States, Articles 3 and 4 of the Uniform Commercial Code (UCC) govern the issuance and transfer of negotiable instruments, unless the instruments are governed by Article 8 of the UCC. The various state law enactments of UCC §§ 3–104(a) through (d) set forth the legal definition of what is and what is not a negotiable instrument:

§ 3–104. NEGOTIABLE INSTRUMENT.

(a) Except as provided in subsections (c) and (d), "negotiable instrument" means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it: (1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder; (2) is payable on demand or at a definite time; and (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor. (b) "Instrument" means a negotiable instrument. (c) An order that meets all of the requirements of subsection (a), except paragraph (1), and otherwise falls within the definition of "check" in subsection (f) is a negotiable instrument and a check. (d) A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this Article.

Thus, for a writing to be a negotiable instrument under Article 3, [12] the following requirements must be met:

  1. The promise or order to pay must be unconditional;
  2. The payment must be a specific sum of money, although interest may be added to the sum;
  3. The payment must be made on demand or at a definite time;
  4. The instrument must not require the person promising payment to perform any act other than paying the money specified;
  5. The instrument must be payable to bearer or to order.

The latter requirement is referred to as the "words of negotiability": a writing which does not contain the words "to the order of" (within the four corners of the instrument or in endorsement on the note or in allonge) or indicate that it is payable to the individual holding the contract document (analogous to the holder in due course) is not a negotiable instrument and is not governed by Article 3, even if it appears to have all of the other features of negotiability. The only exception is that if an instrument meets the definition of a cheque (a bill of exchange payable on demand and drawn on a bank) and is not payable to order (i.e. if it just reads "pay John Doe") then it is treated as a negotiable instrument.

UCC Article 3 does not apply to money, to payment orders governed by Article 4A, or to securities governed by Article 8. [13]

Negotiation and endorsement

Persons other than the original obligor and obligee can become parties to a negotiable instrument. The most common manner in which this is done is by "endorsing" (from Latin dorsum, the back + in [14] ), that is placing one's signature on the back of the instrument : if the person who signs does so with the intention of obtaining payment of the instrument or acquiring or transferring rights to the instrument, the signature is called an endorsement. There are five types of endorsements contemplated by the Code, covered in UCC Article 3, Sections 204–206:

If a note or draft is negotiated to a person who acquires the instrument

  1. in good faith;
  2. for value;
  3. without notice of any defenses to payment,

the transferee is a holder in due course and can enforce the instrument without being subject to defenses which the maker of the instrument would be able to assert against the original payee, except for certain real defenses. These real defenses include (1) forgery of the instrument; (2) fraud as to the nature of the instrument being signed; (3) alteration of the instrument; (4) incapacity of the signer to contract; (5) infancy of the signer; (6) duress; (7) discharge in bankruptcy; and, (8) the running of a statute of limitations as to the validity of the instrument. The holder-in-due-course rule is a rebuttable presumption that makes the free transfer of negotiable instruments feasible in the modern economy. A person or entity purchasing an instrument in the ordinary course of business can reasonably expect that it will be paid when presented to, and not subject to dishonor by, the maker, without involving itself in a dispute between the maker and the person to whom the instrument was first issued (this can be contrasted to the lesser rights and obligations accruing to mere holders). Article 3 of the Uniform Commercial Code as enacted in a particular State's law contemplate real defenses available to purported holders in due course. The foregoing is the theory and application presuming compliance with the relevant law. Practically, the obligor-payor on an instrument who feels he has been defrauded or otherwise unfairly dealt with by the payee may nonetheless refuse to pay even a holder in due course, requiring the latter to resort to litigation to recover on the instrument.

Usage

While bearer instruments are rarely created as such, a holder of commercial paper with the holder designated as payee can change the instrument to a bearer instrument by an endorsement. The proper holder simply signs the back of the instrument and the instrument becomes bearer paper, although in recent years, third party checks are not being honored by most banks unless the original payee has signed a notarized document stating such.

Alternatively, an individual or company may write a check payable to "cash" or "bearer" and create a bearer instrument. Great care should be taken with the security of the instrument, as it is legally almost as good as cash.

Exceptions

Under the Code, the following are not negotiable instruments, although the law governing obligations with respect to such items may be similar to or derived from the law applicable to negotiable instruments:

Modern relevance

Although often considered foundational in business law, the modern relevance of negotiability has been questioned. [16] Negotiability can be traced back to the 1700s and Lord Mansfield, when money and liquidity was relatively scarce. [10] The holder in due course rule has been limited by various statutes. [10] Concerns have also been raised that the holder in due course rule does not align the incentives of the mortgage originators and the assignees efficiently. [10]

See also

Related Research Articles

Hundi financial instrument

A Hundi or Hundee is a financial instrument that developed in Medieval India for use in trade and credit transactions. Hundis are used as a form of remittance instrument to transfer money from place to place, as a form of credit instrument or IOU to borrow money and as a bill of exchange in trade transactions. The Reserve Bank of India describes the Hundi as "an unconditional order in writing made by a person directing another to pay a certain sum of money to a person named in the order."

Cheque method of payment

A cheque, or check, is a document that orders a bank to pay a specific amount of money from a person's account to the person in whose name the cheque has been issued. The person writing the cheque, known as the drawer, has a transaction banking account where their money is held. The drawer writes the various details including the monetary amount, date, and a payee on the cheque, and signs it, ordering their bank, known as the drawee, to pay that person or company the amount of money stated.

Bankers acceptance

A banker's acceptance is an instrument representing a promised future payment by a bank. The payment is accepted and guaranteed by the bank as a time draft to be drawn on a deposit. The draft specifies the amount of funds, the date of the payment, and the entity to which the payment is owed. After acceptance, the draft becomes an unconditional liability of the bank. Banker's acceptances are distinguished from ordinary time drafts in that ownership is transferable prior to maturity, allowing them to be traded in the secondary market.

Securities market securities market

Securities market is a component of the wider financial market where securities can be bought and sold between subjects of the economy, on the basis of demand and supply. Securities markets encompasses equity markets, bond markets and derivatives markets where prices can be determined and participants both professional and non professionals can meet.

A bearer instrument is a document that entitles the holder of the document rights of ownership or title to the underlying property, such as shares or bonds. Unlike normal registered instruments, no record is kept of who owns bearer instruments or of transactions involving transfer of ownership, enabling the owner to deal with the property anonymously. Whoever physically holds the bearer document is assumed to be the owner of the property, and the rights arising therefrom, such as dividends.

Postal order Type of money order issued by a Post Office

A postal order is a financial instrument usually intended for sending money through the mail. It is purchased at a post office and is payable at another post office to the named recipient. A small fee for the service, known as poundage, is paid by the purchaser. In the United States, this is known as a postal money order. Postal orders are not legal tender, but a type of promissory note, similar to a cheque.

A payment is the trade of value from one party to another for goods, or services, or to fulfill a legal obligation.

In banking, a post-dated cheque is a cheque written by the drawer (payer) for a date in the future.

In commercial law, a holder in due course is someone who accepts a negotiable instrument in a value-for-value exchange without reason to doubt its legitimacy. A holder in due course acquires the right to make a claim for the instrument's value against its originator and intermediate holders. Even if one of these parties passed the instrument in bad faith or in a fraudulent transaction, a holder in due course may retain the right to enforce it.

<i>Board of Inland Revenue v Haddock</i>

Board of Inland Revenue v Haddock is a fictitious legal case written by the humorist A. P. Herbert for Punch magazine as part of his series of Misleading Cases in the Common Law. It was first published in book form in More Misleading Cases in the Common Law. The case evolved into an urban legend.

Demand draft

A demand draft is a negotiable instrument similar to a bill of exchange. A bank issues a demand draft to a client (drawer), directing another bank (drawee) or one of its own branches to pay a certain sum to the specified party (payee).

Blank endorsement of a financial instrument, such as a cheque, is only a signature, not indicating the payee. The effect of this is that it is payable only to the bearer – legally, it transforms an order instrument into a bearer instrument. It is one of the types of endorsement of a negotiable instrument.

Ackley School District v. Hall, 113 U.S. 135 (1885), was a suit to recover principal and interest claimed to be due the defendant on negotiable bonds issued by the plaintiff.

Crossing of cheques

A crossed cheque is a cheque that has been marked specifying an instruction on the way it is to be redeemed. A common instruction is for the cheque to be deposited directly to an account with a bank and not to be immediately cashed by the holder over the bank counter. The format and wording varies between countries, but generally, two parallel lines may be placed either vertically across the cheque or on the top left hand corner of the cheque. By using crossed cheques, cheque writers can effectively protect the instrument from being stolen or cashed by unauthorized persons.

Warrant of payment

In financial transactions, a warrant is a written order from a first person that instructs a second person to pay a specified recipient a specific amount of money or goods at a specific time. The warrant may or may not be negotiable and may authorize payment to the warrant holder on demand or after a maturity date. Governments may choose to pay wages and other accounts payable by issuing warrants instead of checks.

Negotiable Instruments Act, 1881 is an act in India dating from the British colonial rule, that is still in force largely unchanged.

Forged endorsement is a type of fraudulent payment. For example, someone may write a cheque with a forged signature. In this case the forged signature makes the endorsement fraudulent. Forging endorsements can be use to prevent the person or legal entity that the payment is made out to from being able to receive its value.

<i>Canada Trustco Mortgage Co v Canada</i>

Canada Trustco Mortgage Co v Canada, is a significant case of the Supreme Court of Canada on the intersection of the Income Tax Act and the Bills of Exchange Act and the ability to seize funds that have been deposited by a debtor into an account held at a financial institution in Canada.

<i>BMP Global Distribution Inc v Bank of Nova Scotia</i>

BMP Global Distribution Inc v Bank of Nova Scotia, [2009] 1 S.C.R. 504, 2009 SCC 15, is a significant case of the Supreme Court of Canada on the law of restitution and tracing, in this case dealing with a bank's right to recover funds paid by mistake on the deposit of a fraudulent cheque.

References

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  8. Adam Anderson, An historical and chronological deduction of the origin of commerce: from the earliest accounts to the present time. Containing, an history of the great commercial interests of the British empire..., Vol. I, p.209–210 (1764)
  9. Wikisource-logo.svg Chisholm, Hugh, ed. (1911). "Bill of Exchange"  . Encyclopædia Britannica . 3 (11th ed.). Cambridge University Press. pp. 940–943.
  10. 1 2 3 4 Greenlee MB, Fitzpatrck IV TJ. (2008). Reconsidering the Application of the Holder in Due Course Rule to Home Mortgage Notes. Federal Reserve Bank of Cleveland.
  11. Jacob J. Rabinowitz (May 1956). "The Origin of the Negotiable Promissory Note". University of Pennsylvania Law Review . 104 (7): 927–939. doi:10.2307/3310431. JSTOR   3310431.
  12. "Uniform Commercial Code – Article 3". Law.cornell.edu. Retrieved 2014-06-23.
  13. "Articles of the Uniform Commercial Code". Uniformcommercialcode.uslegal.com. Retrieved 2014-06-23.
  14. Collins Dictionary of the English Language, 2nd Edition, London, 1986, pp.504-5; Cassell's Latin Dictionary, Marchant, J.R.V, & Charles, Joseph F., (Eds.), Revised Edition, 1928, p.182
  15. "Article 3, Sections 206(b)". Law.cornell.edu. Retrieved 2014-06-23.
  16. Mann RJ (1996). Searching for Negotiability in Payment and Credit Systems. UCLA Law Review.