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Chapter 14

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  1. Chapter 14 Negotiable Instruments

  2. Quote of the Day “A negotiable bill or note is a courier without luggage.” John B. Gibson, Overton v. Tyler, 1846

  3. Commercial Paper • System for transferring paper funds easily • Types of commercial paper • Negotiable • Non-negotiable

  4. Types of Negotiable Instruments • Note: (promissory note) is a promise that you will pay money • Two people involved • Maker: Issuer of a promissory note • Payee: Someone who is owed money under the terms of an instrument

  5. Types of Negotiable Instruments • Draft: Order directing someone else to pay money for you • Check: Most common form of a draft • Order telling a bank to pay money • Three people involved • Drawer: Person who issues a draft • Drawee: One ordered by the drawer to pay money to the payee • Payee • Issuer: All purpose term that means both maker and drawer

  6. Fundamental Rule of Commercial Paper • Possessor of commercial paper has an unconditional right to be paid, so long as: • Paper is negotiable • It has been negotiated to the possessor • Possessor is a holder in due course • Issuer cannot claim a valid defense

  7. Difference between Negotiable and Non-negotiable Commercial Paper

  8. Requirements for Negotiability • The instrument must: • Be in writing • Be signed by the maker or drawer • Contain an unconditional promise or order to pay • State a definite amount of money • Be payable on demand or at a definite time • Be payable to order or to bearer

  9. Interpretation of Ambiguities • When terms contradict, three rules apply: • Words take precedence over numbers • Handwritten terms prevail over typewritten terms • Typed terms prevail over printed terms

  10. Negotiation • Means that an instrument has been transferred to the holder by someone other than the issuer • To be negotiated, order paper must first be indorsed and then delivered to the transferee • Bearer paper must simply be delivered to the transferee • No indorsement is required

  11. Negotiation • Order paper: Instrument that includes the words “pay to the order of” or their equivalent • Bearer paper: Note is a bearer paper if it is made out to “bearer” or it is not made out to any specific person • Can be redeemed by any holder in due course • Indorsement: Signature of a payee

  12. Holder in Due Course • Has an automatic right to receive payment for a negotiable instrument • Requirements for holder in due course: • Is a holder who has given value for the instrument, in good faith • Without notice of outstanding claims or other defects

  13. Holder in Due Course • Requirements for holder in due course • Holder: For order paper, anyone in possession of the instrument if it is payable to or indorsed to her • For bearer paper, anyone in possession • Value:Holder has already done something in exchange for the instrument • Good faith • Two tests to determine • Subjective test • Objective test

  14. Notice of Outstanding Claims or Other Defects • The instrument is overdue • The instrument is dishonored • The instrument is altered, forged, or incomplete • The holder has notice of certain claims or disputes

  15. Defenses against a Holder in Due Course • Issuer of a negotiable instrument is not required to pay if: • Signature on the instrument was forged • After signing, debts were discharged in bankruptcy • Amount was altered after he signed it • Signed under duress, mentally incapacitated, or part of illegal transaction • Tricked into signing the instrument

  16. Consumer Exception • Federal Trade Commission has special rules for consumer credit contracts • Consumer credit contract: Consumer borrows money from a lender to: • Purchase goods and services from a seller who is affiliated with the lender

  17. Liability for Negotiable Instruments • Signature liability:Liability of someone who has signs an instrument • Warranty liability:Liability of someone who receives payment on an instrument

  18. Primary versus Secondary Liability • Primary liability: Unconditionally liable • Must pay unless he has a valid defense • Secondary liability: Must pay only if the person with primary liability does not pay • The holder of an instrument must first try to get payment from: • The party with primary liability before making demands against a party with secondary liability

  19. Signature Liability • The maker is primarily liable • The drawer of a check has secondary liability • The bank (drawee) is not liable to: • The holder and owes no damages to the holder for refusing to pay the check

  20. Signature Liability • Drawee • Certified check: A check the issuer’s bank has signed, indicating its acceptance of the check • Acceptor: Bank (drawee) that accepts a check (draft), thereby becoming primarily liable on it • Cashier’s check: Check drawn on the bank itself • Promise that the bank will pay out of its own funds

  21. Signature Liability • Indorser: Anyone, other than an issuer or acceptor, who signs an instrument • Secondary liable • Indorsers are not liable if: • They write the words “without recourse” next to their signature on the instrument • Bank certifies the check • Check is presented for payment more than 30 days after the indorsement • Check is dishonored and the indorser is not notified within 30 days

  22. Accommodation Party • Someone, other than an issuer, acceptor, or indorser: • Who adds her signature to an instrument for the purpose of being liable on it • Accommodated party: Someone who receives a benefit from an accommodation party • An accommodation party has the same liability to the holder as the person for whom he signed

  23. Rules of Warranty Liability • The wrongdoer is always liable • The drawee bank is liable if it pays a check on which the drawer’s name is forged • The bank can recover from the payee only if the payee had reason to suspect the forgery • In any other case of wrongdoing, a person who first acquires an instrument from a wrongdoer is ultimately liable to anyone else who pays value for it

  24. Transfer Warranties • When someone transfers an instrument, she warrants that: • She is the holder of the instrument • All signatures are authentic and authorized • Instrument has not been altered • No defense can be asserted against her • As far as she knows the issuer is solvent

  25. Comparison of Signature Liability and Transfer Warranties • A forged signature is invalid and creates no signature liability for the person whose name was signed • The recipient of a forged item may recover under transfer warranties • Signature liability rules do not apply to the transfer of bearer paper since no indorsement is required • Transfer warranties apply

  26. Presentment Warranties • Apply to someone who demands payment for an instrument from the maker, drawee, or anyone else liable • Presenter warrants that: • She is a holder • The check has not been altered • She has no reason to believe the drawer’s signature is forged • Anyone who presents a promissory note for payment warrants that he is a holder of the instrument

  27. Other Liability Rules • Conversion liability • Conversion: Means that: • Someone has stolen an instrument • Bank has paid a check that has a forged indorsement • Impostor rule • If someone issues an instrument to an imposter: • Any indorsement in the name of the payee is valid as long as the person who pays the instrument does not know of the fraud

  28. Other Liability Rules • Fictitious payee rule • If an instrument is issued to a person who does not exist: • Indorsement in the name of the payee is valid as long as the payer does not know of the fraud • Employee indorsement rule • If an employee with responsibility for issuing instruments forges an instrument: • Indorsement in the name of the payee is valid as long as the payer does not know of the fraud

  29. Negligence • Anyone negligent in creating or paying an unauthorized instrument is liable to an innocent third party • Anyone careless in paying an unauthorized instrument is liable: • Despite the three rules • Anyone careless in allowing a forged or altered instrument to be created is also liable: • Whether or not he has violated one of the three rules

  30. “It is never wise to play an important game without understanding the rules. The rules of negotiable instruments are complex, but important because this game is played by virtually everyone.”