Prof. Lipson
COMMERCIAL LAW
1. Negotiable Instruments
a. Parties
i. “drawer”
1. directs payment
2. 3-103(a)(3)
3. or “issuer” – 3-105(c)
ii. “drawee”
1. person directed to make payment
2. 3-103(a)(2)
iii. “payee”
1. person to be paid
iv. “remitter”
1. person who caused draft to be issued
2. 3-103(a)(11)
b. Negotiability Requirements (3-104(a))
i. Promise or Order Requirement
1. 3-104(a)
2. 3-103(a)(6) : defines order (instruction by drawer for drawee to pay)
a. 3-104(e) : writing is “draft” if is order
b. types of drafts:
i. 3-104(f) : check
ii. 3-104(g) : cashier’s check
iii. 3-104(h) : teller’s check
3. 3-103(a)(9) : defines promise (direct commitment to pay)
a. 3-103(a)(5) : party that makes promise is “maker”
ii. Unconditional Requirement
1. 3-104(a)
2. 3-106(a)(i) and (ii)
a. document not negotiable if states “is subject to or governed by another writing” or “that rights and obligations with respect to [the document] are stated in another writing”
3. Exceptions, 3-106(b)
a. (i) : When collateral given, references to other writings ok like w/loan and security agreements
b. (ii): non-recourse provision
iii. Money Requirement
1. 3-104(a)
2. excludes obligations to deliver commodities rather than money
iv. Fixed Amount Requirement
1. 3-104(a)
2. excludes promises to pay unspecified sums of $
3. ok to list interest
4. 3-112(b) : interest can be fixed or variable
v. Payable to Bearer or Order Requirement
1. 3-104(a)(1)
2. 3-109(a) : defined
3. must contain the terms
4. bearer types
a. “payable to bearer” (or otherwise indicates person in possession is entitled to payment)
b. no particular identifiable person
i. 3-109(a)(2) : no stated payee, just left blank
ii. 3-109(a)(3) : payable to cash
5. order
a. 3-109(b)(i) : payable to order of identified person
b. 3-109(b)(ii) : payable to identified person or order
c. 3-109(a)(2) : if just says order w/o person’s name it is bearer paper
6. Exception
a. Checks
b. 3-104(c) : even if fail this requirement, still NI
vi. Demand or Definite Time Requirement
1. 3-104(a)(2)
2. 3-108(a) : on demand definition also includes no specified time for payment
3. 3-108(b)(iii) : “definite time” includes obligation due on particular date and where holder can extend the date of payment
4. 3-108 allows for acceleration, prepayment, and extensions at option of maker
vii. No Extraneous Undertakings Requirement
1. 3-104(a)(3)
2. not negotiable if includes nonmonetary promises
3. ex : “I promise to pay $100 and deliver goods”
4. Excpetions
a. 3-104(a)(3)(i) : “undertaking to give, maintain, or protect collateral to secure payment”
b. 3-104(a)(3)(ii) : “an authorization or power to holer to confess judgment or realize on or dispose of collateral”
c. 3-104(a)(3)(iii) : permits conditions where borrower waives laws intended for benefit or protection of borrow or obligor
c. Liability on the Instrument and the Underlying Obligation
i. b/c NI is unconditional, when a party issues a NI, it incurs liability that is completely separate from its liability on any underlying obligation
ii. 3-412 : for note liability springs into existence immediately
iii. 3-414(b) : for draft liability is indirect and begins only if drawee refuses to pay as directed
iv. 3-310 : rules governing relation b/w liability for instrument and liability for obligation
1. 2 classes
a. 3-310(a) : near-cash instruments
i. all kinds of checks
ii. bank incurs liability
iii. obligation discharged when obligee takes the check
b. 3-310(b) : ordinary instruments
i. notes and uncertified checks
ii. obligation suspended when obligee takes it, only discharged when paid
2. Holders In Due Course
a. Transferring NI
i. Only need delivery and signature
ii. 3-201(a) : negotiation is any transfer of possession (even if involuntary) by a person other than the issuer that causes the transferee to become a holder
iii. 3-301(i) : has right to enforce
iv. can’t be holder w/o possession
v. 1-201(20)
1. for order paper, identified person is only one that can be holder
2. for bearer paper, any person in possession
vi. indorsement alters identity of identified person
1. 3-204(a) : any signature on instrument is indorsement unless circumstances unambiguously indicate the signature is there for another purpose
2. special indorsement identifies person to whom instrument is paid, 3-205(a)
3. blank indorsement does not indicate identified person, 3-109(c) and 3-205(b)
4. restrictive indorsement : “deposit only” or “collection only”, 3-206(c)
5. anomalous indorsement : someone who indorses is not the holder, 3-205(d)
b. Rights of Transferee
i. HDC
1. status makes a transferee immune from certain defenses that the issuer of a NI could raise against the original payee
2. Requirements for Status
a. Obtain through negotiation (sale not enough)
b. Take instrument for value
i. Appears in 3-302(a)(2)(i)
ii. Defined in 3-303(a)
iii. No gifts
iv. Can transfer for consideration and still fail value req
v. 3-303(a)(1) : If the value is the promise of the future performance, is not value until the performance has occurred
c. good faith
i. appears in 3-302(a)(2)(ii)
ii. 3-103(a)(4) : “honesty in fact” and “observance of reasonable commercial standards of fair dealing”
d. notice
i. appears in 3-302(a)(2)(iii) – (vi)
lity
ii. $100 available on first business day after the banking day on which funds are deposited
1. 12 C.F.R. §229.10(c)(1)(vii)
iii. rest of funds no later than second business day
1. 12 C.F.R. §229.12(b)
b. Noncash withdrawals from nonlocal checks
i. $100 available on first business day after the banking day on which the funds are deposited
ii. can wait until fifth business day for remaining funds
iii. 12 C.F.R. §229.12(c)
c. Cash withdrawals from local checks
i. $100 available on first day
ii. $400 available on second day
iii. any remaining on third day
iv. 12 C.F.R. §229.12(b) & (d)
d. Cash withdrawals from nonlocal checks
i. $100 available on first day
ii. $400 available on fifth day
iii. remaining on sixth day
iv. 12 C.F.R. §§229.10(c)(1)(vii), 229.12(c) & (d)
e. Exceptions
i. New accts
ii. Large deposits
iii. Bank has good reason to doubt collectibility of deposited check even before it hears from payor bank
iv. 12 C.F.R. §229.13
ii. Wrongful Dishonor
1. 4-402(b) : if bank wrongfully dishonors, customer entitled to all of “damages proximately caused by the wrongful dishonor”
a. consequential damages included
4. Check Collection Processes
a. Payor Bank’s Obligation to the Payee
i. Bank is not directly obligated to payee
ii. Drawee/bank not liable on the instrument until it accepts it