Presentation on theme: "Chapter 10 Negotiable instrument law"— Presentation transcript:
1 Chapter 10 Negotiable instrument law 1 Overview2 Issue of the negotiable instruments3 Endorsement4 Acceptance5 Guarantee6 Payment7 Dishonor and right of recourse8 Protection of lost-instrument holders9 Statute of limitations
2 1 Overview 1.1 Concept Means of payment Constitute independent contract embodying a paymentobligation and distinct from that of other contracts ortransactions by virtue of which such instruments are issued
3 Parties to bill of exchange DrawerBPayeeEndorserCEndorseeDBearerEGuarantorRight-holderSecondary debtorPDraweePrimary debtor
4 Parties to promissory note DrawerBPayeeEndorserCEndorseeDBearerEGuarantorRight-holderSecondary debtorPrimary debtor
5 Parties to cheque A Drawer B Payee Endorser C Endorsee D Bearer Right-holderSecondary debtorP (Banks)Drawee
6 Negotiable instrument relations in bill of exchange and cheque DrawerBPayeeEndorserCEndorseeDBearerPDraweeNegotiable instrument relationNon-negotiable instrument relation
8 Illustration: Hefei Branch ordered to make payment On 2 March 1989 Hefei Co signed a supply contract with Hua Lan De Co in respect of video equipment, by which Hua Lan De Co was to supply Hefei Co with 3000 sets of video equipment at RMB million. The sum was to be settled by bill of exchange to be accepted by a bank 180 days after the issue of the bill. Two bills would be issued. A bill representing RMB 8.5 million was to be issued to the supplier upon joint confirmation of delivery of the video tape recorders by the representatives of the banks for both parties at Suzhou Television Factory. Another one representing the balance would be issued upon notice by the supplier to the buyer of the availability of goods later in the same month. The second bill should be delivered by the buyer in person at a place to be specified by the supplier. On 15 March 1989 Hefei Branch, as per Hefei Co's instruction issued a bill of exchange for the amount of RMB 8.5 million (No ) to be drawn on an account No with the date of maturity being 15 September The bill was handed over to Hua Lan De Co when Hefei Co accepted the goods.On 15 April 1989 owing to goods quality Hefei Co, Hua Lan De Co, Hefei Branch and Luohu Branch (the bank of Hua Lan De Co) signed a supplementary agreement by which Hefei Branch on the effective date of the agreement was to issue a bill of exchange representing RMB 8.57 million left in the custody of Luohu Branch, which was to supervise Hua Lan De Co's performance of the prior contract. Unless Hua Lan De Co delivered goods on time,
9 Luohu Branch could not discount or mortgage the bill, and the Branch would hand over the bill which was effective from the date of issue to Hua Lan De Co upon its timely delivery. Failure by Hua Lan De Co to deliver would be breach of the contract, and Luohu Branch would return the bill to Hefei Branch. In case of any quality problem in the course of sale, Hefei Co would return the defective goods and Luohu Branch would deduct a corresponding sum from the RMB 8.5 million represented by the bill. Upon receipt of evidence of delivery from Hefei Co the bill might be accepted.Before the agreement, Hefei Co had authorized Hefei Branch to issue two bills of exchange on 11 April 1989 each representing RMB million, handed over to Luohu Branch on the date of signing the supplementary agreement. On 18 April Hua Lan De Co supplied Guangzhou Installation Unit of Hefei Co with 1,500 Telefrankt television sets. On 21 April 1989 Hua Lan De Co applied to Luohu Branch for discount on exchange the bill No Luohu Branch approved the application and on the same day applied for rediscount of the bill at Shenzhen SEZ branch of the Bank of China. The following day Luohu Branch signed a discount on exchange contract with the Trade Business Department of Hua Lan De Co and prepared a discount certificate with the Trade Business Department as the applicant. Luohu Branch prepared another discount certificate with Hua Lan De Co as the applicant. Luohu Branch deducted the interest on the sum from the date of discount to the date of maturity from the payment in respect of the discount on exchange, and credited the account No of Hua Lan De Co with the balance RMB Hua Lan De Co also endorsed the bill of exchange No
10 In July 1989 based on the dispute of performing the supply contract Hefei Co sued Hua Lan De Co at the Hefei Intermediate People's Court. On 15 August the Hefei court as per Hefei Co's application ordered that Hefei Branch must stop payment for the bill of exchange amounting to RMB million. On 20th August Hefei Branch sent a letter to Luohu Branch informing the latter that Hefei Branch would not reimburse payment on the discounted bill. On 11 September Luohu Branch replied that it had settled the discount on exchange before receiving Hefei Branch's letter, thus it was too late to stop payment. Luohu Branch requested Hefei Branch to accept the bill of exchange No , but rejected by Hefei Branch. Thus Luohu Branch sued Hefei Branch at the Shenzhen Intermediate People's Court claiming Hefei Branch’s unconditional honor of the discounted bill representing RMB 8.5 million. The trial court of Shenzhen held that the dispute between Hefei Co and Hua Lan De Co on supply contract involving different legal relationships was beyond the scope of the present case, and the grounds of defense raised by Hefei Branch were not valid. It thus ordered that Hefei Branch should pay Luohu Branch RMB 8.5 million in respect of the discounted bill of exchange plus interest at the rate 0.01% per day. The appellate court in Guangdong upheld this decision when appealed by the Hefei Branch.
11 1.2 Classification 1.2.1 Types of negotiable instruments Bill of exchange(1) unconditional(2) a written order(3) signed by the drawer(4) addressed to the drawee(5) pay a specified sum of money(6) pay either on demand, or at a determinable future time
12 22.214.171.124 Promissory note 126.96.36.199 Cheque (1) an unconditional promise (2) made in writing(3) signed by the maker of the note(4) pay a specified sum of money(5) addressed to the payee or the bearer(6) pay on demandCheque(1) a bill(2) payable on demand(3) for a specified sum of money(4) always drawn against a bank or other non-bank financialinstitutions(5) unconditional
13 ComparisonComparison among bill of exchange, promissory note and chequeBill of exchangePromissory noteChequeNatureEntrusted paymentSelf paymentBasic partiesDrawer, drawee, payeeDrawer & payeePayer’s qualificationNo restrictionDrawerBanksPrimary debtorAcceptorNoMaturityOn demandDeterminable future timeAcceptance√╳
15 2.1 Drawer’s qualification Bill of exchange: drawer must have genuine payment relationship with the payer who has reliable funds to pay for the sum specified in it.Bill of exchange without consideration: prohibited.Promissory note: drawer must have reliable funds to pay for the sum specified in the noteCheque: drawer must use his genuine name to open thebank accountreliable credibility and deposit certain amountof money in that account
16 2.2 Formalities Formalities of the negotiable instruments Draft Promissory noteChequePBOC’s uniform format√Words indicating specific typeUnconditional paymentSum certainDrawee’s namePayee’s nameIssuance dateDrawer’s signature
17 2.3 Default rules 2.3.1 Draft 2.3.2 Promissory note 2.3.3 Cheque General presumptions:(1) payable at sight(2) place of payment: business premises, domicile or habitual residence of drawee(3) place of issue is business premises, domicile or habitual residence of drawerPromissory noteGeneral presumptions:place of payment: business premises, domicile or habitual residence of drawer(2) place of issue: business premises, domicile or habitual residence of drawerChequeGeneral presumption:(1) place of payment: business premises of drawee(2) place of issue:business premises, domicile or habitual residence of drawer
19 3.1 NegotiabilityAssignment is distinguished from ordinary assignments:(1) negotiable instruments may be assigned from one bearer to another without any notice on payer about each new holder(2) assignee may sometimes acquire better right to sue on the instrument than his predecessor had(3) bearer may sue in his own name any other party liable on the instruments without joining any of the remaining parties7 requirements for negotiability:(1) order or promise must be in writing(2) obligation must be for a money payment(3) sum on the face of the instruments must be for a certain fixed sum(4) order or promise must be unconditional(5) instruments must be payable upon demand or at determinablefuture time(6) complete sum, not just a part must be negotiated(7) instruments must be signed by payer or drawer
20 3.2 EndorsementMust be on the reverse side of the instruments, or allongeFirst endorser on the allonge must sign or affix seal on the adhesion area between the instrument and allonge.Should be successiveOnce endorsed, endorser shall ensure the instrument in the hands of the subsequent bearer is accepted or paid. If dishonored, endorser shall reimburse bearer stated amount and relevant expenses.Any exclusion clause designed to exempt endorser’s liability: null and void.
21 4 Acceptance Acceptance: only applies to bill of exchange. Presentation: precondition for acceptance by drawee, except for sight draftPayer should decide whether to accept such draft within three days from the receipt of it.If accepted, indicate the date of acceptance and such express words as "acceptance" on the face of the draft, and affix the signature or seal on it.Draft payable at a fixed date after sight: date of payment must be indicated on it.
22 5 Guarantee Applies to: draft and promissory note Guarantor must indicate:(1) having such words as “guarantee”(2) name and domicile of the guarantor(3) name of the principal debtor(4) date of guarantee(5) signature or seal of the guarantor
24 6.1 Presentation of the instrument by bearer Draft: payer should make payment upon maturity date after acceptanceSight draft: bearer should request payer to do so within 1 month from the date of issueTime draft: bearer should do so within 10 days after the date of maturity of the fixed day or fixed period after the date of issue or presentationPromissory note: time for the payment is 2 monthsCheque: bearer shall do so within 10 days from the date of issue (same place)6.2 Effect of payment and liabilities for wrongfulpaymentPayer’s obligations:examine continuity of the endorsement on the instrumentcheck identity and other valid documents of parties presenting the instrumentmake full make full paymentNo partial payment is allowedDrawee must act faithfully and may not dishonor the instrument without reasonable cause
25 Illustration: Zhaoyang Branch liable for unreasonable cheque payment rejection On 9 April 1993 a Beijing based Supply Station agreed to refund Yanqi Co’s investment of RMB by crossed cheque with “account payee only.” Yanqi Co deposited the crossed cheque to its own bank account on the same day. On 10 April the cheque was dishonored by Zhaoyang Branch, the bank of the Supply Station based on “cheque bounced for insufficient fund". In fact the Supply Station’s current account balance was RMB on that day sufficient to clear such cheque. At noon of 12 April 1993, Yanqi Co found that the cheque was dishonored, and later obtained from its own bank the dishonored cheque and an advice for Bounced Cheque. In the afternoon by showing the dishonored cheque Yanqi Co demanded payment from the Supply Station again, which sent an account clerk to Zhaoyang Branch to settle the payment. Its balance then was only RMB , thus insufficient to clear the cheque. Only on 15 April 1993 when there was RMB in its current account, Zhaoyang Branch settled the payment, and Yanqi Co received RMB on 17 April 1993.
26 In the process of clearing the cheque Yanqi Co believed that the Supply Station's cheque for RMB would be settled in time. Not knowing that the cheque had been dishonored, Yanqi Co had issued two crossed cheques for RMB on 10 April and RMB on 12 April 1993 respectively. Since Yanqi Co's current account balance had merely RMB insufficient to settle such cheques, which were dishonored on 12 and 13 April and a fine of RMB was imposed by Yanqi Co's bank. As a result Yanqi Co sued Zhaoyang Branch claiming compensation caused by the fine imposed by the bank. The cause for doing so was that Zhaoyang Branch dishonored the Supply Station's crossed cheque improperly while there was sufficient fund in the current account. The alleged reason of "Cheque Bounced for Insufficient Fund" was not genuine. Since the refund could not be transferred into its current account in time, Yanqi Co could not clear the cheques in relation to purchase of goods and a fine was imposed by its own bank. The trial court rejected Yanqi Co’s claim, which appealed to the intermediate court. After mediation conducted by the appellate court, the Zhaoyang Branch agreed to pay the Yanqi Co damages of RMB 19180, which was affirmed by the appellate court.
28 7.1 Occurrence dishonor Occurrence and certificate of dishonor Upon maturityNon-paymentCertificate of refusalPrior to maturityNon-acceptanceBankruptcy orderAdministrative decisionDrawee or acceptor’s death or disappearanceDrawee or acceptor’s bankruptcyDrawee or acceptor’s closure
29 7.2 Notice of dishonor Bearer shall inform the previous parties: within 3 days from receipt of certificate of dishonor or rejection of acceptanceUpon receipt of such notice by the predecessor, he shallinform his next immediate predecessor within 3 days.Notice: contain major written items of the instrument andexplanation for rejection
30 7.3 EffectsDrawer, endorser, acceptor and guarantor: jointly and severally liable to bearerBearer does not have to follow sequence of debtors on instrument.Bearer may recourse against any or all of them.Specific request includes:(1) full amount of the debt dishonored(2) interest on the such amount according to interest rateformulated by the PBOC from the maturity or presentationdate to date of payment(3) expenses incurred in obtaining written evidence of rejectionof the instrument and issuing rejection notices
31 8 Protection of lost-instrument holders If lost before payment is due, lost-instrument holder may notify drawee to suspend payment.Within 3 days of giving the notice for suspension of payment or after the loss of the instrument, lost-instrument holder may apply to court for publication of public notice for assertion of claimsHolder other than the lost-instrument holder comes forward to claim the rights during the foregoing withholding period, the litigation method shall be utilized
32 9 Statute of limitations Limitation periodRunning fromBearer’s rights against drawer & acceptor2 yearsMaturity dateSight draft and promissory noteIssuance dateCheque’s bearer against drawer6 monthsBearer’s recourse against predecessorDate of rejectionRight of re-recourse against predecessors3 monthsPayment date or date being sued