Self-Made Reviewer on Law on Negotiable InstrumentsNIL (Act No.
2031)
CHAPTER 1 FORM AND INTERPRETATION
APPLICABILITY OF NIL- Act applies only to negotiable instruments
and those meet requirements in Section1.- Any case not provided in
this Act, govern by existing legislation or in default rules of law
merchant.
3 FUNCTIONS & IMPORTANCE OF NI1. Used as a substitute for
money
*NI differs from money; NI is valuable/worthless depending on
financial ability of parties to them
2. Media of exchange3. Media of credit transaction
PURPOSE OF NEGOTIABILITY- Allow men of UNDOUBTED credit to carry
on business enterprise with the use of instruments knowing that
other businessmen will treat this promises as CASH.
Check for immediate paymentBofE & PN for circulation of
credits
2 CHARACTERISTICS/FEATURES OF NI1. Negotiability
quality/attribute where NI give the HDC the right to hold NI &
collect sum payable for himself FREE from defences
*A bona fide holder, FREE from PERSONAL DEFENSES, but may be
subject to REAL DEFENSES.
2. Accumulation of Secondary Contracts (as they are transferred
from one person to another)
10 COMMON FORMS OF NI (bbbb dd cpt)1. BofE2. Bank check3. Bank
notes4. Bankers acceptance5. Bonds6. Drafts7. Due bills8. Check9.
Promissory Notes10. Trade acceptance
6 INSTRUMENTS W/ LIMITED NEGOTIABILITY1. LETTER OF CREDIT-
letter from merchant/bank/banker in one place, addressed to another
(place/country) requesting the addressee to pay money/deliver goods
to 3rd party- letter requesting one person to make advances to 3rd
person on the credit of writer
2. TREASURY WARRANT- govt warrant for payment of money covering
payment/replenishment of cash advances for official
expenditures
3. POSTAL MONEY ORDER
4. BILL OF LADING- NO unconditional promise/order to pay a sum
certain in money
5. CERTIFICATE OF STOCK- written instrument signed by proper
officer of corporation stating name of person (owner of designated
# of shares of its stock)- NO unconditional promise/order to pay a
sum certain in money
6. WAREHOUSE RECEIPT- NO unconditional promise/order to pay a
sum certain in money
Section 1 Memorize
NI contractual obligation to pay money
To determine the negotiability of an instrument, consider the
ff:1. whole of the instrument2. only what appears on FACE of the
instrument3. provisions of NIL esp. Section1
MAKER person issuing PNDRAWER person issuing BofE
UNCONDITIONAL PROMISE PNUNCONDITIONAL ORDER BofE
*Where the meaning is doubtful, the courts adopted the policy of
resolving IN FAVOR OF NEGOTIABILITY of the instrument.
*There is NO ORAL NI.
*The signature (of maker/drawer) is a prima facie evidence of
his intention to be bound.
*If the signature placed in instrument, UNCLEAR what capacity
person intended to sigh, he is deemed INDORSER not
maker/drawer.
*NI CEASES to be negotiable if the INDORSEMENT prohibits FURTHER
negotiation of instrument.Eg. Pay to Pedro Cruz.
*PLACE & DATE NOT ESSENTIAL to negotiability of instrument
EXCEPT in cases, date IS necessary to know the due/interest.
*Instead of promise to pay, other acceptable terms can be used:-
I agree to pay- I will pay- I bind myself to pay- good to A or
order- due to A or order- I acknowledge to be indebted
*MERE acknowledgment of debt w/o the word ORDER or BEARER (words
of negotiability) DOES NOT satisfy negotiability.
*The word TO THE ORDER OF and OR ORDER is a promise to pay as
ordered/commanded by PAYEE but may be payable to BEARER.
*When NO TIME of payment is expressed, an instrument is payable
ON DEMAND.
*A note may be signed by SEVERAL persons either JOINTLY or
JOINTLY AND SEVERALLY.
PN maker, payeeBofE drawer, drawee, payee (parties need NOT ALL
be distinct persons. Thus, drawer may draw on himself payable to
his own order.)
December 29, 2013 ManilaP1000 Thirty days after date, pay to
(unconditional order to pay) to A or order the sum of One Thousand
(P1000) Pesos. Value received and charge the same account of (Sgd.)
BTo CCollege, SampalocManila
LEGEND:B drawerC- drawee; not really a party to the bill,
assumes liability ONLY when he accepts the bill usually by writing
the word ACCEPTED and signs his name on the face where he becomes
ACCEPTOR and NOT A DRAWEE. By being this (acceptor), he becomes
primarily liable like the MAKER of a note; DRAWER is ONLY A SURETY
then.
*The words (in BofE) CHARGE THE SAME TO THE ACCOUNT OF means
amount to be paid by DRAWEE is to be charged against the funds of
DRAWER. But this may be omitted.
2 IDEA & PURPOSE OF BofE1. DRAWERs funds in hands of
DRAWEE2. Liability of DRAWEE for non-payment- If DRAWEE refuses to
accept when he has funds for purpose, he is LIABLE TO DRAWER (not
to PAYEE) for resulting damages & harm done to his (DRAWER)
credit.-If DRAWER no funds in DRAWEE, presumed that DRAWER made
arrangements with DRAWEE so he will honor the bill. In such case,
DRAWEE must look to the DRAWER for reimbursement and NOT TO BONA
FIDE HOLDER.
Section 2 Certainty as to sum, what constitutesSum payable is
SUM CERTAIN although paid:- w/ interest- by stated installments- by
stated installments w/ provision that upon default in payment of
any installment/interest, the whole shall become due- w/ exchange,
fixed/current rate- w/ costs of collection/attorneys fee in case
payment not made at maturity
*If instrument calls for an ACT OTHER THAN payment of money NOT
NEGOTIABLE
*A note giving the MAKER the right to ascertain the AMOUNT
payable NON-NEGOTIABLE
*A promise to pay P1000 in two installments or in installments
NON-NEGOTIABLE
*Acceleration at option of HOLDER NON-NEGOTIABLE
*Acceleration at option of MAKER NEGOTIABLE(The MAKER can avoid
acceleration by paying the installments on their due date)
*The promise/order to pay w/ exchange NEGOTIABLE(EXCHANGE charge
for providing funds, may be fixed/current rate; eg. compensating
balance)
*Payment in FOREIGN CURRENCY NEGOTIABLE
*Payment w/ EXCHANGE RATE NEGOTIABLE- applicable only to foreign
bills
*If payment not made at maturity, then there is ADDED amount due
(eg. Cost of collection, attorneys fee) NEGOTIABLE
*Attorneys fee may be REDUCED by courts if found UNREASONABLE;
if attorneys fee NOT specified, it shall be in REASONABLE SUM.
*A provision of to pay ALL costs, charges and expenses incurred
by PAYEE in ANY legal proceedings for collection of debt
NON-NEGOTIABLE
*Acquisition of instrument AFTER MATURITY- a transferee
acquiring an instrument when it is OVERDUE would NOT BE HDC &
would hold instrument subject to defenses, as if it were
NON-NEGOTIABLE.
Section 3 Promise is UNCONDITIONAL when:- INDICATION of a
particular fund out of w/c reimbursement is to be made or
particular account to be debited w/ the amount (NOT direct source
of payment, only source of reimbursement) - NEGOTIABLE- statement
of transaction w/c gives rise to instrument - NEGOTIABLE
Promise is NOT UNCONDITIONAL an order/promise to pay OUT OF
particular fund (direct source of payment) NON-NEGOTIABLE
*The test of NEGOTIABILITY is whether the instrument carries the
GENERAL PERSONAL CREDIT of MAKER/DRAWER.
*A BARE acknowledgment of indebtedness (eg. IOU, due A P1000,
for value received) ALONE NON-NEGOTIABLE. But if words like DUE A
OR ORDER, DUE B OR BEARER NEGOTIABLE although NO express promissory
words
*In BofE, there must be an ORDER TO PAY one party to another,
OTHERWISE, it is NON-NEGOTIABLE.
ORDER command/imperative direction
*A MERE request IS NOT an ORDER.(eg. I request you to pay, I
wish you would pay, I authorize you to pay)
*The MERE use of POLITE words like PLEASE does NOT convert ORDER
into REQUEST.*The NOTE/BILL must be payable ABSOLUTELY.
*It is IMMATERIAL whether the DRAWEE obeys the order to pay or
not. The NEGOTIABILITY of a bill DEPENDS upon the TERMS OF ORDER.
The DRAWER has his liability under the law.
*If there is CONDITION or subject to CONTINGENCY
NON-NEGOTIABLE
* If language used is AMBIGUOUS or OBSCURE, courts usually
decide IN FAVOR OF NEGOTIABILITY.
*A MERE recital of consideration for instrument is STILL
UNCONDITIONAL NEGOTIABLE (statement merely identifies the
transaction w/c gives rise to instrument)(eg. I promise to pay to
order of P1000 being the price of the car this day sold and
delivered to me; as per our contract; accordance w/ our
contract)
*If promise/order is subject to TERMS AND CONDITIONS
NON-NEGOTIABLE(As already stated, the negotiability of instrument
is to be determined by what appears on its FACE AND NOT
ELSEWHERE.)
Section 4 Determinable future time, what constitutes- fixed
period after date/sight - NEGOTIABLE- on/before a fixed or
determinable future time specified - NEGOTIABLE- ON/AFTER (fixed
period) the occurrence of a specified event w/c is CERTAIN to
happen, not known when NEGOTIABLE (eg. Death of father); if BEFORE
NON-NEGOTIABLE
*An instrument payable w/ CONTINGENCY (an uncertain future
event, or an event w/c may or may not happen) is NON-NEGOTIABLE,
and the happening of the event DOES NOT cure the defect.
DEMAND INSTRUMENT payment at anytimeTERM INSTRUMENT payabe only
UPON ARRIVAL of time for payment
AFTER SIGHT means AFTER the instrument is SEEN by the DRAWEE
upon presentment of acceptanceDETERMINABLE FUTURE TIME means a time
that can be DETERMINED W/ CERTAINTY AFTER execution of
instrument
Section 5 Additional provisions still NEGOTIABLE:- authorizes
SALE OF COLLATERAL securities- authorizes a CONFESSION OF JUDGMENT
(written acknowledgment by defendant of his indebtedness/liability
to plaintiff) if not paid at maturity
- waives the BENEFIT OF ANY LAW intended for
advantage/protection of obligor.(eg. Pay bearer P1000. Notice of
dishonor waived.)
- gives HOLDER the election to require something to be done in
lieu of payment of money(eg. I promise to pay P1000 to A or order
or an air conditioner at the option of the holder NEGOTIABLE;I
promise to pay P1000 to A or order or air conditioner
NON-NEGOTIABLE because HOLDER cannot COMPEL him to make payment in
MONEY)
Section 6 OMISSIONS; SEAL; PARTICULAR IN MONEYStill NEGOTIABLE:-
NO DATE(If there is a date stated but there is no such date in
calendar, the law will deem the NEAREST DATE of the month the date
intended; eg. Note dated Apr31 will be construed to be intended for
Apr30)
- NO VALUE given(eg. NO written for value received)
- NO PLACE where it is drawn or is payable(An instrument that
does not specify the place of payment is presumed to be payable at
the place/residence/business of MAKER/DRAWER.)
- WITH SEAL
- Designates a PARTICULAR KIND of current money as payment(eg. I
promise to pay A or order P1000 in Central Bank of fifty peso
bills.)
Section 7 Payable on DEMAND when:- EXPRESSED to be payable ON
DEMAND, at sight, or on presentation
- NO TIME for payment is expressed(eg. Pay to A or order
P1000)
Where the instrument is issued, accepted, or indorsed when
OVERDUE, it is, as regards the person so issuing, accepting, or
indorsing it, PAYABLE ON DEMAND.*An OVERDUE instrument is a DEMAND
paper. A HOLDER has immediate right of payment for money
promised/ordered to be paid.Instead of ON DEMAND, other acceptable
terms can be used:- at sight (used in BofE)- on presentation- on
call- at anytime called for
*PAYABLE ON DEMAND as regards the MAKER (late issuance), the
ACCEPTOR (late received), the INDORSER (late indorsed)
Section 8 Instrument may be drawn PAYABLE TO THE ORDER of:-
PAYEE; not maker/drawer/drawee
- drawer(eg. Pay to the order of myself P1000)or maker(eg. I
promise to pay to the order of myself P1000)
- 2 or more PAYEES jointly(eg. Pay to the order of A and B
P1000)
- 1 or more of several PAYEES(eg. Pay to the order of A or B
P1000)
- HOLDER OF AN OFFICE at the time being(eg. Pay to the order of
the Commissioner of BIR)
*An instrument is PAYABLE TO ORDER where it is drawn payable:1.
to the order of a specified person2. to him or his
orderConsequently, an instrument payable to a SPECIFIED person (eg.
Pay to A) is NON-NEGOTIABLE as the promise/order is LIMITED to
paying one person.
*to the order of, or order, to A and his assigns can be
used.
*NO PAYEE, not named, not described NON-NEGOTIABLE because there
would be nobody who could indorse the instrument and nobody who
could give the order or authority to collect.
Section 9 PAYABLE TO BEARER WHEN:- Expressed to be SO
PAYABLE.(But an instrument payable to bearer, A is NON-NEGOTIABLE,
since the word BEARER in such case describes A, therefore, payable
to A DEFINITE PERSON ONLY)
- Payable to person named therein or BEARER.(eg. Pay to A or
bearer P1000; Pay to B or holder P1000)
- Payable to order of FICTITIOUS PERSON and such fact was KNOWN
to person making it so payable.(eg. Pay to King Kong or order
P1000)* The bill is PAYABLE TO BEARER and NOT TO ORDER because King
Kong is a fictitious (feigned/pretended) person.
- Name of PAYEE is not name of any person.(eg. Pay to the order
of Queen of Planet Venus)(eg. Pay to cash, Pay to money, Pay to
sundries)*The intention of the DRAWER is to make the instrument a
BEARER PAPER negotiable by delivery.
- Only/last INDORSEMENT is indorsement in BLANK.
*The word INDORSEMENT, as used in the law, refers only to
NI.
Section 10 Terms, sufficient when:CLEARLY INDICATE THE INTENTION
to conform the requirements thereof.
*A MERE defect in language/grammatical error still
NEGOTIABLE
Section 11 Presumption as to dateIf instrument BEARS A DATE, it
is PRESUMED to be the TRUE DATE (prima facie) made by maker, drawn
by drawer, accepted by drawee, or indorsed by payee/holder.*He who
claims that some other date is the true date has the burden to
ESTABLISH the CLAIM.Section 12 Ante-dated and Post-datedInstrument
is VALID although it is ANTE-DATED (earlier than true date) or
POST-DATED (later than true date), provided that it is NOT DONE for
illegal/fraudulent purpose (eg. Bouncing check, NSF).The person TO
WHOM an instrument is dated is delivered acquires the TITLE thereto
as of the date of delivery.The ANTE-DATED/POST-DATED may be
negotiated BEFORE/AFTER the date given as long as it is NOT
NEGOTIATED AFTER ITS MATURITY.
Section 13 Date may be inserted when:1. an instrument is payable
at a fixed period AFTER DATE but is ISSUED UNDATED,2. an instrument
is payable at a fixed period AFTER SIGHT but the ACCEPTANCE is
UNDATED
ANY HOLDER may insert therein the true date of issue/acceptance
and the instrument shall be payable accordingly.
The insertion of a WRONG DATE DOES NOT avoid the instrument in
the hands of the SUBSEQUENT HDC; but as to him the date so inserted
is to be regarded as the TRUE DATE.
*The insertion of WRONG DATE constitutes MATERIAL ATERATION.
Section 14 INCOMPLETE and DELIVERED (personal defense)(4)
RULES1. AUTHORITY TO FILL UP THE BLANKS- The HOLDER/person in
possession has prima facie authority TO COMPLETE an INCOMPLETE
INSTRUMENT by filling up the blanks thereinThe law speaks of
MATERIAL PARTICULAR (blanks for date, due date, name of PAYEE,
amount, rate of interest) may be filled in. It has been held that
even the blank for the name of the DRAWER may be filled up.
*The authority to complete is not an authority to alter. So, the
HOLDER has NO AUTHORITY to change the amount after it has been
filled in, or to insert the words OR ORDER or OR BEARER after the
name of the PAYEE.
2. AUTHORITY TO PUT ANY AMOUNT- A signature on a BLANK paper
delivered in order to be converted into a NI is a prima facie
authority to fill it up as such for any amount.
3. RIGHT AGAINST PARTY PRIOR TO COMPLETION- If an instrument is
incomplete when delivered, the HOLDER has prima facie authority to
fill up the blanks thereon.- If a blank paper is delivered by the
person making the signature, the HOLDER has prima facie authority
to fill it up for any amount if the person making the signature
INTENDED TO CONVERT it into NI.- In either case of the above (2)
situations, the presumption is that the BLANK was filled in
ACCORDANCE W/ THE AUTHORITY GIVEN and W/IN REASONABLE TIME.
4. RIGHT OF HDC- not enforceable; personal defenses- The rule is
founded upon the principle that where one of 2 persons must suffer
by the bad faith of another, the loss must fall upon the one who
FIRST REPOSED confidence and made it possible for the loss to
occur.
Section 15 INCOMPLETE and UNDELIVERED (real defense)When an
INCOMPLETE instrument is UNDELIVERED, if completed & negotiated
w/o authority, be a VALID CONTRACT in the hands of ANY HOLDER, as
against any person whose signature was placed thereon before
delivery.
In the absence of any delivery, the instrument though complete
in all particulars, there is NO CONTRACT.
(2) RULES1. DEFENSE EVEN AGAINST HDC- Law is specific that
instrument is NOT a VALID CONTRACT in the hands of any HOLDER even
HDC.
2. DEFENSE AVAILABLE TO PARTIES PRIOR TO DELIVERY- The
invalidity of the instrument is only w/ reference to the parties
whose signatures appear on the instrument BEFORE and NOT AFTER
DELIVERY.(eg. A(maker) P(steals) B C D; Instrument can be enforced
against P, B, C because, as indorsers, they warrant that the
instrument is GENUINE and in all respects what it purports to be,
etc. As their signatures appear on the instrument after delivery,
the instrument is valid as to them; In case of P, he is liable not
merely because he is an indorser but also because he is the one
responsible for the theft, and the completion and negotiation of
the instrument.)
Section 16 COMPLETE and UNDELIVERED (personal defenses)(4)
RULES1. UNDELIVERED Every contract on NI even if it is completely
written is INCOMPLETE AND REVOCABLE UNTIL it is delivery for the
purpose of giving it effect.
a. DELIVERY transfer of possession, actual/constructive, from
one person to another. It may be made either by the maker/drawer
himself or through a duly authorized agent.
b. ISSUE FIRST delivery of the instrument, complete in form, to
a person who takes it as HOLDER.
C. HOLDER PAYEE/INDORSEE of bill/note who is in possession of
it, or the BEARER thereof.
2. IN POSSESSION OF PARTY OTHER THAN HDC- If a complete
instrument is found in the possession of an IMMEDIATE PARTY (know
the conditions/limitations placed upon delivery of instrument) or a
REMOTE PARTY (indirect contractual relation to each other) other
than HDC, there is prima facie presumption of delivery but subject
to rebuttal.- An UNDELIVERED instrument is INOPERATIVE because
DELIVERY is a PREREQUISITE to LIABILITY. However, if instrument is
NO LONGER in the possession of the person who signed it and it is
COMPLETE in its terms, a VALID AND INTENTIONAL delivery by him is
PRESUMED until the contrary is proved.
3. DELIVERED UNCONDITIONALLY OR FOR A SPECIAL PURPOSE- If
delivery was made/authorized, it may be shown to have been
conditional, or for a special purpose only and not for the purpose
of transferring the property (title) to the instrument.- When
delivery is made, it is presumed to be made w/ the intention to
transfer ownership of the instrument to the payee.- (eg. A delivers
the note to B on condition that it will not be binding on him UNTIL
co-maker has been procured or for safekeeping, or for collection
only.B cannot enforce the instrument against A because A can set up
the defense that the delivery was conditional or for a special
purpose only and not for the purpose of transferring title to the
instrument.
4. IN THE HANDS OF HDC- If a COMPLETE instrument is in the hands
of HDC, a valid delivery thereof by all parties PRIOR to him is
CONCLUSIVELY PRESUMED.A presumption is said to be CONCLUSIVE when
it admits of no evidence to the contrary
Section 17 Construction where instrument is AMBIGUOUSa. Sum
payable expressed both in WORDS and in FIGURES, and there is
discrepancy between the two, SUM in WORDS is SUM PAYABLE; but if
WORDS are AMBIGUOUS/UNCERTAIN, FIGURES may be the reference.
b. Instrument w/ interest but NO DATE specifies, interest runs
from the date of instrument; if instrument is UNDATED, from issue
thereof.
c. Instrument UNDATED, considered to be dated as of time it was
ISSUED.
d. Conflict between WRITTEN and PRINTED provisions of
instrument, WRITTEN provisions prevail.*The reason for the rule is
that the written words are deemed to express the true intention of
the MAKER/DRAWER because they are placed there by himself w/o any
particular contract in view.
e. Instrument is AMBIGUOUS whether note or bill, the HOLDER may
treat it as EITHER at HIS ELECTION.
f. Signature placed in instrument UNCLEAR what capacity person
making the same intended to sign, he is deemed INDORSER.*Signature
of: (usually)MAKER lower right-hand cornerDRAWEE lower left-hand
cornerHOLDER - back
g. Instrument contain words I promise to pay signed by TWO OR
MORE PERSONS, they are deemed to be JOINTLY AND SEVERALLY LIABLE
thereon.*I promise to pay signed by 2 or more persons SOLIDARY
LIABILITY (anyone of the signers may be held liable for the whole
amount of instrument)*We promise to pay signed by 2 or more persons
JOINT LIABILITY (there are as many debts are there are debtors,
each debt being considered distinct and separate from each
other)
Section 18 Liability of person signing in trade or assumed
nameGENERAL RULE: Only persons whose signatures appear on an
instrument ARE LIABLE thereon.EXCEPTIONS:a. Where a person signs in
a trade or assumed name.b. The PRINCIPAL is liable if a duly
authorized agent signs on his own behalf.c. In case of forgery, the
FORGER is LIABLE even if his signature does not appear on the
instrument.d. When the ACCEPTOR makes his acceptance of a bill on a
SEPARATE paper.e. Where a person makes a WRITTEN promise to ACCEPT
a BILL BEFORE it is drawn.
Section 19 Signature by agent; authority; how shown- The
MAKER/DRAWER may sign the instrument PERSONALLY or by another DULY
AUTHORIZED by him.
- The authority of the AGENT may be shown, as in other cases of
agency, to have been given ORALLY or in WRITING subject to the
provisions of the STATUTE OF FRAUDS. It has been held competent for
the AGENT to sign simply the PRINCIPALS NAME and to show his
authority to do so by other evidence.
Section 20 Liability of person signing as agent, etc.(3) When
agent MAY ESCAPE personal liability:1. He is duly authorized;2. He
add words to his signature indicating that he signs AS AN AGENT,
that is, for or on behalf of a principal, or I a representative
capacity;3. He discloses his PRINCIPAL.
*The MERE addition of DESCRIPTIVE WORDS w/o DISCLOSING the
PRINCIPAL will not relieve signer from personal liability, although
he add to his signature the word AGENT, TRUSTEE, ADMINISTRATOR,
GUARDIAN, or DIRECTOR (words added are but description personae
describing the person who signed the instrument)
Section 21 Effect of signature by PROCURATIONPROCURATION act by
w/c a PRINCIPAL gives power to another to act in HIS PLACE as he
could himself.- has special and technical meaning; gives a WARNING
that the AGENT has but a LIMITED AUTHORITY so that IT IS the duty
of the person dealing w/ him to INQUIRE into the extent of his
(AGENT) authority.
*The PRINCIPAL is NOT BOUND if the agent has exceeded the ACTUAL
LIMITS of his authority, although he may acted w/in the general
scope of the agency.
(eg. A signature by procuration may be made as follows:
A MercadoPer Procuration: B San Miguel
Instead of per procuration, per proc., P.P., or pp may be
used.
Section 22 Effect of indorsement by INFANT or CORPORATIONThe
indorsement/assignment of the instrument by a corporation or by an
infant PASSES the property therein, notwithstanding that from want
of capacity, the corporation or infant may incur NO LIABILITY
thereon.
EFFECT OF INDORSEMENT BY INCAPACITATED PERSONS1. MINORS- As a
general rule, contracts entered into by a minor ARE VOIDABLE at his
instance or at the instance of his guardian. a. While MINOR NOT
BOUND by his indorsement for lack of capacity, he CAN TRANSFER
certain RIGHTS. Minority is a real defense available to MINOR. b. A
MINOR may be BOUND where he is guilty of ACTUAL FRAUD committed by
specifically stating that he is of age, when, in fact he is
not.
2. OTHER INCAPACITATED PERSONS- As far as such persons
(incapacitated, insane, demented, deaf-mutes, etc) are concerned,
THEIR CAPACITY IS A REAL DEFENSE, that is, available even against
HDC.
EFFECT OF INDORSEMENT BY A CORPORATIONAs regards corporations,
Section 22 applies to cases where corporation has committed ultra
vires acts (acts beyond its powers).It has been held that a
corporation IS NOT LIABLE on notes in a suit thereon by an
indorsee, where the corporation is WITHOUT CAPACITY to make the
contract in fulfilment of w/c they are executed.
Section 23 Effect of FORGED signature
FORGERY counterfeit-making or fraudulent alteration of any
writing w/ INTENT TO DEFRAUD (eg. Signing of anothers name;
alteration of an instrument in the name,a mount, description of
person and the like)- a REAL DEFENSE even against HDC
(2) Cases where SIGNATURE is wholly INOPERATIVE and NO RIGHT can
be acquired through the FORGED SIGNATURE:1. Where signature on
instrument is affixed by one who DOES NOT claim to act as an agent
and who has NO AUTHORITY to bind the person whose signature he has
forged; and2. Where signature is affixed by one who purports to be
an AGENT BUT NO AUTHORITY to bind the ALLEGED principal.
(2) CASES OF FORGERY IN GENERAL1. Forgery of PROMISSORY NOTES-
indorsement of the note- MAKERs signature
2. Forgery of BILLS OF EXCHANGE- indorsement of the bill-
DRAWERs signature (either w/ acceptance by DRAWEE; or w/o such
acceptance but the bill is paid by DRAWEE)
*Section 23 DOES NOT purport to declare the instrument TOTALLY
VOID nor the GENUINE signatures thereon INOPERATIVE. IT IS ONLY THE
FORGED/UNAUTHORIZED SIGANTURE that is declared to be INOPERATIVE.In
other words, RIGHTS MAY STILL EXIST and be enforced by virtue of
such instrument as to those whose signature thereto are found to be
genuine.
M P A, X (obtains possession of note and forged As signature) B
C
C cannot enforce the instrument against M and P because Cs
rights against them are CUT OFF by the FORGED SIGNATURE of A w/c is
WHOLLY INOPERATIVE.
Neither can C enforce the note against A because As signature is
wholly inoperative. C has NO RIGHT to retain, discharge, or ENFORCE
PAYMENT OF, the note UNDER the forged signature of A.
But C may go against B whose signature is GENUINE and therefore,
OPERATIVE. B is a GENERAL INDORSER who warranted to C that the
instrument is GENUINE and was VALID and SUBSISTING (existing) at
the time of Bs indorsement.
Of course, B or C has a right of recourse against X, the
forger.
A can recover from M and P because his rights against them WERE
NOT affected by forgery. The signature of M and P are genuine and
they are liable to A on their contract.
2 EXCEPTIONS TO THE GENERAL RULE THAT NO RIGHT/TITLE CAN BE
ACQUIRED TO AN NI THROUGH OR UNDER A FORGED/UNAUTHORIZED
SIGNATURE1. If the party against whom it is sought to enforce such
right is PRECLUDED (stopped) from setting up forgery or want of
authority; and2. Where forged signature is NOT necessary to the
HOLDERS TITLE in w/c case the forgery may be DISREGARDED.(2)
PERSONS PRECLUDED FROM SETTING UP THE DEFENSE OF FORGERY1. Those
who by their acts, silence, or negligence are estopped from setting
up the defense of forgery; and2. Those who warrant/admit the
genuineness of the signatures in question, namely: a. indorsers b.
acceptors c. persons negotiating by delivery
READ pp.76-77
(4) RIGHTS OF PARTIES IN CASES OF FORGED INSTRUMENTS1. Where
note payable to order- Where the note is payable to ORDER, the
party whose indorsement (inoperative) is forged IS NOT LIABLE to
any holder even HDC.- The other parties (including the MAKER) prior
to the party whose signature is forged ARE NOT ALSO LIABLE to ANY
HOLDER. The instrument being payable to order, can be negotiated
ONLY BY INDORSEMENT COMPLETED BY DELIVERY. But since the
indorsement is forged, it is INOPERATIVE, and therefore, cannot
operate to transfer ANY RIGHT/TITLE over the instrument.
2. Where note payable to bearer- Where the note, mechanically
complete, is originally payable to bearer, the party whose
indorsement is forged is LIABLE to HDC but NOT to one who IS NOT
HDC.- The other parties (including the MAKER) prior to the party
whose signature is forged, MAY ALSO BE HELD LIABLE by one who is
NOT HDC.The reason is that the instrument being originally payable
to bearer, it can be negotiated by MERE DELIVERY even w/o
indorsement. Hence, even if the indorsement is forged, the FORGERY
MAY BE DISREGARDED.
3. Where bill payable to order- Where the bill is payable to
ORDER, the party whose indorsement (inoperative) is forged IS NOT
LIABLE to any holder even HDC. a. If DRAWEE pays under a forged
indorsement, DRAWER NOT LIABLE on the bill and DRAWEE may not debit
the DRAWERs account. b. Where, however, checks received MERELY FOR
COLLECTION and deposit, the bank, as agent, CANNOT BE EXPECTED to
know/ascertain the GENUINENESS of all PRIOR indorsements.
4. Where bill payable to bearer- In case the bill is originally
payable to BEARER, the DRAWEE may debit the DRAWERs account in
spite of the forged indorsement. The reason is that the forged
instrument is NOT NECESSARY to the title of the holder. The DRAWEE
cannot recover from the HOLDER.
Section 30 What constitutes negotiationNegotiation to constitute
the transferee the HOLDER thereof
2 METHODS OF NEGOTIATION1. BEARER delivery2. ORDER indorsement
then delivery
*ANY person in possession of BEARER instrument is ALWAYS the
bearer thereof, although he may have NO legal RIGHT thereto.
Meaning, if instrument is negotiated to HDC, the latter may acquire
BETTER RIGHT than transferor.
*NO NEGOTIATION if the transfer does NOT make the transferee the
HOLDER of instrument.(eg. If M makes a note payable to P or order,
then P delivers w/o indorsement to A, negotiation is NOT affected
because A, by such transfer, DOES NOT become the HOLDER.) just an
ordinary ASSIGNMENT because it is ORDER instrument but NOT
indorsed.
*PAYMENT of check (or other bill) by drawee-bank is NOT
NEGOTIATION and does NOT make bank the HOLDER; BANK is not the
payee or indorsee; check is EXTINGUISHED and CANNOT be put in
circulation again to bind the drawer or indorser.
* The writing of HOLDERs name on the back of the check before
surrendering for PAYMENT to drawee-bank is NOT INDORSEMENT.
Signature merely serves as RECEIPT OF MONEY. Upon payment, the
CHECK becomes merely a VOUCHER, NOT a transfer of TITLE
thereto.
3 BASIC METHODS TO TRANSFER NI1. ISSUE 1st DELIVERY of
instrument COMPLETE in form to a person who takes it as HOLDER -
1st TRANSFER of instrument to PAYEE2. NEGOTIATION - to constitute
the transferee the HOLDER thereof3. ASSIGNMENT assignee is placed
in the position of assignor; assignee acquires instrument subject
to personal and real defenses available against assignor
*NI can be NEGOTIATED or ASSIGNED; NON-NI can only be
ASSIGNED/TRANSFERRED, NOT negotiated.
--------------------------------------------------------------------------*Indorsement
NOT ONLY mode of transfer but also involves NEW CONTRACT and
OBLIGATION on part of INDORSER an IMPLIED guaranty that instrument
be paid according to terms thereof.
NEGOTIATIONASSIGNMENTOnly to NIAll contractsTransferee is
HOLDERTransferee is ASSIGNEEHDC - REAL defensesASSIGNEE PERSONAL
and REAL defensesMay acquire BETTER title than PRIOR partyMerely
steps in shoes of ASSIGNORGENERAL INDORSER warrants SOLVENCY of
PRIOR partiesASSIGNOR does NOT warrant SOLVENCY of prior parties
(unless stipulated or INSOLVENCY known to him)INDORSER NOT LIABLE
(unless there is PRESENT-MENT and NOTICE of DISHONOR)ASSIGNOR IS
LIABLE even w/o NOTICE OF DISHO-NORGoverned by NILGoverned by CIVIL
CODE on assignment of credits
Can there be negotiation to a PAYEE?MAKER/DRAWER PAYEE payee
acquires title by ISSUANCE, NOT negotiationMAKER/DRAWER AGENT of
MAKER/DRAWER PAYEE payee acquires title by NEGOTIATION
*If negotiation refers to instrument already completely
executed/ISSUED, then ONLY HOLDERS SUBSEQUENT TO PAYEE can acquire
title by NEGOTIATION.
*There is NEGOTIATION also to PAYEE when instrument delivered
BACK to him by LAST HOLDER. (In such case, indorsement of LAST
HOLDER not necessary because PAYEE is remitted to his FORMER
RIGHTS, and all intervening parties are DISCHARGED from
LIABILITY.)
Section 31 Indorsement; how madeIndorsement be written on
INSTRUMENT itself or upon paper attached (allonge)
thereto.Signature of INDORSER, w/o additional words, is SUFFICIENT
INDORSEMENT.
INDORSEMENT (from Latin in dorsa writing on the back) writing of
indorsers name on the instrument w/ the intent EITHER 1.) to
transfer TITLE to the same, or 2.) to STRENGTHEN security of HOLDER
by assuming contingent liability for its future payment, OR
BOTH.
*Indorsement w/o delivery conveys NO TITLE and NO HOLDER.
NECESSITY (SIGNIFICANCE) OF INDORSEMENTS1. Essential to the
execution and for FURTHER NEGOTATION of ORDER instrument.(eg. Note
payable: to the order of P, P must indorse it BEFORE it can be
further negotiated)2. Not necessary to a mere ASSIGNMENT.(Thus, one
can acquire title w/o indorsement of ORDER instrument but he CANNOT
be HDC thereof although entitled to indorsement made.)3. Determines
SUBSEQUENT negotiations or transfer of instrument.(Indorsement may
determine whether another indorsement can be further negotiated
[special indorsement] w/ indorsee name;or NO further indorsement
required for negotiation because it is converted into a BEARER
instrument negotiated by DELIVERY [blank instrument] w/ indorsee
signature only;or RESTRICTED for further negotiation [restrictive
indorsement] w/ additional words w/c prohibit/limit further
negotiation)
FORM OF INDORSEMENTLaw does NOT require EXCLUSIVE FORM by w/c
indorsement be accomplished but it must be IN WRITING.Just like
signature of maker/drawer, INDORSEMENT may be written in INK,
PRINTED, (RUBBER) STAMPED, TYPEWRITTEN, or any means that will
create a mark.
LOCATION OF INSTRUMENT1. On instrument itself*As a matter of
practice, indorsement is WRITTEN AT THE BACK of instrument
(referred to as dorsal portion of instrument) but it may be written
on the face (although it would entail risk of being held liable as
co-maker [PN] or co-drawer [BofE].2. Upon paper attached thereto
(allonge)*A paper that is merely clipped/pinned to an instrument is
NOT an ALLONGE, and anything written on it CANNOT be considered as
INDORSEMENT. Accordingly, person in possession of instrument is NOT
the HOLDER.
*If there is still space for indorsements, the use of ALLONGE
should be avoided so as not to cause CONFUSION on ORDER OF
LIABILITY of indorsers.
Section 32 Indorsement must be of entire instrument(object of
provision: to avoid multiplicity of suits/actions in court)NO
NEGOTIATION if indorsement transfer ONLY PART of AMOUNT payable
(not HOLDER but merely is an ASSIGNEE; renders instrument
NON-NEGOTIABLE, NOT PAYEE/BEARER of note, NOT INDORSEE.(eg. The
total payable is P10 000, Pay to A P8 000 NOT VALID
NEGOTIATION)Exception to entirety: Where instrument has been paid
in part, it may be indorsed as to the RESIDUE.(eg. The total
payable is P10 000, P2 000 is already paid. Pay to A P8 000 VALID
NEGOTIATION)
NO NEGOTIATION if indorsement transfer instrument to 2 or more
indorsees severally. (eg. Pay to A P8 000 and pay to B P2 000 NOT
VALID NEGOTIATION)
However, there is VALID NEGOTIATION if indorsees are JOINT.(eg.
Pay to A and B P10 00 VALID NEGOTIATION) A and B must BOTH indorse
UNLESS they are PARTNERS, or one is authorized to indorse for both
of them, in w/c case, only one may indorse.
Section 33 Kinds of Indorsement5 CLASSIFICATIONS OF
INDORSEMENT1. As to the METHODS OF NEGOTIATIONSpecialBlank2. As to
the KIND OF TITLE TRANSFERREDRestrictiveNon-restrictive3. As to the
SCOPE OF LIABILITY OF INDORSERQualifiedUnqualified (general)4. As
to the PRESENCE/ABSENCE OF LIMITATIONSConditionalUnconditional5.
Other kinds of indorsementsJOINT payable to two or more persons
jointlySUCCESSIVE in succession by several indorsers who are liable
prima facie in ORDER in w/c they indorseREGULAR Delivery
IndorsementIRREGULAR (ANOMALOUS) (placed signature in blank before
delivery) Indorsement DeliveryFACULTATIVE indorser ENLARGES his
liability by writing over his signature a WAIVER of usual demand
(formal protest) and NOTICE OF NON-PAYMENT (dishonor).
Section 34 Special, and blank indorsementSPECIAL indorsement w/
indorsee name; can be further negotiated.[eg. Pay to A; Pay to the
order of A; Pay to A or order (Sgd.) B]
*If instrument originally payable to ORDER, INDORSEMENT
NECESSARY for FURTHER negotiation of instrument.
*If instrument originally payable to BEARER, it may be further
negotiated by indorsement or even by mere delivery but REMAINS a
BEARER instrument even if specially indorsed. (BEARER ALWAYS A
BEARER.)
BLANK indorsement specifies no indorsee; can be negotiated by
DELIVERY because it becomes a BEARER instrument.[eg. I promise to
pay A or order P10 000 (Sgd.) BA (payee) may indorse the instrument
in blank by SIMPLY writing his signature at BACK of instrument:
(Sgd.) A ]
*If instrument is payable to ORDER on its face and the ONLY or
LAST indorsement is in BLANK, it is CONVERTED into BEARER
instrument.
*If instrument is payable to BEARER on its face, ANY
indorsement, whether SPECIAL or BLANK, does NOT change as BEARER
instrument. (BEARER ALWAYS A BEARER.)
*A BLANK INDORSEMENT may be negotiated by delivery, or by
indorsement and delivery.However, ORDER instrument SPECIALLY
INDORSED AFTER BLANK INDORSEMENT reacquires status as ORDER
INSTRUMENT.(eg. ORDER instrument indorsed: SPECIAL SPECIAL BLANK
(becomes a BEARER instrument) SPECIAL (becomes ORDER instrument,
again) SPECIAL)
Section 35 Blank SPECIAL- Done by writing APPROPRIATE words OVER
the signature of indorser in blank.- The INDORSEE CANNOT add to the
indorsement ANY contract INCONSISTENT w/ character of indorsement.
(eg. Adding protest waived; Demand and notice waived; Without
recourse; if such was NOT THE INTENTION of parties. Also, adding I
hereby guaranty payment will make INDORSER LIABLE as GUARANTOR and
thus NOT ENTITLED to NOTICE in case of DISHONOR.)
*The INSERTION of UNATHORIZED contracts constitutes MATERIAL
ALTERATION and AVOIDS INDORSEMENT.
[eg. BLANK SPECIALM P (special) A (blank) B (beomes BEARER) (if
indorse specially, negotiation will be effected only indorsement) C
(special indorsee)In example, the indorsement by P A and A B may
appear:Pay to A (Sgd.) P (sgd.) A
B, as HOLDER of instrument w/ BLANK indorsement, may PROTECT
himself by converting it into SPECIAL indorsement, as for example,
by writing Pay to B, thereby indorsing it to himself. Thus, the ff
will appear:
Pay to A (Sgd.) P Pay to B (sgd.) ASection 36 Restrictive
indorsement:RESTRICTIVE INDORSEMENT RESTRAINS the negotia-bility of
instrument for purpose or to the person stated therein.
a. Prohibits further negotiation of instrument.(becomes
NON-NEGOTIABLE)Pay to A onlyPay to A and to no other personHere, A
is the only one authorized to receive payment.
b. Constitutes INDORSEE the AGENT OF INDORSER (AGENCY type:
AGENT NO TITLE to instrument; holds instrument as AGENT of
principal, the restrictive indorser subject to restrictive
indorsement.)Pay to B for collectionPay to B for collection and
remittancePay to B for collection onlyPay to B for deposit
c. Vests title in INDORSEE in TRUST for or use of some other
person(TRUST type: transfers TITLE to INDORSEE NOT FOR HIMSELF but
in trust of for BENEFIT of another person including INDORSER. The
INDORSEE CANNOT NEGOTIATE instrument for OWN BENEFIT BUT FOR
BENEFICIAL OWNER.)Pay to C in trust for DPay to C as trustee for
DPay to A for my usePay to C for the use of D
Mere absence of words of negotiability does NOT make the
indorsement restrictive.
*BUT if there are restrictive words stated like only, it
prevents further negotiation, become restrictive indorsement, and
NON-NEGOTIABLE.