Professional Documents
Culture Documents
Negotiable Instrument
It is a transferable instrument containing an unconditional promise or order
to pay to a holder or to the order of a holder upon issue, possession,
demand or at a specified time
Written contract for the payment of money, by its form intended as
substitute for money and intended to pass from hand to hand to give the
HDC the right to hold the same and collect the sum due.
Instruments are negotiable when they conform to all the requirements
prescribed by the NIL (Act 2031, 03 February 1911).
Negotiable instruments shall produce the effect of payment only when they
have been encashed or when through the fault of the creditor they have been
impaired. (Art. 1249, CC) BUT a CHECK which has been cleared and
credited to the account of the creditor shall be equivalent to a delivery to the
creditor of cash.
Negotiable
Contains all the requisites of Sec. 1 of
the NIL
Transferred by negotiation
HDC may have better rights than
transferor
Prior parties warrant payment
Non-negotiable
2. negotiation
3. presentment for acceptance in certain bills
4. acceptance
5. dishonor by or acceptance
6. presentment for payment
7. dishonor by nonpayment
8. notice of dishonor
9. protest in certain cases
10. discharge
A. REQUISITES OF NEGOTIABILITY
All negotiable instruments, briefly stated, are a contractual obligation to
pay money. However, whether or not an instrument is negotiable depends
entirely on its form and content.
In determining the negotiability of an instrument, the following must be
considered:
1) The whole of the instrument;
2) Only what appears on the face of the instrument; and
3) The provisions of the Negotiable Instruments Law especially Section 1
thereof which gives the requirements of negotiability.
In determining whether the instrument is negotiable, only the instrument
itself and no other, must be examined and compared with the requirements
stated in Sec. 1, NIL.
If it appears on the instrument that it lacks one of the requirements, it is not
negotiable and the provisions of the NIL do not govern the instrument. The
requirement lacking cannot be supplied by using a separate instrument in
which that requirement which is lacking appears.
Form of Negotiable Instruments
An instrument to be negotiable must conform to the following requirements:
(a) It must be in writing and signed by the maker or drawer;
(b) Must contain an unconditional promise or order to pay a sum certain in
money;
1. It must be in writing
a. Physical Integrity of Whole Instrument the negotiability of an instrument
must be determined only from the face of the document itself and not
elsewhere (Des Moines Savings Bank v. Arthur, 163 la. 205, 143 NW 556).
CALTEX V. CA (1992)
The negotiability or non-negotiability of an instrument is
determined from the face of the instrument itself. The duty of the
court in such case is to ascertain, not what the parties may have
secretly intended but what is the meaning of the words they have
used.
b. A commercial transaction may be verbal unless the law requires a written
document for its validity. Writing is required for negotiable instruments.
Hence, there can be no verbal promissory note nor a bill of exchange. In
short, the requisites for the validity of a negotiable instrument are: (a)
consent, (b) consideration, (c) subject matter, and form.
c. As a general rule, bills, notes and other instruments of similar nature are not
subject to be varied or contradicted by parol or extrinsic evidence pursuant
to the rule that long experience that written evidence is so much more
certain and accurate than that which rests in fleeting memory only, that it
would be unsafe, when parties have expressed the terms of their contract in
writing, to admit weaker evidence to control and vary the stronger and to
show that the parties intended a different contract from that expressed in the
writing signed by them BUT if there is an allegation of fraud in the
execution of promissory note, such as when the note having a face value of
P50,000.00 was alleged to have been signed by the makers at only
P5,000.00, where a parol contemporaneous agreement was the inducing and
moving cause of the written contract, it may be shown by parol evidence;
but it must be established by clear and convincing evidence, mere
iv.
Although the mere use of polite words like "please" does not of itself
deprive the instrument of its characteristics as an order, its language
must clearly indicate a demand upon the drawee to pay.
B. UNCONDITIONAL
a. The promise or order to pay, to be unconditional, must be unqualified.
b. Sec.
3, NIL: An unqualified order or promise to pay is
unconditionalthough coupled with:
An indication of a particular fund out of which reimbursement is to
be made, or a particular account to be debited with the amount
UNCONDITIONAL: Mere indication of the particular fund out of
which reimbursement is to be made, or an indication of a
particular account to be debited with the amount
When X will die is not certain, but X is sure to die. This is a period.
The instrument is negotiable
2. Under Section 39 of theNIL, a condition in the endorsement would not
destroy negotiability of the instrument. Thus:
See: Elizalde & Co. V. Binan Trans. Co. (CA) 58 O.G. 5886 (1960)
Reference in a promissory note to some extrinsic agreement, in order to
destroy its negotiability, must be such as to indicate unmistakably that
the paper is to be burdened with conditions of that agreement. When the
reference is a simple recital of the consideration for which the paper was
given, or is a mere mention of origin of the transaction, its negotiability
is not affected.
C. A SUM CERTAIN IN MONEY
1.
2.
3.
Illustrations:
As provided for under Section 2, the following are still negotiable
instruments, to wit:
1.
Pay to A or order P500 with interest at 12% per annum
2.
Pay to A or order P500payable in monthly instalments of
P100
3.
1.
Pay to A or order P500 in monthly instalments of P100 and
failure to pay one instalment will make the entire fall due
immediately
4.
Pay to A or order and in the event of litigation, I agree to
on demand
a. when expressed to be payable on demand, or at sight, or on presentation;
(Sec. 7, NIL)
b. when no time for payment expressed, (Sec. 7, NIL)
c. Special Rule: where an instrument is issued, accepted or indorsed when
overdue, it is, as regards the person so issuing, accepting, or indorsing it,
payable on demand or at a fixed or determinable future time
at a fixed time
o Only on the stipulated date, and not before, may the holder demand its
payment.
o Should he fail to demand payment, the instrument becomes overdue but
remains valid and negotiable. It is merely converted to a demand
instrument.
3.
4.
5.
[Check]
Pay to B or order P500
(Sgd.) B
To: PNB
[this means that B has a deposit with PNB and he wants to
withdraw the amount indicated.]
(g) When the instrument is payable to order, the payee must be named or
otherwise indicated therein with reasonable certainty. This requirement
is imposed as if there is no payee, there is NOBODY WHO COULD
GIVE THE ORDER OR AUTHORITY TO COLLECT. THERE IS NO
ONE WHO CAN ENDORSE THE DOCUMENT AND CAN THUS BE
SAID TO BE NOT NEGOTIABLE.
It would seem in Equitable Banking Corp. V. IAC, 161 SCRA 518
(1988), the contravention of this rule (such as when the check is payable to
Equitable Banking Corporation order of A/C of Cavilled Enterprises, Inc.)
would not render the instrument non-negotiable but would merely place the
burden of ambiguity to the person who caused it under Art. 1377 of the
Civil Code.
Order Instrument, negotiation requires delivery and indorsement of the
transferor.
o When instrument is payable to order: Drawn payable to the order of a
specified person or to him or his order (Sec. 8, NIL).
o Without the words "to order" or "to the order of," the instrument is
payable only to the person designated therein and is therefore nonnegotiable. (Campos, as cited in Consolidated Plywood Industries v
IFC Leasing, 1987)
Subject to the rules in Section 13, 14 and 15 on incomplete instruments,
leaving the payee blank may make the instrument non-negotiable. This is
because an instrument payable to order may be negotiated only by
endorsement and delivery.
There are only two ways to make an instrument payable to order, as
provided under Sec. 8
Pay to a or order
(Sgd.) B
The purpose of this requirement is to enable the payee or the holder to know
upon whom he has to call for acceptance or payment
If it is not clear in what capacity the person signed, said person is considered
an indorser
Bill may be addressed to two or more drawees jointly, whether partners or
not, but not to two or more drawees in the alternative or in succession
Bill may be treated as a PN, at option of holder, where
a. drawer and drawee are same person
b. drawee is fictitious/incapacitated
Note however, that under Section 14, the omission of drawee may be filled
in later on.
Notes on Section 1:
a. In order to be negotiable, there must be a writing of some kind, else there
would be nothing to be negotiated or passed from hand to hand. The writing
may be in ink, print or pencil. It may be upon parchment, cloth, leather or
any other substitute of paper.
This instrument has omissions: (a) no date; (B) no place of payment; and (c) no
statement of value received.
No Date: This is supplied by Sec. 17 (c) which states that where instrument is
not dated, it will be considered dated as of time it was issued.
Common
The most common kinds of negotiable instruments in commercial
transactions are the promissory note, bill of exchange, and bank check.
Actually, the negotiable instruments law deals only with two kinds or
types of instruments, namely:
a) promissory notes or those in which the issuer has ordered a third person
to pay; and
b) Bills of exchange or those in which the issuer has ordered a third person
to pay.
Note: Checks are also discussed in the law but they are really a special form
or kind of bill of exchange and not another kind of negotiable
instrument.
>> Check: bill of exchange drawn on a bank payable on demand.
1. Promissory note - a promise to pay money
It is 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 order or to bearer
Promissory Note
Unconditional promise to pay
Involves 2 parties: maker and payee
Maker is primarily liable
Bill of Exchange
Unconditional order to pay
Involves 3 parties: drawer, payee,
drawee/acceptor
Drawee/acceptor is primarily liable
Bill of Exchange
Drawee may be any person
Payable on demand or at a fixed or
determinable future time
It is necessary that it be presented for
acceptance
Check
Always drawn upon a bank
Always payable on demand
Special
There are, to be sure, many various kinds of negotiable instruments. An
analysis of the many variations will reveal, however, that they belong to one
or the other of the types mentioned.
Some other instruments held as negotiable instrument are: certificates of
deposits, bank notes, due bills, bonds and bankers acceptances, while others
are types of bill of exchange.
GEMPESAW v CA (1993)
Every contract on a negotiable instrument is incomplete and
revocable until delivery of the instrument to the payee for the purpose
of giving effect thereto. The first delivery of the instrument, complete
in form, to the payee who takes it as a holder, is called issuance of
the instrument. Without the initial delivery of the instrument from the
drawer of the check to the payee, there can be no valid and binding
contract and no liability on the instrument.
A. INSERTION OF DATE
When date may be inserted
Where an instrument expressed to be payable at a fixed period after date is
issued undated, or where the acceptance of an instrument payable at a fixed
period after sight is undated, any holder may insert therein the true date of
issue or acceptance, and the instrument shall be payable accordingly. The
insertion of a wrong date does not avoid the instrument in the hands of a
subsequent holder in due course; but as to him, the date so inserted is to be
regarded as the true date.
1. Where an instrument is payable at a fixed period after date but is issued
undated.
2. Where an instrument is payable at a fixed period after sight but the
acceptance is undated. (Sec. 13, NIL)
Presumption as to Date
1. Importance of Date of Instrument:
determining when instrument,
endorsement or acceptance is due (maturity); and determing prescription of
a cause of action
2. Date is not an essential element of negotiability
3. An undated instrument is considered to be dated as of the time it was issued
under Section 17
4. When an instrument or acceptance or endorsement thereon is dated, such
date is deemed prima facie to be the true date of the making, drawing, or
acceptance, or endorsement, as the case may be under Section 11, to be
read with Section 53 and 7
5. The instrument is not invalid for the reason only that it is ante-dated or post
dated, provided this is not done for illegal or fraudulent purpose. The
person to whom instrument s dated is delivered acquires the title thereto as
of the date of delivery under Section 12.
Ante-dating is when the instrument contains a date earlier than the true date
of issuance, while postdating is when the instrument contains a date later
than the true date of issuance.
6. WHEN HOLDER IS AUTHORIZED TO PUT A DATE ON THE
INSTRUMENT under Section 13, where an instrument expressed to be
payable at a fixed period after date is issued undated or where the
acceptance of an instrument payable at a fixed period after sight is undated,
any holder may insert thereon the true date of the issue or acceptance and
the instrument shall be payable accordingly.
Effects:
Any holder may insert therein the true date of issue or acceptance and the
instrument shall be payable accordingly. It is necessary that the date of issue
or acceptance, as the case may be, be specified so as to determine the date of
maturity. The reason is that unless the true date is inserted, one will not
know when the instrument will be due.
This is important especially in an instrument that is payable on demand
(Section 71, in order to determine whether holder is a holder in due course
since one of the requisites of such is that he become holder thereof before it
was overdue (See Section 53).
The insertion of a wrong date does not avoid the instrument in the hands of
a subsequent holder in due course. but as to him, the date so inserted (even
if it be the wrong date) is to be regarded as the true date. The insertion of a
wrong date avoids the instrument as to person making such inserting (Bank
of Houston v. Day, 145 Mo. Appl. 410, 122 SW 756). The reason being that
the one who signs such instrument furnishes the means of fraud and is thus
stopped to deny liability thereon.
Example:
1) When instrument is expressed to be payable at a fixes period after date, but
it is issued undated
Or
10 days after date Pay A or order P500
(Sgd.) B
In the case, the date of maturity cannot be determined unless we know
the true date of issue of the note. The true date may be inserted not only by
P but also by any holder after him. But if the holder inserts the wrong date,
the maker shall be liable on wrong date a penalty for his neglect in leaving
the instrument undated
2) When acceptance of instrument payable at a fixed period after sight is
undated
To: C
Accepted
Sgd. C
B. COMPLETION OF BLANKS
Example:
M makes a note for P1,000.00 with the name of the payee in blank and
keeps it in his drawer. P steals the note and inserts his name as payee and
then indorses the note to A, A to B, B to C, and C to D, a holder in due
course. Can d enforce the note against M?
No, because the law is specific that the instrument is not a valid contract in
the hands of any holder. And the phrase any holder includes a holder in
due course. As the signature of M was placed thereon before delivery, he
does not assume any responsibility whatsoever.
In this case a real defense exists. The instrument may be considered a
forgery insofar as M is concerned since both the two steps in the
execution of a negotiable instrument are not complied with. There is,
however, a prima facie presumption of delivery which M must rebut by
proof to the contrary.
Defense available to parties prior to delivery the invalidity of the above
instrument is only with reference to the parties whose signatures appear
on the instrument before and not after delivery.
c. Where the instrument is not dated, it will be considered dated as of the time
it was issued
Issue means the first delivery of the instrument complete in form, to a
person who takes it as holder.
The date appearing in the instrument is deemed prima facie the true date
of its issue, acceptance, or indorsement.
Under Section 17 (c), the instrument is not dated.
d. Where there is a conflict between the written and printed provisions of the
instrument, the written provisions prevail
In case of conflict between the written and printed provisions, the former
prevail.
The reason is that the written words are deemed to express the true
intention of the maker or drawer because they are placed there by him.
e. Where the instrument is ambiguous that there is doubt whether it is a bill or
a note, the holder may treat it as either at his election
Example of this situation is when a bill of exchange where the drawer
and the drawee are one and the same person.
f. Where a signature is so placed upon the instrument that it is not clear in
what capacity the person making the same intended to sign, he is to be
deemed
an
indorser
In case of doubt in what capacity the person making the instrument
intended to sign, he is to be deemed an indorser.
Example:
A promissory note payable to the order of P is signed by M as maker.
If P writes his name across the face of the note, P will be deemed an
indorser. P cannot be an acceptor because the instrument is not a bill of
exchange.
- The signature of the maker of a note or the drawer of a bill is usually
affixed at the lower right hand corner of the instrument.
- The drawees name is usually written on the lower left hand corner.
IV. SIGNATURE
General rule:
A person whose signature does not appear on the instrument is not liable.
Exception:
a. Where a person signs in a trade or assumed name (Sec. 18, NIL);
b. The principal is liable if a duly authorized agent signs on his own behalf
(Sec. 19, NIL);
c. In case of forger (Sec. 23, NIL) the forger is liable even if his signature
does not appear on the instrument;
d. Where the acceptor makes his acceptance of a bill on a separate paper (Sec.
134, NIL); and
e. Where a person makes a written promise to accept a bill before it is drawn.
(Sec 135, NIL)
f.
MINOR
As a general rule, contracts entered into by a minor are voidable at his
instance or at the instance of his guardian.
a) While a minor is not bound by his indorsement for lack of capacity, he is,
however, not incapacitated to transfer certain rights. Minority is not a
personal defense which may be set up by parties other than the minor;
but it is a real defense available to the minor.
b) A minor may be held bound by his signature in an instrument where he is
guilty of actual fraud committed by specifically stating that he is of age
when, in fact he is not.
CORPORATION
Effects of indorsement by a corporation
As regards corporation, Section 22 applies to cases where the corporation
has committed ultra vires acts or acts beyond its power.
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
fulfillment of which they were executed.
One who deals with officers or agents of a corporation is bound to know, at
his peril, their powers and extent of their authority.
D. FORGERY
Forms of forgery
a) fraud in factum
b) duress amounting to fraud
c) fraudulent impersonation
if endorsers signature is forged, loss will be borne by the forger and parties
subsequent thereto
drawee bank is not conclusively presumed to know the signature of the
indorser. The responsibility falls on the bank which last guaranteed the
indorsement and not the drawee bank.
Where the payees signature is forged, payments made by the drawee bank
to collecting bank is ineffective. No debtor/creditor relationship is created.
An agency to collect is created between the person depositing and the
collecting bank. Drawee bank may recover from collecting bank who may
in turn recover from the person depositing.
Cases on Forgery
ii.
2)
ILUSORIO vs CA (2002)
True, it is a rule that when a signature is forged or made without the
authority of the person whose signature it purports to be, the check is
wholly inoperative.
However, the rule does provide for an exception, namely: unless the
party against whom it is sought to enforce such right is precluded
from setting up the forgery or want of authority. In the instant
case, it is the exception that applies. Petitioner is precluded from
setting up the forgery, assuming there is forgery, due to his own
negligence in entrusting to his secretary his credit cards and
checkbook including the verification of his statements of account.
plainly states that no right to enforce the payment of a check can arise
out of a forged signature. Since the drawer, Samsung Construction,
is not precluded by negligence from setting up the forgery, the
general rule should apply.
a. Indorsement:
When it is the signature of the indorser that is forged, the
drawee and drawer CAN recover vs holder
1) The drawee can recover the amount paid by him in
cases where only an indorsement has been forged .
This is because drawee makes no warranty as to the
genuineness of any indorsement.
2) Generally, the drawee may only recover from the
holder. Should he fail to do so(for instance due to
insolvency) he cannot recoup his loss by charging it to
the drawers account
3) Although a depositor/drawer owes a duty to his drawee
bank to examine his cancelled checks, he has no
similar duty as to forged indorsements.
4) The drawer, as soon as he comes to know of the a
forged indorsement should promptly notify the drawee
bank
REPUBLIC vs EBRADA
65 SCRA 680 (1975)
Issue: The liability of endorser is conditioned on the validity
of the bill of exchange or promissory note. The endorsers obligation
being accessory is valid only if the principal obligation is valid.
Where an instrument with maker or drawer signature is forged and he
refuses to pay, may the holder go after the indorser?
Held: Yes, the indorser is liable. The forgery did not nullify
the instrument. The person whose signature was forged is of course
not liable. But the instrument itself is valid, and hence, the accessory
obligation of indorsement (which is similar to a guaranty) is valid.
Drawee can recover. It is not supposed to be the duty of the
drawee to ascertain whether the signatures of the payee or indorsers
are genuine or not.
iii.
3)
4)
5)
6)
BPI v CA (1992)
Section 23 of the NIL has 2 parts. The first part states the
general rule that a forged signature is wholly inoperative and
payment made through or under such signature is ineffectual. The
second part admits of exception. In this jurisdiction, the negligence of
the party invoking the forgery is an exception to the general rule.
Both drawee and collecting bank were negligent in the
selection and supervision of their employees resulting in the
encashment of the checks by the impostor. Both banks were not able
to overcome the presumption of negligence in the selection and
supervision of their employees
Considering the comparative negligence of the parties, the demands
of substantive justice are satisfied by allocating the loss and the costs
on a 60-40 ratio.
PCIB v. CA (2001)
A bank which cashes a check drawn upon another bank, without
requiring proof as to the identity of persons presenting it, or making
inquiries with regard to them, cannot hold the proceeds against the
drawee when the proceeds of the checks were afterwards diverted to
the hands of a third party. In such cases the drawee bank has a right
to believe that the cashing bank (or the collecting bank) had, by the
usual proper investigation, satisfied itself of the authenticity of the
negotiation of the checks.
Thus, one who encashed a check which had been forged or diverted
and in turn received payment thereon from the drawee, is guilty of
negligence which proximately contributed to the success of the fraud
practiced on the drawee bank.
V. CONSIDERATION
ABSENCE or failure of consideration is a matter of defense as against any
person not a HDC.
Consideration
an inducement to a contract, that is, the cause, price or impelling influence
which induces a contracting party to enter into the contract.
In actions based upon a negotiable instrument, it is unnecessary to aver or
prove consideration, for consideration is imported and presumed from the
fact that it is a negotiable instrument. The presumption exists whether the
words "value received" appear on the instrument or not (Ong v People,
2000)
Presumption of Consideration
Every negotiable instrument is deemed prima facie to have been issued for a
valuable consideration; and every person whose signature appears thereon to
have become a party thereto for value. (Sec. 24, NIL)
The presumption is only prima facie. It may, therefore, be rebutted or
disproved by evidence to the contrary.
Example:
M issued in favor of P a promissory note which recites:
Thirty days after date, I promise to pay P or order the amount of P1,
000.00. (Sgd.) M.
On the back of the note the following indorsement appears:
Pay to A. (Sgd.) P.
Although the promissory note does not mention the consideration, the law
presumes that m must have received a consideration for the note and that the
same is lawful. If M claims otherwise, then, he has the burden to rebut the
presumption.
Similarly, it is presumed that P, as an indorser received some valuable
consideration from A. A need not prove that he paid for the note. If P claims
otherwise, he must prove his allegation.
TRAVEL-ON, INC. v. CA
Travel-On was entitled to the benefit of the statutory
presumption that it was a HDC, that the checks were supported by
valuable consideration. The only evidence private respondent offered
was his own testimony that he had issued the checks to Travel-On as
payee to "accommodate" its General Manager; this claim was in fact
a claim that the checks were merely simulated, that private
respondent did not intend to bind himself thereon. Only evidence of
the clearest and most convincing kind will suffice for that purpose.
CRISOLOGO-JOSE v. CA.
Section 29 of the NIL does not apply to corporations which
are accommodation parties because the issue or indorsement of
negotiable paper by a corporation without consideration is ultra vires.
Hence, one who has taken the instrument with knowledge of the
accommodation cannot recover against a corporation accommodation party EXCEPT if the officer or agent of the corp.
was specifically authorized to execute or indorse the paper for the
accommodation of a third person.
Corporate officers, such as the president and vice-president, have no
power to execute for mere accommodation a NI of the corporation for
their individual debts or transactions in which the corporation has no
legitimate concern. It is the signatories thereof that shall be
personally liable therefor.
VII. NEGOTIATION
There is no negotiation if the transfer does not make the transferee the holder of
the instrument.
Thus, if M makes a note payable to P or order and P delivers it without
indorsement to A, negotiation is not effected because A, by such transfer, does
not become the holder of the note.
Methods of Negotiation
The methods by which an instrument is negotiated depends upon whether
the instrument is payable to order or to bearer.
1) Instruments payable to order Where the instrument is payable to order,
there are two steps required for its negotiation; first, an indorsement by the
payee or present holder, and secondly, its delivery to the next holder.
Classes of Holders
In an ascending order of rights, the classes are:
a) Holder simply under Section 51;
b) Holder for Value under Section 26; and
c) Holder in due course under Section 52 and 57.
3.
4.
may enforce payment of instrument for full amount, against all parties
liable (Sec.57, NIL)
If in the hand of any holder other than a Holder in Due Course, vulnerable
to same defenses as if non-negotiable.
5.
a.
b.
GOOD FAITH
a. Holder must have taken the instrument in good faith and that at the time
it was negotiated to him he had no notice of any infirmity in the
instrument or defect in the title of the person negotiating it.
b. NOT a Holder in GOOD FAITH
i. Holder acted in bad faith
ii. Holder had NOTICE OF DEFECT
1) ACTUAL KNOWLEDGE
SEC 56. WHAT CONSTITUTES NOTICE OF
DEFECTTo constitute notice of an infirmity in the
instrument or defect in the title of the person negotiating
the same, the person to whom it is negotiated must have
had actual knowledge of the infirmity or defect, or
knowledge of such facts that his action in taking the
instrument amounted to bad faith.
It is therefore sufficient that the buyer of a note had notice
or knowledge that the note was in some way tainted with
fraud. It is not necessary that he should know the
particulars of the fraud.
2) SUSPICIOUS CIRCUMSTANCES
a. BAD FAITH - does not require actual knowledge of the
exact fraud that was practiced; knowledge that there was
something wrong about the assignors acquisition of title is
sufficient.
b. The burden is upon the defendant to show that
notwithstanding the SUSPICIOUS CIRCUMSTANCES, it
acquired the check in actual good faith. (De Ocampo &
Co. v. Gatchalian)
o
Purchase of an instrument at a DISCOUNT does not, of
itself, constitute bad faith. However, if the instrument is
pruchased at a heavy discount, this fact together with other
facts, may be taken into account in deciding the issue of
purchase in good faith. (Ham v. Meritt)
YANG v. CA (2003)
Where Mr. A obtained by fraud from Mr. B crossed checks
payable to Mr. C, which Mr. C innocently receives from Mr. A for
value, Mr. C is still a holder in good faith despite the fact that the
checks were crossed. The crossing of a check does not impair the
negotiability of an instrument nor necessarily preclude its holder
from being a holder in due course. The crossing of a check only
means that it could only be deposited and may not be converted into
cash. Thus, such should put the holder on inquiry and upon him
devolves the duty to ascertain the holders title to the check or nature
of his possession.
The effects are that:
1. The check may not be encashed but only deposited in the bank.
2. The check may be negotiated only once to one who has an
account with a bank.
3. The act of crossing serves as a warning to the holder that the check
was issued for a definite purpose so that he must inquire if he has
received the check pursuant to that purpose. Otherwise, he would not
be a holder in due course.
Where the holder Mr. C, as in this case, did not have knowledge of
Mr. As fraudulent actions on Mr. B, and the fact that he was the
payee in said check, he was legally warranted to deposit the
instrument in his account with the drawee bank. Mr. C was a holder
in good faith.
A holder in due course holds the instrument free from any defect of title of
prior parties, and free from defenses available to prior parties among
themselves, and may enforce payment of the instrument for the full amount
thereof against all parties liable thereon. (Sec. 57, NIL)
rights of such former holder in respect of all parties prior to the latter. (Sec. 58,
NIL)
KINDS OF DEFENSES
1. real defense they are those available against ALL parties, both immediate
or remote, including holders in due course ; They are those which attach to
the instrument itself on the principle that the right sought to be enforced
never existed and generally, disclose an absence of one of the essential
elements of a contract.
2. personal defense grows out of the agreement or conduct of a particular
person in regard to the instrument which renders it inequitable FOR HIM,
though holding the legal title, to enforce it against the party sought to be
made liable; not available against a HDC can be raised only against
holders not on due course. Here, the true contract appears , but for some
reason , the defendant is excused from the obligation to perform.
Real Defenses
Personal Defense
5. intoxication
6. Mistake
7. Insanity where the insane person has a 7. insanity where there is no notice of
insanity
guardian appointed by the court
8. Ultra vires acts of a corporation where 8. ultra vires acts of corporations
its charter or by statue, it is prohibited from
issuing commercial paper
9. Want of authority of agent
13. Prescription
14. Discharge at or after maturity
15. Other infirmities appearing on the face
of the instrument
REAL DEFENSES
1. Fraudulent alteration by holder (Sec. 124, 1st sentence; Sec. 125)
2. Want of delivery of incomplete instrument (Sec. 15)
The fact that an incomplete instrument, completed without authority, had
not been delivered, is a defense even against a holder in due course.
delivery is not conclusively presumed where the instrument is
incomplete
defense of the maker is to prove non-delivery of the incomplete
instrument.
3. Duress amounting to forgery
As where one takes the hands of another and forces him to sign his name
(Espy v. Bank, 18 Wall. 604; First Nat. Bank v. northwestern Bank, 28
N.E. 729);
4. Fraud in factum or in esse contractus
5. Minority
Incapacity is a REAL defense but available only to the incapacitated
party (ex. minor or corporation); the indorsement or assignment of the
instrument by a corp. or by an infant passes the property therein,
notwithstanding that from want of capacity, the corp. or infant may incur
no liability thereon. (Sec.22, NIL)
6. Marriage in case of a wife
7. Insanity where the insane person has a guardian appointed by the court
8. Ultra vires acts of a corporation where its charter or by statue, it is
prohibited from issuing commercial paper
9. Want of authority of agent, apparent and real
10. Execution of instrument between public enemies
11. Illegality of contract made by statue or declared by law (See Art. 1409
NCC); except where the maker or drawer is himself a party to the illegality;
thus a note for gambling debt (an illegal consideration) is a mere personal
defense (see Sec. 55).
12. Forgery
13. Prescription (see Arts. 1140-1142, 1144-1147, Civil Code)
14. Other infirmities appearing on the face of the instrument (Sec. 52);
15. Discharge at or after maturity (Sec. 88, 118, 121, 122).
PERSONAL DEFENSES
1. Innocent alteration or spoliation (see Sec. 124 [last sentence], 125).
Spoliation is an alteration made by a stranger to an instrument. If the
original meaning can be ascertained, the holder in due course may recover
according to its original tenor
2. Want of delivery of complete instrument (Sec. 16)
3. Acquisition of the instrument (not signature by force, duress or fear
4. Simple fraud in inducement (Sec. 55)
5. Intoxication
6. Mistake
7. Insanity where there is no notice of insanity
8. Ultra vires acts of corporations
9. Want of authority of the agent where he has apparent authority
10. Acquisition of the instrument for an illegal consideration
11. Illegality of contract where form or consideration is illegal
12. Filling up the blanks contrary to authority given or not within reasonable
time (Sec. 28)
This is a personal defense only because provision states that if any
instrument so completed is negotiated to a holder in due course, it is
valid and effectual for all purposes
13. Usury because the contract of loan itself is not void but only the agreed
interest (see Sec. 7, Usury Law; Art. 1413, Civil code
14. Discharge by payment or renunciation or release before maturity (Sec. 50,
121, 122)
15. Absence or failure of consideration
Absence or failure of consideration may be set up against a holder not a
holder in due course as a personal defense
the defense of want of consideration is ineffective against a holder in due
course
16. Insertion of wrong date where payable at a fixed period after date and issued
undated; or at a fixed period after sight and acceptance is undated (Sec. 13);
17. Set off between immediate parties (see Sec. 58)
18. Negotiation under circumstances amounting to fraud
19. Discharge of party secondarily liable by discharging prior party (Sec. 20 [c])
20. Negotiation in breach of faith
21. Acquisition of the instrument by unlawful means
3. Fraud
REAL DEFENSE
o fraud in execution / fraud in factum: did not know that paper was a
Negotiable Instrument when it was signed
o not liable to ANY holder
PERSONAL DEFENSE
o Fraud in inducement: knows it is Negotiable Instrument but deceived
as to value/terms
Available as a defense against non-HDC
o Fraud in factum accompanied by NEGLIGENCE of maker or signer
Where the signor does not know the nature of the instrument he
signs, but where, by the exercise of ordinary care, he could have
discovered it.
4. Duress
In general, PERSONAL defense
REAL if duress so serious as to give rise to a real defense for lack of
contractual intent.
There may be cases where the duress employed is so serious that it will
give rise to a real defense because of the lack of contractual intent.
Although the signer may know what he is signing, there may be wanting
the intent or willingness to be bound. Then it becomes a real defense
5. Illegality of contract where form or consideration is illegal
In general, a PERSONAL defense even if Art. 1409 of the New Civil
Code provides that a contract with an illegal cause is void.
REAL when the law expressly provides for illegality as a real defense
(Statutory declaration of illegality)
A. MAKER
Liability of MAKER
The maker of a negotiable instrument, by making it, engages that he will pay
it according to its tenor, and admits the existence of the payee and his then
capacity to indorse. (Sec. 60, NIL)
The maker promises to pay it according to its tenor
Admits existence of payee and his then capacity to indorse
a. Therefore, PRECLUDED from setting up the following defenses:
i. the payee is a fictitious person
ii. the payee was insane, a minor, or a corporation acting ultra vires
may be compelled to pay it. But the drawer may insert in the instrument an
express stipulation negativing or limiting his own liability to the holder. (Sec.
61, NIL)
C. ACCEPTOR
Liability of Acceptor
The acceptor, by accepting the instrument, engages that he will pay it
according to the tenor of his acceptance and admits:
(a) The existence of the drawer, the genuineness of his signature, and his
capacity and authority to draw the instrument; and
(b) The existence of the payee and his then capacity to indorse. (Sec. 62, NIL)
Drawee is not liable unless he accepts the bill and in doing so, he engages to
pay the bill according to the tenor of his acceptance, and admits the
following:
iii. existence of drawer
iv. genuineness of his signature
v. his capacity and authority to draw the instrument
vi. existence of payee and his then capacity to endorse
b. Meaning of "according to the tenor of his acceptance"
i. Majority and prevailing view: Where alteration consists in raising the
amount payable, acceptor liable to HDC only as to its original
amount; if the alteration of payee's name, paying banks cannot charge
drawer's account with the amount of the check because its duty is to
pay only according to the order of the drawer.
ii. Common law rule: Acceptor of altered check not liable to innocent
holder except for the original amount
D. INDORSER
When a Person Deemed Indorser
A person placing his signature upon an instrument otherwise than as maker,
drawer, or acceptor, is deemed to be indorser unless he clearly indicates by
appropriate words his intention to be bound in some other capacity. (Sec. 63,
NIL)
Liability of Irregular Indorser
Where a person, not otherwise a party to an instrument, places thereon his
signature in blank before delivery, he is liable as indorser, in accordance with
the following rules:
E. WARRANTIES
Warranty where negotiation by delivery and so forth
Every person negotiating an instrument by delivery or by a qualified
indorsement warrants:
(a) That the instrument is genuine and in all respects what it purports to be;
(b) That he has a good title to it;
(c) That all prior parties had capacity to contract;
(d) That he has no knowledge of any fact which would impair the validity of the
instrument or render it valueless.
But when the negotiation is by delivery only, the warranty extends in favor
of no holder other than the immediate transferee.
The provisions of subdivision (c) of this section do not apply to a person
negotiating public or corporation securities other than bills and notes. (Sec. 65,
NIL)
Both of the qualified indorser and one negotiating by delivery do not assume
to pay the instrument in the event of dishonor unless the dishonor is based
on any of the four implied warranties enumerated in Section 65. They are in
fact merely assigning a credit.
in case of negotiation by delivery only, warranty only extends in favor of
immediate transferee
Example 1:
M makes a promissory note payable to bearer and delivers the same to P
Warranties of the maker.
The maker, by making the note as such, warrants the existence of the payee
and his then capacity to indorse.
Defenses precluded - The maker is consequently precluded from asserting as
a defense that the payee is non-existent and is incapable.
Example 2:
M issues a promissory note to P for 1,000.00 payable on demand. P indorses
the note to A.
Upon being sued by A, M cannot say that the agreement between him and P
was to pay only P700.00. Neither can he allege that P is non-existent or
fictitious person. He is also precluded from setting up such defenses as
minority, insanity or ultra vires act of a corporation.
Warranties of the acceptor
The acceptor, by signing the bill as such, WARRANTS:
1. The existence of the payee and his then capacity to indorse. In addition,
2. He also admits the existence of the drawer, the genuineness of his signature,
and his capacity and authority to draw the bill.
Defenses precluded - The acceptor is consequently precluded from
asserting as a defense that:
a. the drawer is fictitious or non-existent
b. the drawers signature is a forgery
c. he has no funds in his hands belonging to the drawer with which to pay
the bill
d. the drawer has overdrawn his account
e. the drawer has no capacity to contract or has no authority to draw the
bill
MATTERS NOT ADMITTED The acceptor does not admit the:
a. Genuineness of the indorsers signature because it is only the signature of
the drawer that he warrants
b. He cannot be charged with knowledge of the want of genuineness of any
other part of the instrument or of the title of the holder.
Warranties of irregular indorser
Section 64 provides only for the parties to whom an irregular indorser is
liable.
His warranties are the same as those of a general indorser under Section 66
in as much as his indorsement is in blank which, in itself, is an indorsement
without qualification.
Warranties of a qualified indorser and one negotiating by delivery
It consists of:
a. a personal demand for payment at a proper place
b. the bill or note must be ready to be exhibited if required and surrendered
upon payment.
A. NECESSITY OF PRESENTMENT FOR PAYMENT
Where necessary
Presentment for payment is necessary in order to charge the drawer and
endorsers. (Sec. 70, NIL). Without presentment, the persons secondarily liable
are discharged.
For Promissory Notes: it is necessary that: Presentment for payment must
be made to the person primarily liable (Sec. 71, NIL);
- If the note is dishonored by nonpayment, notice of dishonor by
nonpayment must be given to the person secondarily liable (Sec. 80,
NIL), unless excused
(b) When the day of maturity falls upon a Sunday or a holiday, the
instrument is payable on the next succeeding business day (Sec. 85,
NIL).
(c) When the day of maturity is on a Saturday, presentment for payment
shall be made on the next succeeding business day; except that demand
instrument may, at the option of the holder, be presented for payment
before 12:00 oclock noon on Saturday when that entire day is not a
holiday (Sec. 85, NIL).
(d) Where the instrument is payable at a fixed period after date, after sight,
or after the happening of a specified event, the time of payment is
determined by excluding the day from which the time is to begin to run,
and by including the date of payment. (Sec. 86, NIL).
Illustration:
18 June 2001
10 days after date Pay A or order P500.
(Sgd.) B
Present this on 28 June 2001 for payment because that is its due
date
GENERAL RULE: Presentment for payment must be made on due date
of instrument
EXCEPTION: If the due date falls on a Saturday, present instrument on
Monday next
REASON: Obligor is entitled to the full day to make payment. But
since Saturday is half day work and the banks would be closed in the
afternoon, and the following day is a Sunday, he should have until
Monday to pay. The law wants to give the person primarily liable one
whole day to look for money.
EXCEPTION TO EXCEPTION: If the instrument is payable on
demand, the instrument can be presented on a Saturday. The reason is
that the holder could have presented it on any day.
2. Instrument Payable on Demand within a reasonable time after its issue
Manner of Presentment
The instrument must be exhibited; when paid, must be delivered up to the
party paying it. (Sec. 74, NIL)
(a) Either to the post office nearest to his place of residence or to the post
office where he is accustomed to receive his letters; or
(b) If he lives in one place, and has his place or business in another, notice
may be sent to either place; or
(c) If he is sojourning in another place, notice may be sent to the place
where he is so sojourning.
But where the notice is actually received by the party within the time
specified by law, it will be sufficient, though not sent in accordance with
the requirement of this section. (Section 108, NIL).
By Whom:
Hence:
1. For Promissory Notes: it is necessary that: Presentment for
payment must be made to the person primarily liable (Section 71);
If the note is dishonored by nonpayment, notice of dishonor by
nonpayment must be given to the person secondarily liable (Sec.
80), unless excused
2.
(2) To any person found at the place where the presentment is made.
where principal debtor is dead and no place of payment is specified to
his personal representative, IF any AND IF he can be found with the
exercise of reasonable diligence (Sec. 76, NIL)
where persons primarily liable are partners and no place of payment is
specified, presentment for - to any one of them, even though there has
been a dissolution of the firm. (Sec. 77, NIL)
joint debtors and no place of payment is specified - to them all (Sec. 78,
NIL)
If payable at the special place, and the person liable is willing to pay
there at maturity, such willingness and ability is equivalent to tender of
payment.
C. DISPENSATION WITH PRESENTMENT FOR PAYMENT
Presentment not required to charge the drawer:
a. He has no right to expect
b. He has no right to require that the drawee or acceptor will pay (Sec 79, NIL)
Presentment not required to charge the indorser where:
a. The instrument was made or accepted for his accommodation
b. He has no reason to expect that the instrument will be paid if presented (Sec.
80, NIL)
Only the drawer or indorser are not discharged. All other parties
secondarily liable are discharged.
When delay in making presentment is excused
Delay in making presentment for payment is excused when the delay is
caused by circumstances beyond the control of the holder and not imputable
to his default, misconduct, or negligence.
When the cause of delay ceases to operate, presentment must be made with
reasonable diligence. (Sec. 81, NIL)
When presentment for payment is excused
Presentment for payment is excused:
1. Where, after the exercise of reasonable diligence, presentment, as required
by this Act, cannot be made;
2. Where the drawee is a fictitious person;
3. By waiver of presentment, express or implied. (Sect. 82, NIL)
What is excused is the failure to make presentment. There is no need to
make any presentment versus under section 81 (delay in presentment)
presentment for payment is still required after the cause of delay has ceased.
D. DISHONOR BY NON-PAYMENT
The instrument is dishonored by non-payment when:
1. It is duly presented for payment and payment is refused or cannot be
obtained; or
2. Presentment is excused and the instrument is overdue and unpaid. (Sec. 83,
NIL)
Liability of person secondarily liable, when instrument dishonored
Subject to the provisions of this Act, when the instrument is dishonored by
non-payment, an immediate right of recourse to all parties secondarily liable
thereon accrues to the holder.
(Sec. 84)
EFFECTS OF DISHONOR BY NON-PAYMENT: An immediate right
of recourse to all parties secondarily liable accrues to the holder (Sec.
84)
Parties cease to be secondarily liable and become principal debtors.
Liability becomes the same as that of the original obligors.
A. PARTIES TO BE NOTIFIED
To whom notice of dishonor MUST be given (Sec. 89, NIL)
Except as herein otherwise provided, when a negotiable instrument has been
dishonored by non-acceptance or non-payment, notice of dishonor must be given
to:
1. The drawer and to each indorser
2. Any drawer or indorser to whom such notice is not given is discharged.
As a general rule, a bank has a right of set off of the deposits in its
hands for the payment of any indebtedness to it on the part of a
depositor. However, prior to the mailing of notice of dishonor &
without awaiting any action by Gullas, the bank made use of the
money standing in his account to make good for the treasury warrant.
Gullas was merely an indorser & notice should actually have been
given to him in order that he might protect his interests.
To whom notice MAY BE given?
1. To his principal, in case of an instrument dishonored in the hands of an
agent (Sec. 94, NIL)
2. To the party himself or his agent in that behalf (Sec. 97, NIL)
When notice is given to an agent, he must be duly authorized to receive
notice of dishonor, otherwise, the notice is not valid.
3. Where party is dead and death known to the party giving notice (1) MUST
be given to a personal representative, if there be one, and if with reasonable
diligence, he can be found; (2) no personal representative MAY be sent to
the last residence or last place of business of the deceased. (Sec. 98, NIL)
4. Partners to any one partner, even though there has been a dissolution.
(Sec. 99, NIL)
a. Persons jointly liable. to each of them unless one of them has authority
to receive such notice for the others. (Sec. 100, NIL)
b. Bankrupt. where a party has been adjudged a bankrupt or insolvent, or
has made an assignment for the benefit of creditors, notice may be given
either to the party himself or to his trustee or assignee (Sec. 101, NIL)
By Whom Given
o (1) By or on behalf of the holder or (2) any party to the instrument who
may be compelled to pay it to the holder, and who, upon taking it up,
would have a right to reimbursement from the party to whom the notice
is given (Sec. 90, NIL)
o Notice of dishonor may be given by an agent either in his own name or
in the name of any party entitled to give notice, whether that party be his
principal or not (Sec. 91, NIL)
o Where instrument has been dishonored in hands of agent, he may either
himself give notice to the parties liable thereon, or he may give notice to
his principal (as if agent were holder) (Sec. 94, NIL)
By Whom Given
Notice of Dishonor may be given:
1. By or on behalf of the holder
2. By or on behalf of any party who:
a. Is a party to the instrument and might be compelled to pay the
instrument.
b. To a holder who having taken it up would have a right of
reimbursement from the party to whom notice is given. (Sec. 90,
NIL)
Notice of dishonor may be given by any agent either:
a. in his own name; or
b. in the name of any party entitled to give notice, whether that party be his
principal or not. (Sec. 91, NIL)
Where instrument has been dishonored in hands of agent, he may either
himself give notice to:
1. the parties liable thereon; or
2. to his principal (within the same time as if agent was an independent
holder) (Sec. 94, NIL)
2. where notice given by/on behalf of a party entitled to give notice: insures for
benefit of
a. holder , and
b. all parties subsequent to party to whom notice given
General rule: Any drawer or indorser to whom such notice is not given is
discharged.
Exceptions:
a. Waiver (Sec. 109, NIL)
b. Notice is dispensed (Sec. 112, NIL)
c. Not necessary to Drawer (Sec. 114, NIL)
d. Not necessary to Indorser (Sec. 115, NIL)
If notice is delayed, delay may be excused (Sec. 113, NIL)
D. FORM OF NOTICE
Form of notice (Sec. 96, NIL)
The notice may be:
1. in writing; or
2. merely oral
Contents: may be given in any terms which sufficiently
1. identify the instrument, and
2. indicate that it has been dishonored by non-acceptance or non-payment.
It may in all cases be given:
1. by delivering it personally; or
2. through the mails.
The ff. notice still sufficient: (Sec. 95, NIL)
(1) a written notice, not signed
(2) insufficient written notice, supplemented and validated by verbal
communication
(3) instrument suffering from misdescription UNLESS the party to whom the
notice is given is in fact misled thereby.
TIME WITHIN WHICH NOTICE GIVEN
1. Notice may not be given before the maturity of the instrument. Notice
may be given on the date of maturity, provided that instrument has been
presented for payment and it has been dishonored.
2. Where Parties Reside in Same Place: where the person given and the
person to receive notice reside in the same place, notice must be given
within the following periods:
(a) If given at the place of businss of the person to receive notice it must
be given before the close of business hours on the day following:
(b) If given by mail it must be deposited in the post office in time to
reach him in usual course on the day following. (Sec. 103, NIL).
Same place refers to the corporate limits of a town or city where the
presentment is made or where the holder resides.
3. Where Parties Reside in Different Place: Where the person giving and
the person to receive notice reside in different place, the notice must be
given within the following periods:
(a) If sent by mail, it must be deposited in the post office in time to go
by mail the day following the day of the dishonor, or if there be no
mail at a convenient hour or that day, by the next mail thereafter;
(b) If given otherwise than through post office, then within the time that
notice would have been received in due course of mail, if it had been
deposited in post office within the time specified. (Sec. 104, NIL).
NOTE: these provisions are similar to Art. 54 of the Code of
Commerce which provides: contracts entered into through
correspondence shall be perfected from the time an answer is made
accepting the propositions by which the latter may be modified.
4. Where a party receives notice of dishonor, he has, after the receipt of
such notice, the same time for giving notice to antecedent parties that the
holder has after the dishonor. (sec. 107, NIL).
E. WAIVER
When Waiver of Dishonor May Be Made (Sec. 109, NIL)
1. Before the time of giving notice has arrived, such as express waiver
in the body of the instrument or added to the signature of the party; or
2. After omission to give due notice
> Waiver of notice may be expressed or implied
- Waiver may be implied from acts, declarations, or silence
When the cause of delay ceases to operate, notice must be given with
reasonable diligence.
When political disturbances interrupt and obstruct the ordinary
negotiations of trade, they constitute a sufficient excuse for want
of presentment or notice, upon the same principle that controls in cases
of military operations or interdictions of commerce, or prevalence of a
malignant, contagious, infectious disease.
a.
b.
c.
d.
by whom made
at or after maturity
to the holder thereof
in good faith and without notice that his title is defective
State Investment v. CA
217 SCRA 32 (1993)
The fact that post dated checks were issued merely as security is not a
ground for the discharge of the checks as against a holder in due
course.
The intentional cancellation contemplated under Sec. 119 on NIL for
the discharge of an instrument is the cancellation effected by
destroying the instrument either by tearing it up, burning it, or writing
the work cancelled on the instrument, and certainly requires the
element in the holder in intentionally cancelling it. Cancellation
cannot be presumed by failure to recover the instrument.
The discharge of the instrument would necessarily carry with it the
discharge of the persons primarily liable thereon.
5. When the principal debtor becomes holder of instrument at or after maturity in
his own right (See Ang vs. Associated Bank, et. Al., G.R. No. 146511,
September 5, 2007)
6. renunciation of holder: (Sec. 122, NIL)
holder may expressly renounce his rights vs. any party to the instrument,
before or after its maturity
absolute and unconditional renunciation of his rights against PRINCIPAL
DEBTOR made at or after maturity discharges the instrument
renunciation does not affect rights of HDC w/o notice.
Renunciation must be in writing unless instrument delivered up to person
primarily liable thereon
7. material alteration review Sec. 125, NIL: what constitutes material alteration
(Sec. 124, NIL: material alteration w/o assent of all parties liable avoids
instrument except as against party to alteration and subsequent indorsers)
Payment by Principal Debtor
In order to discharge the instrument, the payment must be
The party paying is remitted to his former rights against parties prior to
him; if he was formerly a holder in due course, even if at the time of
payment he already had notice of the defects of the title, he can enforce
his rights against any of the prior parties free from defenses.
D. RENUNCIATION BY HOLDER
As a Rule:
The holder may expressly renounce his rights against any party to the
instrument before, at, or after its maturity. (Sec. 122, NIL)
An absolute and unconditional renunciation of his rights against the
principal debtor made at or after the maturity of the instrument
discharges the instrument.
However:
A renunciation does not affect the rights of a holder in due course
without notice.
A renunciation must be in writing unless the instrument is delivered up
to the person primarily liable thereon. [Section 122, Negotiable
Instruments Law]
Renunciation by a holder discharges an instrument when:
a.
b.
c.
d.
Section 122, NIL applies only to renunciation by the unilateral act of the
holder without consideration and in cases where the instrument is not
delivered up to the person intended to be released
Renunciationact of surrendering a right or claim without recompense but
it can be applied with equal propriety to the relinquishing of a
demand upon an agreement supported by a consideration
if renounced in favor of a party secondarily liable, only he is exonerated
from liability and all parties subsequent to him
discharge by novation is allowed
The date;
The sum payable, either for principal or interest;
The time or place of payment:
The number or the relations of the parties;
The medium or currency in which payment is to be made;
Or which adds a place of payment where no place of payment is specified,
or any other change or addition which alters the effect of the instrument in
any respect, is a material alteration. (See also Metropolitan Bank and
Trust Company vs. Cabilzo, G.r. No. 154469, December 6, 2006)
Does the alteration on the serial number of the check constitute material
alteration?
A serial number is an item which is not an essential requisite for
negotiability under Sec. 1 of NIL, and which does not affect the right of the
parties, hence its alteration is not material. (PNB v. CA, 256 SCRA 491,
1999 BEQ)
No. The alteration on the serial numbers do not constitute material
alteration within the contemplation of the Negotiable instruments Law. An
alteration is said to be material if it alters the effect of the instrument. It
means an authorized change in an instrument that purports to modify in any
respect the obligation of a party or an unauthorized addition of words or
numbers or other change to an incomplete instrument relating to the
XIV. ACCEPTANCE
A. DEFINITION
shown and who, on the faith thereof, receives the bill for value.
(Section 134, NIL)
2) Refuse to accept a qualified acceptance and may treat it as dishonored
(Sec. 142, NIL)
Where bill is duly presented and is not accepted within prescribed time,
the person presenting it must treat the bill as dishonored by
nonacceptance or he loses right of recourse against the drawer and
indorsers. (Sec. 150, NIL)
If there is not demand for the return of the bill and the drawee keeps it
until after the expiration of said period without expressly accepting or
refusing it; two views:
a. Constitutes constructive notice
b. Constitutes dishonor because Sec.137, NIL uses the word
"refuses"
- Acceptance, if given, will retroact to date of presentation.
3. General Acceptance
A general acceptance assents without qualification to the order of the
drawer.
WHAT MAY
CIRCUMSTANCES?
THE
HOLDER
DO
UNDER
THE
against the defendant bank but as against the party responsible for changing
the name of the payee. Its failure to call the attention of defendant bank as to
such alteration until the lapse of 27 days would, in the light of the above
Central Bank Circular, negate whatever right it may have had against
defendant bank (Hong Kong and Shanghai Banking Corp. vs. Peoples
Republic Bank and Trust co., 35 SCRA 140)
The 24-hour clearing house rule is a valid rule applicable to commercial
banks. It is true that when an endorsement is forged, the collecting bank or last
endorser, as a general rule, bears the loss. But the unqualified endorsement of
the collecting bank on the check should be read together with the 24-hour
regulation on clearing house operation. Thus, when the drawee bank fails to
return a forged or altered check to the collecting bank within the 24-hour
clearing period, the collecting bank is absolved from liability (Republic Bank
vs. CA; 196 SCRA 100).
Under the clearing house rules, the failure to return within the
prescribed time will be deemed payment or acceptance of the check.
A bill of exchange does not need to be presented for acceptance at all times,.
In order to know whether or not presentment for acceptance is necessary, you
have to look at the bill.
When presentment for acceptance is necessary:
a.
If necessary to fix the maturity of the bill
b.
If it is expressly stipulated that it shall be presented for acceptance
c.
If the bill is drawn payable elsewhere than the residence or place of
business of the drawee (Sec. 143 NIL)
So when the bill is written as Pay at sight.. the drawee must see the bill
first and he can only see the bill if it is to be presented for acceptance. Also if
the bill is written as : Pay. 30 days after sight, the bills maturity date is 30
dates after the drawee sees the bill. Hence, it must be presented for
acceptance. If the drawees place of business is in Manila and the bill is drawn
payable in Cavite, then it must be presented for acceptance.
If by the terms, the bill is to be presented for acceptance, then it must be
presented. If the bill needs a presentment for acceptance, then it must be
so presented. If it is not presented for acceptance, the drawer and the
indorsers will be discharged from liability. Therefore, the holder must
present it for acceptance or he negotiates the bill within a reasonable
time
C. DISHONOR BY NON-ACCEPTANCE
When dishonored by non-acceptance
A bill is dishonored by non-acceptance:
Promissory Note
Bill of Exchange
Unconditional promise
Involves 2 parties
Maker primarily liable
Only 1 presentment - for payment
Unconditional order
Involves 3 parties
Drawer only secondarily liable
Generally 2 presentments - for
acceptance and for payment
A bill drawn payable to drawer's own a note drawn payable to maker's own
order is complete without indorsement
order is not complete until indorsed by
him
must be presented for acceptance in there is no need of presentment
some cases
Reasonable time from last negotiation
reasonable time from issue
XVII. CHECKS
A. DEFINITION
Check defined
A check is a bill of exchange drawn on a bank payable on demand. For a
check to be negotiable, it must conform to the requirements in Sec. 1 of the
Negotiable Instruments Law.
Checks have the character of negotiability, but at the same time, they may
constitute evidence of indebtedness in the amounts stated in the faces of those
instruments (Go v. Bacaron, 472 SCRA 229, 2007 BEQ)
Except as herein otherwise provided, the provisions of this Act applicable to
a bill of exchange payable on demand apply to a check. (Sec. 185, NIL)
A check of itself does not operate as an assignment of any part of the funds
to the credit of the drawer with the bank, and the bank, is not liable to the
holder, unless and until it accepts or certifies the check.
A check is payable on demand even when not so stated on its face.
A check is supposed to be drawn against a previous deposit of funds, while
an ordinary need not be drawn against a deposit.
A check need not be presented for acceptance.
Promissory Note
CHECK
B. KINDS
Kinds of Check
1. Ordinary Check
2. Cashiers Check, - One drawn by the cashier of a bank in the name of the
bank against the bank itself payable to a third person or order.
A cashier's check is a primary obligation of the issuing bank and
accepted in advance by its mere issuance.
3. Certified check , A personal check with guaranteed funds to cover the
payment of the check.
The certification is an agreement whereby the bank against whom a
check is drawn undertakes to pay it on any future time when presented
for payment.
The Certification is equivalent to acceptance and operates as an
assignment of a part of the funds to the creditors.
Discuss the effects of certifying a check
The effects are:
b. It is equivalent to acceptance and is the operative act that makes the
bank liable.
c. It amounts to the assignment of the funds of the drawer in the hands
of the drawee.
d. If obtained by the holder, persons secondarily liable are discharged
4. Voucher Check
5. Travellers Check
6. Managers Check
A check drawn by the manager of a bank in the name of the bank against
the bank itself payable to a third person. .It is similar to a cashiers
check both as to effect and use. A cashiers check is a check of the
banks cashier on his own or another check. In effect, it is a bill of
exchange drawn by the cashier of a bank upon the bank itself, and
accepted in advance by the act of its issuance. It is really the banks
own check and may be treated as a promissory note with the bank as a
maker. The check becomes the primary obligation of the bank which
issues it and constitutes its written promise to pay upon demand. The
mere issuance of it is considered an acceptance thereof. (EQUITABLE
PCI vs. ONG 15 September 2006)
7. Crossed Check ( 2004, 2005 BEQ)
A Crossed Check under accepted banking practice, crossing a check is
done by writing two parallel lines diagonally on the left top portion of
the checks. The crossing is special where the name of the bank or a
business institution is written between the two parallel lines, which mean
that the drawee should pay only with the intervention of that company.
The crossing is special where the name of the bank or a business
institution is written between the two parallel lines, which means that the
drawee should pay only with the intervention of that company.
A check which in addition to the usual contents of an ordinary check
contains also the name of a certain banker or business entity through
whom it must be presented for payment.
State the Effects of crossing a check (1996, 2005 BEQ):
In order to preserve the credit worthiness of checks, jurisprudence has
pronounced that crossing of a check should have the following effects:
a. That the check may not be encashed; it may only be deposited with
the bank;
b. That the check may be negotiated only once to a person who has an
account with the bank; and
c. That the act of crossing the check serves as a warning to the holder
that the check has been issued for a definite purpose so that he must
inquire if he has received the check pursuant to that purpose,
otherwise, he is not a holder in due course. (Bataan Cigar v. CA 280
SCRA 643; BPI vs. CA G.R. No. 136202, January 25, 2007)
The Court has taken judicial cognizance of the practice that a check
with 2 parallel lines in the upper left hand corner means that it could
only be deposited and not converted into cash.
IRON CLAD RULE prohibits the countermanding of payment of
certified checks. (Rep. v. PNB, Dec. 1, 1961)
*Note: The holder must be a holder in due course before the stop payment
order may not be successfully invoked against him. (Mesina v. IAC, 146
SCRA 497, 505)
8. Memorandum Check.
A check in which is written the word "memorandum," "memo" and "mem"
signifying that the drawer engages to pay the bona fide holder absolutely, and
not upon a condition to pay upon presentment of maturity and if due notice of
presentment and non-payment should be given.
It is a check given by a borrower to a lender for the amount of a short loan,
with the understanding that it is not to be presented at the bank, but will be
redeemed by the maker himself when the loan falls due and which
understanding is evidenced by writing the word "memorandum," "memo" or
"mem" on the check.
9. Forged Checks (2006 BEQ)
The legal consequences when a bank honors a forged check are as follows:
When Drawers Signature is Forged: Drawee-bank by accepting the check
cannot set up the defense of forgery, because by accepting the instrument, the
drawee bank admits the genuineness of signature of drawer (BPI Family Bank
vs. Buenaventura G.R. no. 148196, September 30, 2005; Section 23, NIL)
Q. IS DRAWEE BANK LIABLE IF IT PAYS A FORGED
CHECK?
Answer: Yes. A bank is under obligation to treat the accounts of its
depositors with meticulous care, always having in mind the fiduciary
nature of their relationship. A bank is bound to know the signatures of
its customers; and if it pays a forged check, it must be considered as
making the payment out of its funds, and cannot ordinarily charge the
amount so paid to the account of the depositor whose name was forged.
(See Citibank vs. Sps. Cabamongan, G.R. No. 146918, May 2, 2006)
CRYSTAL v. CA
1976
Crystal used a check in paying the redemption price of the property
sold at an execution sale. The value of the check had never been
realized because it had either been dishonored or become stale. The
validity of the redemption is in question.
HELD: If the check had been dishonored, the redemption is void.
But if it had only become stale through no fault of the redemptioner,
then it would be unfair to deprive him of the rights he had acquired as
redemptioner, particularly if the value of the check has otherwise
been received or realized. There is a strong showing that the party
had already been paid in full.
of the drawer and shall be liable for the amount charged to the
drawers account.
Among the different types of checks issued by a drawer is the
crossed check. The Negotiable Instruments Law is silent with
respect to crossed checks, although the Code of Commerce makes
reference to such instruments. The Court has taken judicial
cognizance of the practice that a check with two parallel lines in
the upper left hand corner means that it could only be deposited
and could not be converted into cash. Thus, the effect of crossing
a check relates to the mode of payment, meaning that the drawer
had intended the check for deposit only by the rightful person,
i.e., the payee named therein. The crossing may be "special"
wherein between the two parallel lines is written the name of a
bank or a business institution, in which case the drawee should
pay only with the intervention of that bank or company, or
"general" wherein between two parallel diagonal lines are written
the words "and Co." or none at all, in which case the drawee
should not encash the same but merely accept the same for
deposit. In Bataan Cigar v. Court of Appeals, the Court
enumerated the effects of crossing a check as follows: (a) the
check may not be encashed but only deposited in the bank; (b) the
check may be negotiated only once to one who has an account
with a bank; and (c) the act of crossing the check serves as a
warning to the holder that the check has been issued for a definite
purpose so that he must inquire if he has received the check
pursuant to that purpose; otherwise, he is not a holder in due
course.
In this case, the four checks were drawn by BA-Finance and
made payable to the "Order of Miller Offset Press, Inc." The
checks were also crossed and issued "For Payees Account Only."
Clearly, the drawer intended the check for deposit only by Miller
Offset Press, Inc. in the latters bank account. Thus, when a
person other than Miller, i.e., Ching Uy Seng, a.k.a. Robert
Ching, presented and deposited the checks in his own personal
account (Ching Uy Sengs joint account with Uy Chung Guan
Seng), and the drawee bank, Bank of America, paid the value of
the checks and charged BA-Finances account therefor, the
drawee Bank of America is deemed to have violated the
instructions of the drawer, and therefore, is liable for the amount
charged to the drawers account.
account of, a person who was not the payee named in the checks.
The checks were issued to the "Order of Miller Offset Press,
Inc.," but were deposited, and paid by Associated Bank, to the
personal joint account of Ching Uy Seng (a.k.a. Robert Ching)
and Uy Chung Guan Seng. It could not have escaped Associated
Banks attention that the payee of the checks is a corporation
while the person who deposited the checks in his own account is
an individual. Verily, when the bank allowed its client to collect
on crossed checks issued in the name of another, the bank is
guilty of negligence. As ruled by The Court in JaiAlai Corporation of the Philippines v. Bank of the Philippine
Islands 160 Phil., 741, 747-748 (1975), one who accepts and
encashes a check from an individual knowing that the payee is a
corporation does so at his peril. Accordingly, we hold that
Associated Bank is liable for the amount of the four checks and
should reimburse the amount of the checks to Bank of America.
c) Yes. It is well-settled that a person who had not given value for the
money paid to him has no right to retain the money he
received. The Court, therefore, quotes with approval the ruling of
the Court of Appeals in its decision:
It appearing, however, from the evidence on record that since
Ching Uy Seng and/or Uy Chung Guan Seng received the
proceeds of the checks as they were deposited in their personal
joint account with Associated Bank, they should, therefore, be
obliged to reimburse Associated Bank for the amount it has to pay
to Bank of America, in line with the rule that no person should be
allowed to unjustly enrich himself at the expense of another.