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Payment systems 2
pay2
288
Accounting
Pre-School
05/01/2011

Additional Accounting Flashcards

 


 

Cards

Term

2-104(1)

Definition

Defines merchant as one that deals in the goods having peticularized knowledge

Term

 What happens in the fraudulent selling of O's property from A to P?

Definition

UCC 2-403 says that P would obtain a voidable title and the GFP would obtain a title if they fit good faith

Term

What is good faith?

Definition

Two part test requiring honest in fact and the observance of reasonable commercial standards

Term

Anything else required to be a good faith purchaser?

Definition

Yes, has to be something of value under 1-204 which includes in return for a bind commitment to extend credit, as security, by accepting dlivery or in return for consideration

Term

Could O sue P for conversion if P is a good faith purchaser?

Definition

No

Term

 

Would the result change if the price were 60k? 

 

Definition

 

 

  1. Value would be there, but whether good faith was met would be trickier

 

 

Term

 

Any difference if P had simply promised to pay?

 

Definition

 

No, this accounts for value under 1-204

 

Term

 

What about if P had taken it as security for a loan

 

Definition

 

Yes, good faith is accounted for, purchase, and yes this accounts for something of value

 

Term

 

What if P had bought the cotton at a sheriff's execution sale on levy?

 

Definition

 

State law recognizes the validity of sheriff sales, UCC inapplicable

 

Term

A left O in possession of the cotton, and P had then paid A 100,000 for it?

Definition

GFP likely keeps when O gave A "indicia of ownership"

Term

Mowrey v. Walsh facts

Definition

Goods purchased by forger who in turn sold them. Original owner demanded them back 

Term

2-403

Definition

A person with voidable title has power to transfer a good title to GFP for value

Term

O owned cotton worth 100k. A fraudulently induced ) to sell for 100k in 10 days, falsely representing he was . A sells to P. O sues P for replevin.

Definition

Under 2-403(1)a the GFP is protected even if the transferor (O) was deceived about the identity, and when GFP did not suspect fraud. Under UCC P is ok

Term

O owned cotton and A buys with check he had no account. P buys not suspecting fraud

Definition

Under UCC A has good title and whether or not it was a cash sale would make no difference

Term

2-403(1)a

Definition

Deals with misrepresentation, GFP still protected even if transferor was deceived to the identity of the purchaser

Term

Cundy v. Lindsay

Definition

Misrepresented himself as good standing company, since there was no K between the two, no title passed, different result under 2-403(1) of course

Term

Phelps v. McQuade

Definition

Gynee falsely represented to Phelps that he was Gwynne a man of financial responsibility and bought jewlery on credit, which was in turn sold to McQuade

Term

What result in Phelps

Definition

In Phelps, the court distinguished Cundy because the misrepresentation was face to face

Term

2-403(b) and (c) are intended to 

Definition

Stamp out the cash sale exemplified by Young v. Harris

Term

What happened in Young v. Harris

Definition

Young sold cotton to McNamee who resold to Harris-Cotner on an insufficient funds check. Young sued Cortner to replevy the cotton

Term

What was the result in Young v. Harris

Definition

Interestingly, Young was allowed to get the cotton back. Ucc does away with the old cash sale doctrine exemplified in Young v. Harris

Term

2-403(1)(d) deals with delivery through what

Definition

Procured through criminal fraud

Term

What can you do if you are the seller in a criminal fraud situation?

Definition

Prosecute B for larceny or theft 

Term

What are the three elements involved in a good faith purchase?

Definition

Good faith

 

purchaser and

 

value

Term

What is good faith 

Definition

Honesty in fact and observance of reasonable commercial standards of fair dealing

Term

How is a merchant defined?

Definition

Defined as someone who deals in the good and knows the pecularities of the practice

Term

What section is purchase in?

Definition

1-201(29)

Term

How is purchase defined?

Definition

Sale lease discount or any voluntary transaction

Term

What section is value defined in?

Definition

1-204(4)

Term

What is value

Definition

4 part defintion including a commitment, security for preexisting claim, acceptance of delivery of preexisting contract or return for consideration

Term

What is something that may be important to know for the exam?

Definition

Difference between old law and UCC

Term

What about sale of a loaned book?

Definition

Have to figure whether loaners conduct arises to level of estoppel

Term

What actually is estoppel anyway?

Definition

A legal bar preventing someone from alleging or denying a fact

Term

How would estoppel apply to book loaning process?

Definition

If the loaner helped to make it look as if the book was the loanee then he is estopped from getting it from GFP

Term

What about leaving a watch with a repair person. Would estoppel have any application there?

Definition

Yes, by leaving the watch you have the indicia that B has authority to sell it

Term

What is the applicable section for entrustment cases?

Definition

2-403(2)

Term

What does it say?

Definition

Any entrusting gives the loanee rights to the good free of any interest

Term

What test is involved?

Definition

A two part test: Did A entrust goods to B, a merchant? Is a C a buyer in ordinary course of business.

Term

Where is the second part of the test found in the code?

Definition

1-201(9)

Term

What does it involve?

Definition

A person who buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker

Term

Break 1-201(9) down into elements:

Definition

Person that buys goods, in good fairth, w/o knowledge, bought in ordinary course of business, consideration

Term

If you answer yes to both questions of 2-403(2) (entrustment) what is the result?

Definition

You have statutory estoppel and cannot recover from GFP

Term

Where is entrusting defined?

Definition

2-403(3)

Term

What is entrusting anyway?

Definition

Entrusting includes any delivery and any acquiescence in retention of possession of any condition expressed between parties to the delivery

Term
Porter v. Wertz Facts
Definition

Von Maker borrowed painting from Porter to put in his home, pending his decision to buy the painting.  During that time, he sold the painting to Feigen (an art gallery) who sold it to Brenner.  Feigen and Wertz are both defendants and were interested in 2-403 (statutory estoppel).  Court held no statutory or equitable estoppel.  Trial court held statutory estoppel did not bar recovery but that equitable estoppel was a valid defense.  Appellate court held that neither statutory nor equitable estoppel bars recovery by Porter.  

Term
What is the analysis in determining whether statutory estoppel applies in  Porter v. Wertz?
Definition

The case focused on whether statutory estoppel.

 

  • Whether Feigen was a "buyer in the ordinary course of business." 
    • No, Wertz was not an art deal
    • Evidence on this issue was not persuasive
  • Whether Feigen was acting in good faith
    • Not acting in good faith but did not determine to find out that Wertz was an art dealer
  • Two questions of statutory estoppel 2-403(2)
    • There was an entrustment
    • C is likely not a buyer in the ordinary course of business 

 

Term
What is the analysis of equitable estoppel?
Definition

1. Did it appear that the entruster full right?

2. Look at it from the eyes of the third party...Does it appear that the owner of the jewelry shop has full rights?

Term
What is the difference between equitable estoppel and statutory estoppel?
Definition
Is that words such as "you can't sell this" would provide for an equitable estoppel, but not a statutory estoppel claim.
Term
For equitable estoppel the third party need to come in as ___
Definition
a GFP
Term
For statutory estoppel the third party must be a ______
Definition

buyer in the "ordinary course of business"

 

 

Term

O owned cotton worth 100k. O placed it in storage with A, who both stores the cotton and buys and sells it. A sold the cotton to P, who did not suspect A's wrongdoing, for 100k. O sues P to replevy the cotton.

 

What result?

Definition

issue 1: is a A merchant, goods were placed with A, a merchant that deals in goods of that kind so yes

 

issue 2; whether p is a buyer in the ordinary course of business: yes.

 

issue 3: Did P buy from the merchant? Yes

Term

O owned cotton worth 100k. O placed it in storage with A, who both stores the cotton and buys and sells it. A sold the cotton to P, who did not suspect A's wrongdoing, for 100k. O sues P to replevy the cotton.

 

Does it make a difference whether O knows that A buys and sells and cotton?

Definition
No. the state of mind is irrelevant. The mental state of the entruster is immaterial.
Term

O owned cotton worth 100k. O placed it in storage with A, who both stores the cotton and buys and sells it. A sold the cotton to P, who did not suspect A's wrongdoing, for 100k. O sues P to replevy the cotton.

 

What result if P had promised to pay 100k but has not yet paid it when O claims the cotton?

Definition
This concerns the elemtn of balue/buying (under 1-201(9) element of value/buying does not include satisfaction of a preexisting debt. A promis equals unsecured credit, thus the elements are met.
Term
What result if P, instead of buying cotton, takes it as a security for a previous loan?
Definition
The element of value/buying does not include satisfaction of a preexisting debt
Term
What result if A had wrongfully delivered the cotton to B, who is in the cotton business, as security for a loan that B had extended to A six months earlier and B had sold the cotton to P, who suspected nothing, for $100K?  
Definition
O wins.  O is protected against P because B was not the original entrustee of the cotton.  Specifically, O did not entrust B with the cotton.  P must purchase the goods from the original entrustee.  This could have been overcome if B was a buyer in the ordinary course of business from A, but B was not because he took the goods as security for a pre-existing debt which does not meet the element of value/buying.  
Term

A, who is in the cotton business, sold cotton to O, who paid A $60,000 and promised to pay the balance of $40,000 when O took delivery of the cotton in two weeks.  The bill of sale recited: “A hereby sells and conveys to O all right and title to cotton [giving description] and agrees to take good care and custody of said cotton until final delivery.”  A week later, A sold the same cotton to P, who took delivery without knowing of the sale to O and promised to pay A $90,000 in 30 days.  O sues P to replevy the cotton.

 

Suppose that P also left A in possession of the cotton and O got wind of the sale and took delivery. P sues O to replevy the cotton.  What result?  

Definition

                                                               i.      When focusing on entrustment—always focus on the “buyer in the ordinary course” NOT on the good faith purchaser under 2-403(2).  O wants to come in as the buyer in the ordinary course.  O would attempt to establish himself as a buyer in the ordinary course, but O has to show that O acted in good faith and that a prior party had not acted on the cotton.  If O did not have notice, he would be a buyer in the ordinary course.  O can’t take possession because he has notice of the sale to P.  There is nothing O can do because title has already been passed to P.  O will not satisfy the good faith element because he has notice.  If O had no knowledge then O could keep the cotton.  Moreover, if the good faith element was satisfied, value would be satisfied by O because he is getting the cotton under a pre-existing K of sale.  Does P run any risk if he leaves A in possession of the cotton? Well, he’s entrusting A with the cotton because he’s acquiescing in retention so I guess he runs the same risk as did O. 

Term
What is UCC 1-202 involve?
Definition

Notice or Knowledge:  “a person has “notice” of a fact if the person: (1) has actual knowledge of it; (2) has received a notice or notification of it; or, (3) from all the facts and circumstances known to the person at the time in question, has reason to know that it exists.

Term

 

: A, who is in the cotton business, sold cotton to O, who paid A $60,000 and promised to pay the balance of $40,000 when O took delivery of the cotton in two weeks.  The bill of sale recited: “A hereby sells and conveys to O all right and title to cotton [giving description] and agrees to take good care and custody of said cotton until final delivery.”  A week later, A sold the same cotton to P, who took delivery without knowing of the sale to O and promised to pay A $90,000 in 30 days.  O sues P to replevy the cotton.

 

What result?

 

Definition

 

                                                               i.      P wins.  There was an entrustment of the goods to A because O acquiesced in retention of the cotton.  P keeps the cotton because he was a buyer in the ordinary course in that he bought on unsecured credit, in good faith, without knowledge that the sale violated the rights of another party, and for consideration.  If P has not yet paid A the $90,00, what would you advise O to do? If P had not yet paid A, O could sue A to attach the money owed to A by P.  A converted the goods by delivering them to P and O should be able to recover damages. When talking about buying in the ordinary course, the type of consideration is described in (9), ignore the other definition of value.  A promise to pay, unsecured credit (don’t look at 1-204 at all) makes P a purchaser for value in the ordinary course.  Know difference between a buyer in the ordinary course and a good faith purchaser for value—and what qualifies as value or consideration!! 

 

Term
A, who is in the cotton business, sold a used cotton gin to O, who paid A $60,000 and promised to pay the balance of $40,000 when O took delivery of the machine in two weeks.  The bill of sale recited:  “A hereby sells and conveys to O all right and title to cotton gin [giving description] and agrees to take good care and custody of said machine until final delivery.”  A week later, A sold the same machine to P, who took delivery without knowing of the sale to O.  O sues P to replevy the machine.  What result? 
Definition
Under 2-403, this is not an entrustment to a “merchant that deals in goods of that kind”—A is in the cotton business, not the cotton gin business.  A deals in cotton but what was sold was a cotton gin, which is a piece of equipment.  If this was the only cotton gin ever sold by A, then there would not have been an entrustment to a merchant who deals in cotton gins—there would have been an entrustment to a merchant of cotton.  There are two types of entrustment: (1) delivery and (2) acquiescence in retention of possession (here).  If the instructions indicate that A is not to sell to anyone else, could we argue there wasn’t an entrustment? This would also apply to problem #6 b/c instructions in both cases said NOT to sell the goods.  The answer is NO—2-403(3)—definition of entrustment “regardless of any condition expressed between the parties to the delivery or acquiescence.”
Term
Negotial instruments
Definition

A promissory note is a promise to pay.  It contrasts with a check—a check reflects an order to the bank to pay an identified sum. Drafts are orders to pay sums of money—and checks are a special class of drafts.  

Term
Person who writes the check: 
Definition

“drawer” aka the “maker” of the note.

Term

Bank who is ordered to pay: 

Definition
 “drawee” or “payor” bank.
Term

Person who receives the money: 

Definition
“payee”
Term
UCC 3-104
Definition
Negotiable instrument means an “unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the order, if it: (1) is payable to bearer or to order at the time it is issued, (2) is payable on demand or at a definite time, or (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money.”  
Term
UCC 3-104(c)
Definition
3-104(c) states “an order that meets all of the requirements of subsection (a), except paragraph (1), and otherwise falls within the definition of a “check” in subsection (f) is a negotiable instrument and a check.  
Term
UCC 3-104(d)
Definition
“a promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this Article.” 
Term
UCC 3-104(e)
Definition
“an instrument is a ‘note’ if it is a promise and is a ‘draft’ if it is an order.”  If an instrument falls within the definition of both ‘note’ and ‘draft,’ a person entitled to enforce the instrument may treat it as either. 
Term
3-104(f) 
Definition

“check” means (i) a draft, other than a documentary draft, payable on demand and drawn on a bank or (ii) a cashier’s check or teller’s check.  An instrument may be a check even though it is described on its face by another term, such as “money order.” 

Term

3-104(h) states 

Definition
“teller’s check” means a draft drawn by a bank (i) on another bank, or (ii) payable at or through a bank.
Term
Problem 8: O owned $100k in $100 bills. A stole it and gave it to P, who did not suspect the theft, in payment for cotton. O sues P to replevy the money. What result? 
Definition

Money. UCC 1-201(24) defines “money” as a medium of exchange currently authorized or adopted by a domestic or foreign government.  If a coin or currency was from a regime no longer in existence, then it wouldn’t be money. 

 

Does art 2 or 3 of the code apply? Bills are money. Article 2 focuss on goods, but the definition of goods tells us that money does not count.  Definition of goods does not include money.

 

So what do we do? Look to the common law: MIller v. Race money can't be replevied.

Term
  Greek Orthodox Church case
Definition

Byzantine mosaic was stolen in the late 1970’s.  Art dealer, Goldberg, purchased the mosaic at the Geneva Airport and made a cursory inquiry to determine whether the mosaics had been stolen.  Church sues Goldberg for recovery.  “Discovery rule”—SOL does not run until the Church, using due diligence, knew or was on reasonable notice of the identity of the possessor of the mosaics.  2 key holdings pertaining to SOL and nemo dat doctrine.  Substantive law to be applied was of Indiana which had a six year SOL.  The suit was filed ten years after the theft.  Goldberg bought the paintings in 1988.  The SOL is irrelevant b/c thieves never acquire title to stolen goods in Indiana—nemo dat rule.  “A thief obtains no title to or right to possession of stolen items and can pass no title or right to possession to a subsequent purchaser.” Goldberg never had legitimate title.  Goldberg was not a GFP—found that the mosaic was valued at 3-6 million and was only paying 1 million.  Goldberg acted in bad-faith taking into consideration all of the circumstances.  She did not investigate the title that the sellers had to the painting.  Would it have made a difference if Goldberg had acted in good faith? No, not under the nemo dat rule b/c she acquired title from a thief who did not have good title to transfer.

  • Discovery rule:”  a cause of action accrues when the real owner first knew, or reasonably should have known through the exercise of due diligence, of the cause of action.”  (New Jersey uses the discovery rule)
  • UCC 2-403 is the closest statement to the nemo dat principle found in the UCC.  Though, the UCC provision does not use or incorporate the word “thief.”  It would be better to title this “title acquired by thieves.
  • SOL tests: discovery rule, demand and refusal rule (protects real owner), time of theft, and from the time the GFP has possession.  Demand and refusal rule is the rule that most benefits the real owner of the items.       

Term
Solomon R. Guggenheim Foundation v. Lubell
Definition

The Guggenheim Foundation is seeking to recover a Chagall gouache worth an estimated $200,000.  The Guggenheim believes it was stolen from its premises in the late 1960s.  Rachel Lubell and her husband bought the painting for $17,000 from a well-known Madison Ave. gallery in 1967 and have had it for more than 20 years.  Mrs. Lubell had no reason to believe the painting was stolen. 

  • Defenses:  SOL, good faith purchaser for value, laches, adverse possession, and culpable conduct.  Essence of SOL defense:  one should not unreasonably delay filing a lawsuit. GFP for value: not protected if property is stolen.  Laches (if you wait so long you unduly prejudice innocent parties).  This case reaffirms the nemo dat rule which protects real owners, even from good faith purchasers. 
  •  
    1. Trial court holding: Mrs. Lubell argued three year SOL barred claim.  Ct. acknowledged that typically a cause of action in replevin accrues when demand is made upon the possessor and the possessor refuses to return the chattel; however, here, the court reasoned that in order to avoid prejudice to a GFP, demand cannot be unreasonably delayed and the property owner has an obligation to use reasonable efforts to locate its missing property to ensure that demand is not delayed.  For thieves, SOL began to run at the time of theft.  For good faith purchasers, SOL began to run once demand was made.  Didn’t like the law—wanted to recognize a due diligence obligation on the owner. 
    2. Appellate Divison: dismissed SOL defense and denied SJ in favor of Lubell (there were questions of fact—whether museum’s response to the theft was reasonable, etc.).
    3. Court of Appeals:  Demand and Refusal rule applies.  The burden of investigating the credibility of a work of art rests with the potential purchaser.  The burden of proving the painting was not stolen properly rests with Mrs. Lubell.      

§  New York law holds that a cause of action  for replevin against a GFP of a stolen chattel accrues when the true owner makes demand for return of the chattel and the person in possession of the chattel refuses to return it.  Although it doesn’t make sense, a different rule applies when the stolen object is in the possession of a thief.  In that situation, the SOL runs from the time of theft for 3 years—even if the property owner is unaware of the theft at the time it occurred.  Demand and Refusal rule was the rule in New York in 1991. 

§  New York rejected the adoption of the discovery rule.  The statute vetoed would have provided a 3 yr SOL would run from the time these institutions gave notice that they were in possession of a particular object.  The Governor expressed concern that such a rule would not provide reasonable opportunity for individuals of foreign gov’ts to receive notice of a museum’s acquisition and take action to recover it before their rights are extinguished.”

Term
UCC 2-403(1) 
Definition

“A purchaser of goods acquires all title that the purchaser’s transferor had or had power to transfer except that a purchaser of a limited interest  acquires rights only to the extent of the interest purchased.  A person with voidable title has power to transfer a good title to a good-faith purchaser for value.  If goods have been delivered under a transaction of purchase, the purchaser has such power even if:

(a)     the transferor was deceived as to the identity of the purchaser;

(b)     the delivery was in exchange for a check that is later dishonored;

(c)     it was agreed that the transaction was to be a “cash sale”; or

(d)     the delivery was procured through criminal fraud.

 

Official Comment:

1.        The provisions of this section are applicable to a person taking by any form of “purchase” under 1-201(29).  “Purchase” means taking by sale, lease, discount, negotiation, mortgage, pledge, lien, security interest, issue or reissue, gift, or any other voluntary transaction creating an interest in property.”

Term
O à A à P; A is the purchaser’s transferor. O owned cotton worth $100k. A stole it and sold it to P, who paid A $100k for it, not suspecting it was stolen. O sued P to replevy the cotton
Definition
According to 2-403 of the UCC, a thief who steals goods obtains no title to the goods and a purchaser acquires only the title that the seller had—which in this case, is none.  If O sues P to replevy the cotton, he will win the suit b/c P has no rightful title under UCC 2-403.  P has the right to be reimbursed by A for the 100,000 he paid him.  P must sue A, not O to recover the money lost.  O would get the property back based on UCC 2-403(1); A had void title and would pass void title to P. Know have void title b/c of common law (thief can’t pass good title). When does SOL begin to run? Depends on the approach adopted by the jrd, discovery, demand and refusal, theft, and possession of GFP.
Term
Can P be reimbursed by O for the $100K paid for it
Definition

(a)     No, under UCC P is out of luck, but civil law jrd may be different (not in US). But P can go after A for breach of transferability warranty UCC 2-312. Breach of warranty of title so anytime sale, seller contracts to make good title to P can recover from B (if can find B).

Term
Would it make a difference if A is in the cotton business?  
Definition

(a)     No, because O did not “entrust” his cotton to A, but A stole it. A is still a thief.  Doesn’t matter if GFP; if in the business held to a higher standard. Someone in the cotton business would be a merchant. For purposes of this question it would not make a difference. Will still not allow you to retain possession of the goods. Proper owner can still recover the goods. Makes it easier to justify your reliance, but that will not help you b/c issues of good faith are irrelevant in cases of stolen property.

Term
Would it have made a difference if A had sold it to B who had sold it to P
Definition

(a)     ?  No difference b/c no one other than O has rightful title.  According to UCC 2-312, P could sue B for not giving him good, clean title transferred in a rightful manner and b/c now P will be exposed to a lawsuit to protect the title.  The seller has a duty in the contract for sale to ensure that the title conveyed is good and its transfer rightful and shall not unreasonably expose the buyer to litigation b/c of any colorable claim to or interest in the goods.  The result would be different if O himself stole the cotton and has no rightful title to the cotton either, then O can’t sue and win.  Under UCC 2-403 can only pass interest the transferor had and here each transaction only passes void title. P’s recourse against B is UCC 2-312 for breach of warranty of title; seller makes warranty that he has good title – buyer has recourse against seller. If no warranty then P would be out of luck.

Term
nemo dat quod non habet
Definition

The common law begins with the principle that a buyer acquires no better title to goods than the seller had, a principle embodied in the maxim nemo dat quod non habet (one cannot give what one does not have).  To this principle the common law admits a number of exceptions, the most significant has been the doctrine of voidable title for cases of fraud.  Under common law, once you steal you never acquire title to property. 

  1.  
    • In Birmingham, nemo dat applies. 
    • A (title is good)→B (stolen and title is void)→C (title is void)

 

Term
The civil law (anywhere outside U.S, Swiss law),
Definition

 

), however, begins with a very different principle in which the good faith purchaser of goods is generally protected against the original owner, a principle expressed in the phrase possession vaut titre (possession is equivalent to title).  Person has to act in good faith.  No protection for bad faith.  This is not an absolute protection, but is subject to a time limit.  But most civil systems make an exception for cases of theft, allowing the original owner of stolen goods to reclaim them from a good faith purchaser within a statutory period of, in French law, three years.  Some of these systems protect the good faith purchaser who has acquired stolen goods at a fair or market or from a merchant who deals in similar goods by requiring the purchaser to return the goods to the original owner only on reimbursement of the purchase price. 

  • If you act in bad faith, you will not be protected by the civil law. 

 

Term
“Market Overt:”
Definition

 

:” English law makes an exception to the principle of nemo dat by protecting the good faith purchaser of stolen goods where the goods “are sold in market overt according to the usage of the market.”  A market overt is an open and public market. 

 

Statute of Limitations:  Because UCC 2-403(1) follows the maxim nemo dat, a good faith purchaser is usually remitted to the argument that the statute of limitations bars the original owner from reclaiming the goods.  

 

Term

 

 

 

Problem 9: O was the owner of a negotiable promissory note, made by M, who promised “to pay on demand to bearer $100k.” A stole it from O and gave it to P, who did not suspect the theft, in return for $100k. O sues P to replevy the note.

 

Definition

 

(a)     What result? 3-102 says that Article 3 applies to negotiable instruments.  We have here a negotiable promissory note.  A note is a negotiable instrument so Art. 3 governs. Once determine if a holder in due course, then can take free of any claims (see 3-306).  3-306 states, “a person taking an instrument, other than a person having rights of a holder in due course, is subject to a claim of a property or possessory right in the instrument or its proceeds, including a claim to rescind a negotiation and to recover the instrument or its proceeds.  A person having rights of a holder in due course takes free of the claim to the instrument.”  Does P satisfy all the elements of a holder in due course?  O could still recover if P is not a holder in due course (3-302). Two types of neg. instruments: (1) bearer (not specified) and order instrument (specified holder). Important to determine which one before answering problem.  This is a bearer instrument b/c it says pay to bearer (3-109).  3-109 states that “a promise or order is payable to bearer if it (1) states that it is payable to bearer, (2) does not state a payee, or (3) states that it is payable to cash.”  So then examine number of elements to determine if comes in as holder in due course (3-302), b/c holder in due course has rights and can cut off owner’s rights (3-306).  3-302: Holder in Due course: “the holder of an instrument if: (1) the instrument when issued or negotiated to the holder does not bear apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and (2) the holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature of has been altered, (v) without notice of any claim to the instrument described in 3-306, and (vi) without notice that any party has a defense or claim in recoupment described in 3-305(a).  P is a holder in due course b/c he meets all the elements below:   

1.       Instrument: governed by Article 3, a negotiable instrument.

2.       Value: 3-303(a)(1): the instrument is issued or transferred for a promise of performance. Promise was to pay $100k.  3-303(a)(1) states that “an instrument is issued or transferred for value if (1) the instrument is issued or transferred for a promise of performance, to the extent the promise has been performed.” 

3.       Notice: w/o notice of the theft.

4.       Good faith: honesty in fact and the observance of reasonable commercial standards of fair dealing. (3-103(6)) P did not suspect anything.

5.       Holder: 1-201(21): “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” This is a bearer instrument and P is in possession, so P is a holder.

3-201(a) states that negotiation “means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder. (b) If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.”  Even though A is a thief and stole the promissory note, involuntary negotiation occurred.

 

                                                            

Term

 

Problem 9: O was the owner of a negotiable promissory note, made by M, who promised “to pay on demand to bearer $100k.” A stole it from O and gave it to P, who did not suspect the theft, in return for $100k. O sues P to replevy the note. (a)    

 

What if P only paid $60K? 

 

 

Definition

(a)     2 issues:

1.        Did P pay value? 3-303(a)(1); he did give value according to the UCC. All that is required is that you make a promise and then you make good on the promise.  3-303(a)(1) states that “an instrument is issued or transferred for value if it is issued or transferred for a promise of performance, to the extent the promise has been performed.”

2.        Paying less for the note is normal.  Many times you discount a note b/c the holder has to wait for a long time to cash it in and cannot cash it immediately—to compensate for the delay you might discount the note—but look at margin of discount—shouldn’t be too great.  The issue comes up when the purchase price is ridiculously low, then might have a good faith issue, which would be a jury question.  Usually when you pay less than what the item is worth it raises some issues re: good faith b/c one of the tests of good faith is honesty and these circumstances are suspicious.  If he acted in bad faith, he is not a holder in due course and O would be able to get it back. 

Term
What if P had promised to pay $100k but has not yet paid it?  
Definition

(a)     No value.  Made the promise to pay but has not yet paid.  3-303(a)(1): Can make a promise to pay, but must pay.  P would not be a holder in due course.    

Term
What result if P had given a check for $100k, which is still in the hands of A
Definition

(a)     Meets the value requirement 3-303(a). Transfer.

Term
To what extent would P be a holder in due course if P had promised to pay $90k and had paid only $80k before learning of the theft?
Definition

(a)     P has paid $80k then entitled to 80k/90k.  P can keep 80k/90k*100k of the $90k note.  3-302(d) states “if, under section 3-303(a)(1), the promise for performance that is the consideration for an instrument has been partially performed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance.”  P has performed, but not fully so will only be in relation to what has performed.  Partial performance/promised performance multiplied by the Value.

Term

Problem 10: O was the owner of a neg. promissory note, made by M, who promised “to pay on demand to the order of O $100k.” A stole it from O, forged O’s indorsement, and sold it to P, who did not suspect the theft, for $100k. O sues P to replevy the note. What result?

Definition

1.        Order note b/c ordered to O.  3-109(b) states “a promise or order that is not payable to bearer is payable to order if it is payable to the order of an identified person.” 3-306: holder in due course: in order for P to have rights he must come in as a holder in due course. So is P a holder in due course? We have an instrument:  this is an order instrument, not a bearer instrument; we have value; good faith is satisfied; P does not come in as a holder in due course b/c (1-201(21)) O is not a “holder” b/c although he is in possession, he is not the person identified.  Could argue that the instrument was transferred legally from O to P. Negotiate the instrument from O to P. Would require an indorsement and a delivery of the instrument (3-201). P would have to show proof that there was indorsement and a delivery. O needed to have indorsed the note over to A in order for it to be valid.  Endorsement is required by 3-201(b):  “if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.”  When you have an indorsement and there is a forged instrument, it appears that O signed it though, so from P’s perspective w/o knowledge of the forgery, he believes this is a bearer instrument. (3-205(b) states that “if an indorsement is made by the holder of an instrument and it is not a special endorsement (signed over to another person), it is a “blank indorsement.”  When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.”  W/o knowledge of forgery, it is likely that P comes in as holder.  There was an indorsement but it was by the wrong person—it was not O who endorsed it. It was forged.  Forged endorsements are not given effect.  3-403 governs forgeries: “an unauthorized signature is ineffective except as the signature of the unauthorized signer in favor of a person who in good faith pays the instrument or takes it for value.”  When P buys it, he believes it is a bearer instrument.  It could not be an order instrument b/c there was no legitimate indorsement even though there was delivery.  Bottom line: this instrument was NEVER indorsed.  Under 3-403 is there any time you can give effect to that unauthorized signature? Yes, for an innocent purchaser who buys for value.  P does not come in as a holder of due course, but P paid A.  Court can look at the forged signature and treat it as A’s signature (the unauthorized signer) and not O’s signature.  The Court would look at that signature as A purporting to sell that value to P and will allow P to recover that amount from A.  All of this under 3-403.  There are two issues here: note the effect that the forgery has, but then note that the court looks at O’s forged signature as A’s signature and bases liability upon A.  What happens to P’s rights if doesn’t come in as holder? It disappears. P fails to extinguish O’s rights.

Term

 

Problem 10: O was the owner of a neg. promissory note, made by M, who promised “to pay on demand to the order of O $100k.” A stole it from O, forged O’s indorsement, and sold it to P, who did not suspect the theft, for $100k. O sues P to replevy the note. What result if before the theft, O had endorsed the note on the back by signing “O”?

 

Definition

1.        When O endorsed it became a bearer instrument (3-205(b) states that “if an indorsement is made by the holder of an instrument and it is not a special endorsement (signed over to another person), it is a “blank indorsement.”  When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.”  Should it matter that A acquired the instrument through theft for purposes of negotiating the instrument?  3-201 says that “negotiation” means a transfer of possession, whether voluntary or involuntary—and the other two elements, “transfer of possession” and “indorsement” are satisfied.  So the instrument was properly negotiated. 3-205: The indorsement by O without noting a third person on the instrument makes it a bearer instrument, and is a blank indorsement.  

Term

 

Problem 10: O was the owner of a neg. promissory note, made by M, who promised “to pay on demand to the order of O $100k.” A stole it from O, forged O’s indorsement, and sold it to P, who did not suspect the theft, for $100k. O sues P to replevy the note. What result if, before the theft, O had endorsed the note on the back by writing “pay to the order of B, signed O”?

 

Definition

1.        Under UCC 3-205(a) “if an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a “special indorsement.”  It would be an order instrument b/c made to specific person.  This is a special indorsement b/c it was indorsed only to B—O identified another person.  P would not come in as a holder in due course. P was never even a holder: he was not identified on the instrument (1-201(21)). 

 

Term

Problem 11: O was the owner of a promissory note made by M, who promised to “pay to the order of O $100k.” A fraudulently obtained it from O, who did not endorse the note. A gave it to P who did not suspect the fraud, in payment for cotton delivered by P to A. O sues P to replevy the note. What result?

Definition

                                                               i.      Main rule: holder in due course is able to get instrument free of any claims.  UCC 3-306 states “A person taking an instrument, other than a person having rights of a holder in due course, is subject to a claim of a property or possessory right in the instrument or its proceeds, including a claim to rescind a negotiation and to recover the instrument or its proceeds.”  Would P come in as such a holder in due course under 3-302? No, b/c P is not even a holder under 1-201(21) because a holder is “a person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.Under 3-201, “if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.  If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.” O has to endorse it and deliver. Look to whether instrument is a bearer or order instrument. Here it is an order instrument so in order for P to acquire rights, O would have to endorse the note. P does not meet the classification of a holder.  1-201(21) P is not a holder b/c he is not an identified person on the note, the note identifies O, not P.  So, P is in possession of the note but is NOT the identified person in possession. 

                                                             ii.      Would the result be different if P had promised to deliver cotton to A but has not yet done so?  Significance: promise must be performed, but this would not change the result b/c still not a holder.  Issue of value under 3-303: “an instrument is issued or transferred for value if the instrument is transferred for a promise of performance, to the extent the promise has been performed. If none of the promise has been performed, then no value has been given.   

Term
Miller v. Race.  Discusses Bearer instruments
Definition

Terms of note said “William Finney or Bearer.” Finney sent it in the mail, robber stole it, and it came into possession of the plaintiff for full and valuable consideration without notice of the theft.  Bearer instrument and is treated as cash.  The reason you can’t recover money is b/c it has no earmarks.  It cannot be recovered after it has passed in currency.  So, in the case of money stolen, the true owner cannot recover it, after it has been paid away fairly and honestly upon valuable consideration.  Bank-notes are likened to money.  The plaintiff innkeeper took the banknote for full and valuable consideration—it was just as if he had been paid in cash.  “An action may lie against the finder, but not after it has been paid away in currency.”  Holding: if money that is stolen and passed to a GFP for value, you cannot recover it.

 

In this case the court found that the GFP should be protected. 

Term

 

Hypo:  O has in her possession a paper that says promise to pay bearer, A steals it and sells it to P for value.  P is a good faith purchaser.  Can O recover? 

Definition
No. P will be protected b/c it is a bearer instrument. Under rules of negotiation, with a bearer instrument you only need a transfer of possession alone (3-201).  3-306 states that “a person having rights of a holder in due course takes free of the claim to the instrument.” Here, P has rights of a holder in due course and takes free of O’s interest. (This provision is similar 2-403 nemo dat—where GFP is protected.)  You have to come in as a holder in due course to be protected. 
Term
3-302
Definition

Holder in Due Course (3-302):

  1.  
    1. must be the holder: 1-201(21): the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.
    2. of an instrument
    3. who took it for value: In order to show that a person is a GFP and not merely a donee, the person in possession must show that he gave value.  One gives “value” if one gives “any consideration sufficient to support a simple contract” under 3-303.  Value is a broader concept than consideration, for one can give value by giving something that would not, because of the pre-existing duty rule, be consideration. 
    4. in good faith: (3-103(a)(6) definition of good faith in Article 3.)
    5. and without notice: (3-304 overdue) (1-202): “A person has notice of a fact if the person (1) has actual knowledge of it, (2) has received a notice or notification of it, or (3) from all the facts and circumstances known to the person at the time in question, has reason to know that it exists.”

*The instrument when negotiated to the holder cannot bear any appearance of forgery or alteration or otherwise look irregular or incomplete as to call into question its authenticity.

Term
O is in possession as a holder made payable to bearer.  Is O a “holder in due course?”  
Definition

Yes.  O is the holder of the negotiable instrument made payable to bearer.  Would A, as a thief, be considered a holder of that instrument?  Yes—A would come in as a holder.  Whether the transfer is voluntary or involuntary doesn’t make a difference—it is going to be involuntary as far as the thief is concerned, but it doesn’t matter. Still a holder.  The thief is a “holder” but not a “holder in due course.”

 

Term
Instrument made payable to order of O.  It is stolen by A.  A has possession, but does A come in as a holder?  
Definition

No, b/c of 1-201(21) Holder means “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.”  The identified person must have possession.  If A has possession, he does NOT meet the standard. 

  • Rule is this: if its a bearer instrument, anyone who has possession has rights.  If it is an ordered instrument to a specific person, only that person has rights and can be a “holder.” 

Term
How do you become a holder? 
Definition

When the instrument is negotiated to you (3-201).  By negotiated, we mean transferred.  If it’s a bearer instrument, you transfer rights by transferring possession.  Just delivering that instrument to another person. (This is how a thief can become a holder—does not matter whether delivery is voluntary.)  If it is an order instrument, it must be indorsed and delivered (3-201).

Term
What are the main ways to indorse an instrument?
Definition

  • special or blank (3-205).  Blank—check made payable to O and signs his name.  Special endorsement—O wants to assign his rights to B, where you endorse and assign your rights to another person—if you identify another person, it is a special indorsement.   Signing in blank is just signing your name. It automatically transfers rights upon delivery (3-201) and the instrument is treated just like a bearer instrument. When you endorse it specially you sign your name and identify another person who is to receive the funds. Then you must deliver to the special person identified.  

Term
What in an indorsement according to the UCC? Where is it located?
Definition

  • UCC 3-204:  “indorsement” means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of negotiating the instrument.

Term
What does UCC 3-205 say? 
Definition

  • a) “if an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a “special indorsement.” (b) “if an indorsement is made by the holder of an instrument and it is not a special endorsement (signed over to another person), it is a “blank indorsement.”  When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.”    

Term
Bd. of Inland Revenue v. Haddock (The negotiable cow)
Definition

). Haddock issued a check written on a cow.  He had issued an order.  The instrument that Haddock submitted was a cow.  When it comes to negotiable instruments, so long as you are ordering someone to pay, it does not matter the instrument you use.  The only place left for indorsement was on the belly of the cow.  The Commissioner did not indorse the cow—but he paid, and the suit was dismissed.  The rule is that a check must be indorsed to an identified party in order for the subsequent party to have rights. 

Term

VALUE

Definition

UCC 3-303 Definitions of Value

(1)     a credit transaction will not suffice—will not be considered to have paid for value. 3-303(a) says that a promise for performance (which is essentially what credit is) is only value to the extent performed; therefore, if a purely credit transaction—no value has been paid. 

(2)     Security interest is viewed as value. Though, if you file a lawsuit for a lien and you are awarded a lien on an asset, it does not satisfy as “value.”

(3)     Instrument can be issued or transferred as payment of, or as security for, an antecedent claim.  If there was already a debt that was owed and if you transfer the instrument as payment or security, this is “value.”

(4)     In exchange for a check, its value.

(5)     In exchange for a letter of credit.  A promise by a bank to pay an individual a sum.  If a buyer approaches his bank to ask it to pay the seller, that would amount to “value.” 

Term
If you have information that a check was forged can be a holder? 
Definition

WITHOUT NOTICE:  3-304.  3-302: If you have information that a check was forged you cannot be a holder in due course.  Also, alterations—if the check has been altered, you can’t have notice and be a holder in due course.  If you know there is a claim to the check, this would be deemed to have notice and would not be a holder in due course.  There are defenses: if a person holds a gun to your head for you to write a check, if the holder has notice that it is procured through that type of fraud—not holder in due course.

 

Note on notice:  if you do not have actual knowledge but notice was sent to you, you are deemed to have notice of that fact.  The circumstances surrounding it can be used to infer that one should have notice. 1-202. 

Term
DOCUMENTS OF TITLE
Definition

UCC 1-201(16) “Document of Title” means a record (i) that in the regular course of business or financing is treated as adequately evidencing that the person in possession or control of the record is entitled to receive, control, hold, and dispose of the record and the goods the record covers and (ii) that purports to be issued by or addressed to a bailee and to cover goods in the bailee’s possession which are either identified or are fundible portions of an identified mass.  The term includes a bill of lading, transport document, dock warrant, dock receipt, warehouse receipt and order for the delivery of goods.” It describes rights to goods.  

Term
“Warehouse receipt” 
Definition

UCC 1-201(45) “Warehouse receipt” means a receipt issued by a person engaged in the business of storing goods for hire.”  At times, commodities of enormous value must be kept in storage pending processing, distribution and use.  Other commodities—like fuel oil—are stored in large quantities because their use is seasonal.  Warehouse receipts may be employed as a means for traders to deal in these goods without the inconvenience of physical delivery.  A slightly different use arises when a concern, such as a brewer or mill, needs to hold commodities which tie up more capital than it can spare.  Using warehouse receipts as collateral may facilitate a low-interest loan that otherwise would not be available.  The rights of the transferee (the recipient) of the warehouse receipt are an important factor to these transactions.  A transferee wants to be sure they are taking both the document and the goods free from claims of third parties.  

Term

NON-NEGOTIABLE WAREHOUSE RECEIPT

Definition

7-501 states that the following rules apply to a negotiable tangible document of title: 

1.       If the document’s original terms run to the order of a named person, the document is negotiated by the named person’s indorsement and delivery.  After the anmed person’s indorsement in blank or to bearer, any person may negotiate the document by delivery alone.

2.       If the document’s original terms run to bearer, it is negotiated by delivery alone.

3.       If the document’s original terms run to the order of a named person and it is delivered to the named person, the effect is the same as if the document had been negotiated.

4.       Negotiation of a document after it has been indorsed to a named person requires indorsement by the named person and delivery.

5.       A document is duly negotiated if it is negotiated in the manner stated in this subsection to a holder that purchases in good faith, without notice of any defense against or claim to it on the part of any person, and for value, unless it is established that the negotiation is not in the regular course of business or financing or involves receiving the document in settlement or payment of a monetary obligation.

Term
7-502 
Definition

states that “a holder to which a negotiable document of title has been duly negotiated acquires title to the document, and title to the goods.

Term
7- 503 
Definition

7- 503 states that “a document of title confers no right in goods against a person that before issuance of the document had a legal interest or a perfected security interest in the goods and that did not: (1) deliver or entrust the goods or any document of title covering the goods to the bailor or the bailor’s nominee with actual or apparent authority to ship, store, or sell, power to obtain delivery, or power of disposition; (2) acquiesce in the procurement by the bailor or its nominee of any document.”  A thief of goods cannot indeed by shipping or storing them to the thief’s own order acquire power to transfer them to a GFP.  

Term
7-504 
Definition

states that “(a) a transferee of a document of title, whether negotiable or nonnegotiable, to which the document has been delivered but not duly negotiated, acquires the title and rights that its transferor had or had actual authority to convey. (b) In the case of a transfer of a nonnegotiable document of title, until but not after the bailee receives notice of the transfer, the rights of the transferee may be defeated: (4) as against the bailee, by good-faith dealings of the bailee with the transferor.”

Term
Problem 12: O owned cotton worth $100,000.  A, who is in the cotton business, stole it from O and stored it in the W warehouse, which issued a negotiable warehouse receipt to A’s order.  A negotiated the receipt to P, who did not suspect the theft, for $100,000.  Who gets the cotton?
Definition

O gets the cotton.  P meets both the elements of being a holder and due negotiation because he purchased the goods in good faith for value w/o notice and the purchase was in the regular course of A’s business, thereby satisfying 7-501(d).  Although 7-502 is satisfied, because P is a holder who would acquire title to the document and the goods, except for the fact that O qualifies as an innocent owner under 7-503.  Under 7-503, O did not deliver or entrust the goods or any document of title to A, nor did he acquiesce in the procurement by A of the goods.  Thus, O wins because there was not entrustment to A.  What is A’s liability to P?  A is liable to P under 7-507 for breach of warranty.  7-505 states, “if a person negotiates or delivers an instrument of title for value, in addition to any warranty made in selling or leasing the goods, warrants to its immediate purchaser only that: (1) the document is genuine, (2) the transferor does not have knowledge of any fact that would impair the document’s validity or worth; and (3) the negotiation or delivery is rightful and fully effective with respect to the title to the document and the goods it represents.

·         Was the document duly negotiated?  Yes, he satisfies all 7 elements of due negotiation:  he is the (1) holder, (2) he purchased the instrument, (3) in good faith, (4) without notice, (5) in the regular course of A’s business, (6) negotiation in due course, and (7) for value.  P is a holder to which the document has been duly negotiated.  However, since O is not at fault under 7-503, he may recover. 

Term
O owned cotton worth $100,000.  O stored the cotton in the W warehouse which issued a negotiable warehouse receipt to O’s order, which O placed in a safe.  A, O’s bookkeeper, stole the receipt and indorsed it in the name of “O” and sold it to P, who did not suspect the theft for $100,000.  Who gets the cotton?
Definition

O wins because O did not indorse the document.  Basic issue is lack of sufficient endorsement.  Under 3-403, “an unauthorized signature is ineffective except as the signature of the unauthorized signer in favor of a person who in good faith pays the instrument or takes it for value.”  An unauthorized signature/forgery can’t create a negotiation.  Thus, because the indorsement is ineffective, P is not a holder.  An argument can also be made that A did not negotiate the document in the regular course of A’s business.  7-501 requires indorsement by the named person.  Here, there was not negotiation b/c of the fraudulent indorsement. Was the document duly negotiated?  Go through 7 elements: delivered, purchased in good faith, without notice, for value BUT not in the regular course of business and NOT properly indorsed by named person; therefore, he was not a holder (b/c not indorsed by O).  Therefore, document was not duly negotiated. P will be able to recover against A, the unauthorized signer, and O will get his cotton.

 

Comment #2 to 3-403:  The except clause of the first sentence of subsection (a) states the generally accepted rule that the unauthorized signature, while it is wholly inoperative as that of the person whose name is signed, is effective to impose liability upon the signer or to transfer any rights that the signer may have in the instrument.  The signer’s liability is full liability on the instrument

Term

Problem 14: O owned cotton worth $100,000.  O stored the cotton in the W warehouse which issued a negotiable warehouse receipt to O’s order.  O in preparation for a proposed sale, indorsed the receipt by signing “O” and placed it in a safe.  A, O’s bookkeeper, stole the receipt and sold it to P for $100,000. 

(A) Who gets the cotton? 

Definition

                                                               i.      O wins.  P became a holder because the document was a bearer document that P had possession of paid value, and it was nearly duly negotiated because P purchased it in good faith, without notice, and for value.  7-501(a)(1) states that after the named person’s indorsement in blank or to bearer, any person may negotiate the document by delivery alone.  7-501(a)(5) further states that “a document is duly negotiated if it is negotiated in the manner stated in this subsection to a holder that purchases it in good faith, without notice of any defense against or claim to it on the part of any person, for value, unless it is established that the negotiation is not in the regular course of business.  But, to be “duly negotiated” the negotiation must occur in the regular course of A’s business.  A was not acting in the regular course of her business, thus, O wins.

Term
(b) What result if A had negotiated the receipt to a friend B, who is in the cotton business, who had sold it to P?  
Definition

                                                               i.      With regard to P, P comes in as a holder (because it’s a bearer instrument and he has possession 7-501(a)(2)).  Further, B duly negotiated the instrument because it was given to a holder, that purchased it in good faith, for value and without notice—and, the negotiation was in the regular course of business, B’s business.  Under 7-502, “a holder to which a negotiable document of title has been duly negotiated acquires thereby: title to the document, and title to the goods.  Now, it becomes necessary to look at the owners conduct under 7-503.  7-503 states that “a document of title confers no right in goods against a person that before issuance of the document had a legal interest or a perfected security interest in the goods (original owner) and that did not: (1) deliver or entrust the goods or any document of title covering the goods to the bailor, or (2) acquiesce in the procurement by the bailor or its nominee of any document.  When looking at 7-503, O is not blameworthy because he did not entrust A with the document.  Unless O gave A the combination to the safe, there was no entrustment.  Under 7-503(1)(b), however, O did acquiesce in the procurement of the goods by storing the goods in the warehouse and obtaining a receipt.  O placed the goods in the stream of commerce.  P wins. 7-503 (a)(2) states “acquiescence in the procurement by the bailor or its nominee of any document” not goods. Stream of commerce---aytime you get issued a docuent of title you have introduced into stream of commerce. 

Term
(c) What result if P had promised to pay $100,000 for the receipt but had not yet paid it?  
Definition

                                                               i.      This question focuses on the value requirement, and P wins because mere promise to pay is sufficient consideration to transfer document of title under 1-204: “a person gives value…in return for any consideration sufficient to support a simple contract. (b/c article 7 does not give definition of value look back to the general definitions.) 

Term

O owned cotton worth $100,000.  O stored the cotton in the W warehouse, which issued a negotiable warehouse receipt to O’s order.  A fraudulently obtained it from O, who indorsed it signing “O”.  A, who is in the cotton business, negotiated it to P, who did not suspect the fraud, for $100,000.

 

who gets the cotton?

Definition

(a)     ?  P wins.  P wins because he met all of the elements of being a holder and due negotiation.  He is a holder (this is a bearer instrument b/c O indorsed it and he is in possession), negotiation in due course, purchaser, good faith, for value, without notice, and done in the regular course of business.  Under 7-503, we look at the conduct of O and find that O is blameworthy because he acquiesced in the procurement of the goods by entrusting them to the warehouse.  In Comment 1 to 7-503, it states “in general it may be said that the title of a purchaser by due negotiation prevails over almost any interest in the goods which existed prior to the procurement of the document of title if the possession of the goods by the person obtaining the document derived from any action by the prior claimant which introduced the goods into the stream of commerce.”  Here, the owner put the cotton in the stream of commerce by placing it in the warehouse, so owner will not be protected. P wins. 

Term
What result if O had not indorsed the receipt?  
Definition

(a)     If the document is not indorsed, then the document is not duly negotiated because P does not qualify as a holder b/c he is not identified on the document and the document is not a bearer instrument.  Then it would still be an order instrument made out to O.  When a document is not duly negotiated we look to 7-504 which says that “ a transferee of a document of title…to which the document has been delivered but not duly negotiated, acquires the title and rights that its transferor had or had actual authority to convey.”  If we were dealing purely with goods, A would have voidable title which would have been transferred to good title upon the transfer to P.  However, the rule for documents of title is different then goods, and it states that A had no rights that could be changed into good title.  Thus, O wins.

Term
What result if the receipt were a non-negotiable one, which was transferred (not negotiated) to P? If non-negotiable then not possible to endorse and transfer documents. 
Definition

(a)     Look to 7-504: if non-negotiable doc. transferred to P then would only get the same rights as A.  Non-negotiable under 7-504(a), transferor/A transfers to transferee/P and transferee/P acquires only such rights as transferor has.  A did not have good title to the document.  If we were dealing with goods A would have had voidable title, and if A transferred to P goods before O intervened then P would have good title.  But rule is very different for document of title, no similar rule as 2-403 thus when non-negotiable document of title is fraudulently taken and transferred, it’s void title b/c when A transfers to P, P only acquires such rights as A has.  Would P’s position be improved if P had notified W of the transfer before O claimed the cotton?  Under 7-504(b)(1), “in the case of a transfer of a non-negotiable document of title, until but not after the bailee (warehouse) receives notification of the transfer, the rights of the transferee may be defeated (a) by those creditors of the transferor who could treat the sale as void.” O is creditor.  7-504(2) makes it clear that the transferee (P) of a non-negotiable document may acquire rights greater in some respects than those of his transferor (A) by giving notice of the transfer to the bailee.  By notifying W (warehouse—the bailee) of his having possession of the document of title, it makes it impossible for O (A’s creditor) to come and get the goods.  Thus, by P acting in a timely manner before O claimed the goods, P wins, and O’s claim would be cut off.  Once Warehouse/bailee is notified of the transfer of title, P’s position is improved in relation to problem B above and P wins.  Note, because of A’s fraud, O can rescind the sale up until the time that P notifies W of transfer.  P has a stronger claim upon notification.  7-504(b)(1) limited only to non-negotiable documents. Can defeat by notifying the bailee of the transfer of the document. This cuts off rights of the owner to reclaim possession of the document.

 

Comments to 7-504:  In contrast to situations involving the goods themselves the operation of estoppel or agency principles is not here recognized to enable the transferor to convey greater rights than the transferor the actually has.  Subsection (b) makes it clear, however, that the transferee of a nonnegotiable document may acquire rights greater in some respects than those of his transferor by giving notice of the transfer to the bailee. 

Term

owned cotton worth $100,000 .  O gave the cotton to A, one of its truck drivers, with instructions to haul it to the ginhouse.  A stole the cotton and stored it in the W warehouse, which issued a negotiable receipt to “A or order.”  A sold the receipt to P, who did not suspect the theft, for $100,000, indorsing it by signing his name A.

Who gets the cotton?

Definition

P would be a holder b/c the document was indorsed by A in blank and delivered to P. 

P meets all the requirements of 7-502 (holder (in possession and bearer instrument), negotiation (indorsed and delivered), purchased, for value, in good faith, without notice, BUT the transfer was not done in A’s regular course of business.  Because the transfer to P was not in A’s regular course of business (A is a truck driver not in the business of selling cotton) the document is not duly negotiated. 

Further, under 7-503, a document of title confers no right in goods against O, who had a legal interest in the goods and did not deliver or entrust the goods or any document of title to the bailor with power to dispose of the goods.  So, O did not defeat his title under 7-503.  Since the document has not been duly negotiated, b/c it did not occur in regular course of business: So don’t have to go to 7-503 b/c 502 is not met.

Term
What result if A had negotiated the receipt to a friend B, who is in the cotton business, who had negotiated it to P?  
Definition

(a)     When you look at the regular course of business element, you focus on P’s immediate transferor.  Thus, the requirements of due negotiation have been met. P meets all the requirements of 7-502 (holder (in possession and bearer instrument), negotiation (indorsed and delivered), purchased, for value, in good faith, without notice, and was done in the regular course of business. Under 7-503, however, O’s conduct is not blameworthy because O did not give actual or apparent authority to the truck driver to sell the goods.  Driver only had the limited authority to take the cotton to the ginhouse for processing; not storing.  Note: we examine the authority of the bailor/truck driver.

 

Term
Problem 17: O owned cotton worth $100,000.  O placed it in storage with A, who both stores cotton and buys and sells it.  A wrongfully delivered the cotton to the W warehouse, which issued a negotiable warehouse receipt to “A or order.”  A sold the receipt to P who did not suspect A’s wrongdoing, for $100,000, indorsing it by signing “A”.  Who gets the cotton?  
Definition

?  O loses the cotton because he entrusted the goods to A with authority to store (thus, O’s conduct was to place cotton into the stream of commerce).  Moreover, P met all of the elements of due negotiation. P meets all the requirements of 7-502 (holder (in possession and bearer instrument), negotiation (indorsed and delivered), purchased, for value, in good faith, without notice, and in the regular course of A’s business.  We look only at the transaction between A and P.  Remember, generally the title of a purchaser by due negotiation prevails over almost any interest in the goods which existed prior to the procurement of the document of title if the possession of the goods by the person obtaining the document derived from any action by the prior claimant which introduced the goods into the stream of commerce.  Was there an entrustment of the goods from O to bailor (A)? Yes, b/c O delivered goods directly to A, and according to 7-503(a)(1)(A) O did deliver and entrust the goods with A with actual authority to store the goods; therefore, O’s title could legitimately be defeated and O cannot do anything about it.  Then also look at types of power: ship, sell, store and nature of the power of disposition. O gave the goods to A and conferred some type of power to A to dispose of the goods. What is the basis of that right? 2-403(2) gives merchant rights to pass title in the ordinary course. If O delivered goods to one who deals in the goods of like kind is like entrusting to merchant who can then sell them. 7-503(b) would have been satisfied that O entrusted goods to bailor w/ “power of disposition under 2-403” (“any entrusting of goods to a merchant that deals in goods of that kind gives the merchant power to transfer all of the entruster’s rights to the goods and to transfer the goods free of any interest of the entruster to a buyer in the ordinary course of business.”).  

Term
Lineburger Bros v. Hodge.  
Definition

Lineburger Bros. grew and ginned cotton.  The cotton was stolen by Carr from the gin and Carr carried the cotton to the defendant warehouse, and, after weighing, the warehouse had receipts issued in three fictitious names and delivered to him.  Carr took the receipts to nearby towns and sold the cotton to three individuals.  The purchasers gave their checks to Carr who procured payment by endorsing them respectively in the names of the three fictitious persons.  The three individuals filed suit against the warehouse praying for the cotton or their money back.  The original owners, Lineburger Bros, intervened but their petition for title was dismissed. Trial court further awarded title to the purchasers of the warehouse receipt recipients who had purchased for value.  The warehouse filed a cross appeal urging that a decree be awarded against the warehouse for the value of the cotton. An owner of cotton may not be divested of title by a trespasser or a thief.  The buyer must beware lest he is buying receipts which have been fraudulently obtained or cotton which has been stolen.  Here, one of two innocent persons must suffer the loss.  The thief has stole or fraudulently obtained property from someone.  We hold that the unlawful act was committed against the owners and that the title to the cotton remains in them.  Caveat emptor applies. Thus, owner may not be divested of title by thief (who was not entrusted w/ goods). 7-503. Three reasons when 7-503 punishes owner: (1) Owner stores goods; (2) Owner authorizes to ship, sell, or store; and (3) Owner gives goods to someone w/ the power of disposition.

Term
Regular Course.”  
Definition

UCC 7-501(4) requires that the document have been “duly negotiated” and provides that due negotiation may be negated by showing “that the negotiation is not in the regular course of business and financing.”  Comment 1 states “in order to effect a “due negotiation” the negotiation must be in the “regular course of business or financing” in order to transfer greater rights than those held by the person negotiating.  The foundation of the mercantile doctrine of good faith purchase for value has always been, as shown by the case situations, the furtherance and protection of the regular course of trade.  The reason for allowing a person, in bad faith or in error, to convey away rights which are not its own has from the beginning been to make possible the speedy handling of that great run of commercial transactions which are patently usual and normal.  

·         Comment 1: There are two aspects to the usual and normal course of mercantile dealings, namely, the person making the transfer and the nature of the transaction itself.  The first question that arises is:  Is the transferor a person with whom it is reasonable to deal as having full powers? The second question posed by the “regular course” qualification is:  Is the transaction one which is normally proper to pass full rights without inquiry, even though the transferor itself may not have such rights to pass, and even though the transferor may be acting in breach of duty?  In raising this question the “regular course” criterion has the further advantage of limiting, the effective wrongful disposition to transactions whose protection will really further trade.  Obviously, the snapping up of goods for quick resale at a price suspiciously below the market deserves no protection as a matter of policy:  it is also clearly outside the range of regular course. Any notice on the document sufficient to put a merchant on inquiry as to the “regular course” quality of the transaction will frustrate “due negotiation.”  Thus irregularity of the document or unexplained staleness of a bill of lading may appropriately be recognized as negating a negotiation in “regular course.”

·         A pre-existing claim constitutes value, and “due negotiation” does not require new value. A usual and ordinary transaction in which documents are received as security for credit previously extended may be in “regular course,” even though there is a demand for additional collateral b/c the creditor deems himself insecure. Where a money debt is paid in commodity paper, any question of “regular course” disappears, as the case is explicitly excepted from “due negotiation.” 

Term

 

CHAPTER 2: FREEDOM FROM DEFENSES; OTHER CONSEQUENCES

General Rule stated in Restatement (Second) of Contracts § 336(1):

 

Definition

 

By an assignment the assignee acquires a right against the obligor only to the extent that the obligor is under a duty to the assignor; and if the right of the assignor would be voidable by the obligor or unenforceable against him if no assignment had been made, the right of the assignee is subject to the infirmity. 

 

Term
The general rule can also be found in 9-404 which states
Definition

 , “unless an account debtor has made an enforceable agreement not to assert defenses or claims, and subject to subsections (b) through (e), the rights of an assignee are subject to: (1) all terms of the agreement between the account debtor and assignor and any defense or claim in recoupment (recover) arising from the transaction that gave rise to the contract (with the assignor); and (2) any other defense or claim of the account debtor against the assignor which accrues before the account debtor receives a notification of the assignment authenticated by the assignor or the assignee.”

  

Term
9-403(b) states 
Definition

“an agreement between an account debtor (person who owes the money) and an assignor (the one making the assignment) not to assert against an assignee any claim or defense that the account debtor may have against the assignor is enforceable by an assignee that takes an assignment: (1) for value, (2) in good faith, (3) without notice of a claim of a property or possessory right to the property assigned; and (4) without notice of a defense or claim in recoupment of the type that may be asserted against a person entitled to enforce a negotiable instrument under Section 3-305(a).

Term
9-403(c) states 
Definition
states that “subsection (b) does not apply to defenses of a type that may be asserted against a holder in due course of a negotiable instrument under section 3-305(b).
Term
3-305(a) states 
Definition

“the right to enforce the obligation of a party to pay an instrument is subject to the following: (1) a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction, which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings.”

Term
3-305(b) states 
Definition

that “the right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to defenses of the obligor stated in subsection (a)(1).  

Term
9-102(3) defines 
Definition
“account debtor” as “a person obligated on an account, chattel paper, or general intangible.  The term does not include persons obligated to pay a negotiable instrument.”  
Term

As an example, buyer would pay for a painting 30 days after delivery and shortly after discovers that the painting was the fake. At the end of the 30 day period, 

 

 

Draw this.

 


Definition

Seller (assignor) ß------------------------------------------Buyer (obligor)

I

I

I

I

Purchaser (Assigneee) (holder if they have negotiable instrument)

Term

SECTION I:  NEGOTIABLE INSTRUMENTS

Real defenses can always be raised against a holder in due course; but not personal defenses or claims of recoupment.

 

Problem 1: By fraudulent representations B sold A a defective machine for A’s factory for $100,000, payable in 30 days.  B assigned the right to payment to the C finance company, which did not know of the fraud and paid B $100,000 less a discount.  On discovery of the fraud, A tendered the machine back to C and refused to pay anything.

Can C recover the $100,000 from A?

Definition

(a)     Does Art 3 apply? No, b/c article 3 focuses on negotiable instruments and we are not dealing w/ an instrument here.  Therefore, because it is a simple K assignment, C is subject to A’s defenses.  Note:  with real fraud you look to the knowledge of the individual.  With any other type of fraud that does not relate to knowledge of the terms of the instrument, you have personal defenses.  The general rule is stated in Restatement (Second) of Contracts § 336(1):  By an assignment the assignee acquires a right against the obligor only to the extent that the obligor is under a duty to the assignor; and if the right of the assignor would be voidable by the obligor or unenforceable against him if no assignment had been made, the right of the assignee is subject to the infirmity.  Therefore if A had a claim against B, such that his right is voidable to enforce the instrument b/c of the fraud, then the right of C is subject to the same infirmity. 

Rather, 9-404(a) applies to this situation.  When we have an assignment, unless an account debtor has made an enforceable agreement not to assert defenses or claims, the rights of an assignee (C) are subject to: (1) all terms of the agreement between the account debtor and assignor and any defense or claim in recoupment arising from the transaction that gave rise to the contract.  9-404(a) provides that an assignee generally takes an assignment subject to defenses and claims of an account debtor.  Under subsection (a)(1) if the account debtor’s defenses on an assigned claim arise from the transaction that gave rise to the K with the assignor, it makes no difference whether the defense or claim accrues before or after the account debtor is notified of the assignment.

Term
What is the nature of the defense available to A? 
Definition

Fraud and misrepresentation. First Issue: We are dealing with a right to payment arising out of an ordinary contract b/w A and B. In this example, when B assigned his right to payment to C, C became the assignee, B is the assignor and A is the obligor. Under ordinary K principles, when B assigns his rights to C, C then “stands in the shoes” of B gaining not only all of B’s K rights, but he is also subject to all defenses that A could bring against B, such as the defense of fraud that A could raise here.  This, of course, is subject to a “waiver of defense” clause had such a clause been place in the original K b/w A and B.  According to 9-403(b) “an agreement between an account debtor and an assignor not to assert against an assignee any claim or defense that the account debtor may have against the assignor is enforceable by an assignee that takes for assignment: for value, in good faith, and without notice.  Subsection (b), however, does not apply to the real defenses in 3-305(b).  However, from the facts, we aren’t given any indication that such a clause is in effect. Thus, C took rights to payment subject to the fraud defenses that A could raise; and under ordinary K principles, if A can show fraud in the inducement, C will be barred from recovery. 

Term
What result if the contract between A and B contained a waiver of defense clause—an agreement that A will not assert against an assignee any claim or defense that A may have against B?  
Definition

(a)     As noted above, a “waiver of defense” clause will be given effect in this case. C, again, stands in the shoes of B when he becomes the assignee; meaning, he takes B’s rights to payment as well as becomes subject to all defenses that A could raise against B. Under common law K principles, a waiver of defense clause forfeits A’s right to bring a defense of fraud against the assignor, and consequentially, the subsequent assignee. In such a case as this, A is barred from recovery because this type of fraud is not “fraud in the factum,” a real defense, but this type of fraud is a personal defense.

9-403(b) states that “an agreement between an account debtor and an assignor not to assert against an assignee any claim or defense that the account debtor may have against the assignor is enforceable by an assignee that takes an assignment: for value, in good faith, and without notice of a claim or possessory right to the property assigned, and without notice of a defense or claim in recoupment of the type that may be asserted against a person entitled to enforce a negotiable instrument.”  Subsection (c) states that “subsection (b) does not apply to defenses of a type that may be asserted against a holder in due course of a negotiable instrument under 3-305(b).”  3-305(b) states “the right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to defenses of the obligor stated in subsection (a)(1) (real defenses: infancy of the obligor to the extent it is a defense to a simple contract, duress, lack of legal capacity, illegality of the transaction, fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or discharge of the obligor in insolvency proceedings.) 

If there is a waiver of defense clause, then A can’t assert the defense against C.  However, under 9-403(b) (4), with a waiver an assignee is put in the same position as a holder.  Thus, if A had real defense to assert, the real defense could be asserted because real defenses cannot be cut-off.  But note, the assignee is actually in a better position than a holder, because a mere promise will suffice for value whereas with a holder in a negotiable instrument a mere promise is not sufficient.

§  An assignee can cut off the same defenses that the HIDC would have been able to cut off. Can cut off all personal defenses and claims in recoupment, but not the real defenses. But, only where there is a waiver of defense clause.

§  What definition of value would apply to 1(b)? Look at 9-403, which makes you look at 3-303. If you are a HIDC, you are subject to value definition under 3-303. Is promise to pay considered value? No, this is not value under 3-303. Under old law, look at 1-204 for the assignee. With an assignee, a mere promise would constitute value.

                                                                i.      Comment: Subsection (b) validates an account debtor’s agreement only if the assignee takes an assignment for value, in good faith, and without notice of conflicting claims to the property assigned or of certain claims or defenses of the account debtor.  This section is designed to put the assignee in a position that is no better and no worse than that of a holder in due course of a negotiable instrument under Article 3 (3-302: holder takes the instrument for value, in good faith, without notice).  

Term
Would a promise by C to pay B $100k less a discount be “value” under 9-403?
Definition

9-403 supersedes former 9-206 (former 206 didn’t define value, so the applicable definition of value under this section would have been in 1-204. Under that, a promise even if you hadn’t performed, would constitute value.)  There is a case to be made that if you are focusing on the definition of value under then 9-206, the argument could be made that formerly the assignee was given more favorable treatment than a holder in due course. Why? Under 3-303 a promise to pay where you have not performed is not “value.” If you are an assignee under the old law, a promise to pay would constitute value. In this case, he is given the same rights as a holder in due course under 3-303. But, if this were a negotiable instrument case, the holder would not be in due course.  So, this question addresses this.  Former 206 attempted to put the assignee roughly the same position as the holder in due course, but actually gave him greater protection. 9-403 corrects this problem.  

Former 9-206 essentially puts the assignee in the same position as a holder in due course. Under 9-403, the assignee who takes the assignment for value, in good faith, and without notice can cut off personal defenses and claims in recoupment. But the “value” issue needs to be addressed. Under the old law 1-204’s definition of value a mere promise would constitute value. But, under the new law, 3-303 value controls.  In short, the old law gave better treatment to assignee than holder in due course. But this has been resolved today. To be an assignee, you have to provide value – but value under 3-303 does not constitute a promise of performance. 

Term

Problem 2: By fraudulent representations, B sold A a defective machine for A’s factory for $100,000, payable in 30 days.  In connection with the sale, A executed a negotiable promissory note, promising “to pay to the order of B, $100,000” in 30 days.  B assigned the right to payment and negotiated the note to the C finance company, by indorsing it “pay to the order of C, (signed) B.”  C did not suspect the fraud and paid B $100,000 less a discount.

Definition

(a)     On discovery of the fraud, A tendered the machine back to C and refused to pay anything.  Can C recover the $100,000 from A?  Here, as opposed to the preceding question, we are dealing with an instrument and thus, Article 3 is controlling.  The first issue then under an Art 3 analysis is whether C can be considered a “holder in due course” having rights to payment under the instrument terms. Under 3-302, a holder in due course must satisfy the following elements: instrument (promissory note), holder (negotiation of order instrument, indorsement, delivery), value (note: 3-303 defines), good faith, and without notice [that he is subject to any of the defenses in 3-305(a). The elements are satisfied.  The next issue is whether C took the instrument subject to the “real” defenses of A, or if A only has “personal” defenses which C is not subject to.  Under 3-305 an assignee’s right to enforce the obligation on an instrument is subject to the real defenses of infancy, duress, lack of legal capacity, illegality of the transaction, and fraud in the factum.  “Real” fraud would allow A to withhold payment against a holder in due course. Real fraud is “fraud in execution” and the common illustration is that of the maker who is tricked into signing a note in the belief that it is merely a receipt or some other document.  The theory of the defense is that the signature on the instrument is ineffective b/c the signer did not intend to sign such an instrument at all.  Under this provision, the defense extends to an instrument signed with knowledge that it is a negotiable instrument, but without knowledge of its essential terms.  The party must not only have been in ignorance, but must also have had no reasonable opportunity to obtain knowledge.  In this case, A intended to sign the instrument, knew what he was signing, and had knowledge of the essential terms of the document.  There are no facts that show that A was without knowledge (constructive or actual) of either and thus A is left only with personal defenses.

·         First determine if he is a holder in due course. Why? 3-305(b). Second determine if this is a real or personal defense. Note elements: knowledge of character/nature (instrument) and terms (payments). Knowledge is either actual or constructive (i.e. sounding in negligence)

Term
(b) On discovery of the fraud, A kept the machine, but because of its defects made $30,000 in repairs, and refused to pay more than $70,000.  Can C recover the full $100,000 from A?
Definition

Yes, C takes only subject to real defenses.  3-305(b) states that “the right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to” real defenses…but is not subject to…claims in recoupment stated in subsection (a)(3) against a person other than the holder.”  Comment states: Buyer is obliged to pay the price of the equipment which is represented by the note. But, buyer may have a claim against seller for breach of warranty.  If buyer has a warranty claim, the claim may be asserted against seller as a counterclaim or as a claim in recoupment to reduce the amount owing on the note.  It is not relevant whether seller is or is not a holder in due course of the note or whether Seller knew or had notice of the warranty claim.  It is obvious that the holder in due course doctrine cannot be used to all seller to cut off a warranty claim that buyer has against seller.  Subsection (b) specifically covers this point by stating that a holder in due course is not subject to a “claim in recoupment…against a person other than the holder.”  Claims in recoupment, like personal defenses are not applicable as against a holder in due course. Put another way, C being a holder in due course, cuts off all claims of recoupment. However, if C took with notice, then he wouldn’t be a holder in due course and would be subject to the recoupment defense. Note also, that A has a claim against B for breach of warranty. Claim in recoupment – claim of obligor against the assignor (not the assignee). What is it for? To compensate the obligor for expenses incurred. Any time you talk about the claim in recoupment it is against the original payee; thus, technically you can’t talk about a claim of recoupment against C. Why? Because there was no contract b/w the two. 

Term

What are the Characteristics of Negotiable Instruments—3-104? 

Definition

Unconditional promise or order to pay a fixed amt of money w/ or w/o interest or other charges described in the promise or order

  1. Promise/Order
  2. Payment of money to: Bearer or Order to Identified person 3-109
    1. A promise or order is payable to bearer if it (i) states that it is payable to bearer or to the order of bearer or otherwise indicates that the person in possession of the promise or order is entitled to payment; (ii) does not state a payee; or (iii) states that it is payable to the order of cash or otherwise indicates it is not payable to an identified person.
    2. A promise or order that is not payable to bearer is payable to order if it is payable (i) to the order of an identified person.
  3. Promise must be unconditional 3-106
    1. Generally a promise will not be unconditional if it states a condition to payment, that the promise or order is subject to or governed by another record, or that rights or obligations with respect to the promise are stated in another record.
    2. The purpose of neg inst. To pass freely in commerce; the imposition of a condition makes it difficult – subsequent transferees will not know if the condition has been satisfied and will therefore be insecure. You should never impose a condition.
    3. A promise or order is not made conditional (i) by reference to another record for a statement of rights with respect to collateral, prepayment, or acceleration, or (i) because payment is limited to resort to a particular fund or source. 
  4. To pay a fixed sum of money
    1. Under section 3-104(a) the requirement of a “fixed amount” applies only to principal. 3-112 states that unless otherwise provided in the instrument, an instrument is not payable with interest, but if an instrument does call for interest to be paid—does not affect the character of the instrument. (3-112)
  5. Contain no other promises, orders, or obligations
    1. A single purpose/objective/goal expressed in the instrument. (i.e. I promise to pay $20 & clean up your house.)
    2. Reference to another doc for rights related to the collateral will not defeat the use of the document as a negotiable instrument (3-106(b)).
  6. Sum should be “payable on demand” or at “a definite time” 3-108
    1. A promise or order is payable on demand if it (i) states that it is payable on demand or at sight, or otherwise indicates that it is payable at the will of the holder, or (ii) does not state any time of payment.  If you note that it is payable on demand or if you left it blank.
    2. A promise or order is payable at a definite time if it is payable on elapse of a definite time period of time after sight or acceptance or at a fixed date, subject to rights of prepayment, acceleration, and extension.  

Term

Would the answer to the preceding problem be different if the body of the promissory note read as follows:  “For value received, I promise to pay to the order of B, $100,000 payable $50,000 in six months after date and $50,000 in 12 months after date, with interest payable monthly at 3% over Chase Manhattan Prime to be adjusted monthly, with the privilege of discharging this note by payment of principal less a discount of 5% w/i 30 days from the date hereof.  The entire principal of this note shall become due and payable on demand should the holder at any time deem itself insecure.  This note is secured by a security agreement of the same date to which reference is made as to rights in collateral.”

Definition

Go through the Elements:

1. Promise/Order

There are two choices for something to come in as a negotiable instrument: (a) promise (i.e. promissory note) or (b) order (i.e. check). This piece of paper is not a check but a promissory note.

2. Payable to Bearer/Order

This is an order document.

3. Unconditional

3-106(b)—a reference to another note that describes rights doesn’t render this “conditional.”

4. Fixed Sum (see §3-112; 3-104)

You can still calculate w/ certainty at any time the amount to be paid. 

The issue of a discount wouldn’t be a problem either b/c you can still calculate

5. No other promise

6. Payable on Demand 

It is clear that the 6 major elements are satisfied and so this can be classified as a negotiable instrument/promissory note.

Term
First National v. Fazzari
Definition

: Fazzari signed promissory note thinking it was something else. Fazzari could not read or write but his family in the house at the time he signed the note. Fazzari discovered the fraud and told his bank and the Odessa bank not to accept the note and Odessa’s teller assured him that they would not honor the note. The note was presented and Odessa honored the note. Then Fazzari’s bank refused to pay Odessa for the note. Court found that Fazzari could not assert the real defense of fraud in factum b/c Fazzari was negligent in that he did not get his wife to read the instrument. However, the court found that eh bank was not a HIDC b/c it had notice of the fraud in the inducement. Bank pled the “Forgotten Notice Doctrine” (a lapse of memory and omission to look for the notice constitutes mere negligence which does not destroy the bank’s status as a HIDC) but the court said the bank gave Fazzari further assurances which took the case out the Forgotten Notice Doctrine. Because the bank was not a holder, it could not cut off Fazzari’s personal defenses.

  • Insolvency/ Bankruptcy Discharge: If an obligor files for bankruptcy, the bankruptcy is an automatic defense.

Term
3-305(a)(3): Comment 3: 
Definition

subsection (a)(3) is concerned with claims in recoupment which can be illustrated by the following example.  Buyer issues a note to the order of Seller in exchange fro a promise of seller to deliver specified equipment. If seller fails to deliver the equipment or delivers equipment that is rightfully rejected, buyer has a defense to the note b/c the performance that was the consideration for the note was not rendered (3-303(b)).  That defense can always be asserted against Seller.  

Term
But suppose seller delivered the promised equipment and it was accepted by buyer.  The equipment, however, was defective.  Buyer retained the equipment and incurred expenses with respect to its repair.  
Definition

In this case, buyer does not have a defense under 3-303(b).  Seller delivered the equipment and the equipment was accepted.  Under Article 2, buyer is obliged to pay the price of the equipment which is represented by the note.  But buyer may have a claim against seller for breach of warranty.  If buyer has a warranty claim, the claim may be asserted against seller as a counterclaim or as a claim in recoupment to reduce the amount owing on the note.  It is not relevant whether seller is or is not a holder in due course of the note or whether seller knew or had notice that buyer had the warranty claim. It is obvious that the holder in due course doctrine cannot be used to allow seller to cut off a warranty claim that buyer has against seller. Subsection (b) specifically covers this point by stating that a holder in due course is not subject to a “claim in recoupment…against a person other than the holder.”  

Term
Suppose seller negotiates the note to holder.
Definition

.  If holder had notice of buyer’s warranty claim at the time the note was negotiated to holder, holder is not a holder in due course (3-302) and buyer may assert the claim against holder (3-305(a)(3)) but only as a claim in recoupment, i.e., to reduce the amount owed on the note.  If holder had no notice of buyer’s claim and otherwise qualifies as a holder in due course, buyer may not assert the claim against holder.  

Term

Defenses

 

UCC 3-305 sets out the defenses which are available. Chapter 8 of the E&E covers defenses.

Definition

 

The holder in due process is protected against personal defenses. However, the holder in due process is not protected from real defenses such as those related to the type of paper. 

Term

SECTION 2:  DOCUMENTS OF TITLE

Problem 4: B fraudulently induced the A warehouse to issue a negotiable warehouse receipt for $100,000 worth of cotton that was not delivered to it.  B duly negotiated the receipt to C, who did not suspect the fraud and paid B $100,000.

What are C’s rights against A?  

Definition

(a)     C can recover from A because A relied on C’s description of the goods.  Under 7-203 “a party to or purchaser for value in good faith of a document of title…that relies upon the description of goods in the document may recover from the issuer damages caused by the misreceipt or misdescription of the goods”—unless, the document conspicuously indicates in a disclaimer that the issuer does not know whether all or part of the goods in fact were received or conform to the description.”  A will try to claim that it does not have to pay because the goods were not received.  Because A did not disclaim, A will be liable to C.  As to C’s recourse against B—7-507 states that “if a person negotiates or delivers a document of title for value…unless otherwise agreed, the transferor, in addition to any warranty made in selling or leasing the goods, warrants to its immediate purchaser only that: (i) the document is genuine, (2) the transferor does not have knowledge of any fact that would impair the document’s validity or worth; and (3) the negotiation or delivery is rightful and fully effective with respect to the title to the document and the goods it represents.”  C may bring a breach of warranty on negotiation or Delivery of Document of Title.  Would it make a difference if the warehouse receipt had not been indorsed?  When the problem relates to the purchaser, negotiation and indorsement are irrelevant.  7-203 liability only requires that the party be a purchaser for value in good faith and rely on the description of the goods when taking the document.  It doesn’t require a due negotiation

Term
What result if the receipt had covered barrels of whiskey instead of bales of cotton and the barrels had contained water?
Definition

 

(a)     Under 2-703, the purchaser for value in good faith of a document of title that relies upon the description of the goods in the document may recover from the issuer damages caused by the mis-description of the goods.  This qualifies as a mis-description and the bailee will be liable.  The bailee could have disclaimed his liability by placing language that “contents, condition, or quantity unknown” or “said to contain” on the receipt.  But note, if, however, the bailee has knowledge of the error, he will still be liable.

 

Term
What result if A had received the cotton from B but had lost it in some way?  
Definition

(a)     Under 7-204(a) a “warehouse is liable for damages for loss of or injury to the goods caused by its failure to exercise care with regard to the goods that a reasonably careful person would exercise under similar circumstances.  The bailee will be liable under 7-204 if he failed to use due care that a reasonable person would have used.  If the bailee/A would have limited its liability, the amount of damages owed could have been reduced.  7-204(b) states that “damages may be limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in case of loss or damage beyond which the warehouse is not liable.”  Answer affected by language in these forms pg. 73-75 – limitations clause important to limit the value liable under negligence.

(Note:  Such a limitation is not effective under 7-204 with respect to the warehouse’s liability for conversion to its own use.)

Term

I.C.C. Metals, Inc. v. Municipal Warehouse Co.

Definition

                                                              i.      Goods taken to warehouse, no disclosure of the value of the goods to the warehouse. When bailor demands return of the goods, the bailee couldn’t find them. Complaint filed for conversion.

                                                            ii.      Warehouse is not an insurer of goods see pg 110.

                                                          iii.      Why does law deny the bailee the right to rely on contractual limitation in instances of conversion? B/c would otherwise encourage wrongdoing. Warehouse would gain the difference b/w the actual value and the contractual liability.

                                                          iv.      Imposes burden of proof on the bailee for negligence: warehouse has to explain why goods cannot be located. Then burden shifts and the bailor has to show fault on part of the bailee. If cannot show fault then will not recover anything. If bailee does not come forth w/ explanation, then presumption of negligence and will have to pay full value.

                                                            v.      Why burden on bailee? b/c in better position to know what happened.

                                                          vi.      This court applied the same standard of care as used in negligence to the conversion claim. Justified its position for same reason as requiring the bailee to come forward to explain b/c the bailee has taken the goods for its own use and it is even less likely that the bailor could ever find out the real facts. Here there was no credible evidence nor was there explanation for the loss.

Term
Another consequence of the negotiability of commercial paper is that the party seeking to enforce such an instrument has the advantage of 
Definition

pleading and proof. These consequences are:

                                                               i.      Consideration: Every negotiable instrument is presumed to have been issued for consideration, so that even when the instrument remains in the hands of the original payee, the burden is shifted to the obligor on the instrument to show that there was no consideration.

                                                             ii.      Discharge: The issue under discharge is whether the obligor must pay attention to the whereabouts of the writing that evidenced the obligation. An obligor on an ordinary contract right can safely deal w/ the original obligee in discharging the obligation, even if the right is evidenced by a writing, unless the obligor has received notice of an assignment.  Restatement (Second) of Contracts states:  “notwithstanding an assignment, the assignor retains his power to discharge or modify the duty of the obligor to the extent that the obligor performs or otherwise gives value until but not after the obligor receives notification that the right has been assigned and that performance is to be rendered to the assignee. The obligor of a negotiable instrument or document of title, however, cannot safely deal with the original obligee w/o paying attention to the writing that embodies the obligation.

Term
The outline looks at two issues under discharge. Explain what they are and what they mean...
Definition

1.       Assignment: Obligor of an ordinary K can deal w/ the original oblige. 9-406(a). Under the UCC, the obligor can discharge the K with the original obligee, until the obligee/assignor or assignee gives notice to the obligor that there has been an assignment.

2.       Negotiable Instruments: With a negotiable instrument, the obligor can’t safely deal w/ the original oblige w/o seeing the instrument. Under UCC 3-602, the obligor can discharge the instrument if: 1) payment comes from a party obliged to pay the instrument (obligor); and 2) payment is to a person entitle to enforce the instrument.

Term
Problem 5: B sold A a machine for A’s factory for $100,000, payable in 30 days.  B assigned the right to payment to the C finance company, which paid B $100,000 less a discount.  At the end of the 30 days, A, who did not know of the assignment, paid B $100,000.  Can C recover the $100,000 from A?
Definition

This question does not deal with a document of title or negotiable instrument.  Thus, it is simply a contractual assignment.  Because A did not know the assignment was made, A was entitled to pay B, the original obligee, until B informed A of the assignment.  It is really in C’s best interest to immediately notify A of the assignment.  A’s payment to B therefore discharges A’s payment obligation under the contract.  Under 9-406, “an account debtor on an account…may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.”  A can pay B at any time before being notified of the assignment.  Here you cannot say that A did not discharge his obligation—b/c he  had no notice.  A must have notice.  A delay on C’s part would adversely affect C’s interests.  Once the notification is given, C is protected under 9-406.  

Term
Problem 6: B sold A a machine for A’s factory for $100,000, payable in 30 days.  In connection with the sale, A executed a negotiable promissory note, promising to “pay to the order of B, $100,000 in 30 days.”  B assigned the right to payment and negotiated the note to the C finance company by indorsing it “pay to the order of C, (signed) B.”  At the end of the 30 days, A, who did not know of the assignment and negotiation, paid B $100,000.  Can C recover the $100,000 from A?
Definition

This question is dealing with a negotiable instrument.  The rule under 3-602 is that “an instrument is paid to the extent payment is made by or on behalf of a party obliged to pay the instrument, and to a person entitled to enforce the instrument.”  The obligor must pay the person entitled to enforce the instrument/note.  C received the note through due negotiation and is thus a HIDC.  C therefore became entitled to enforce the note, and if C does not receive payment, he can still enforce against A, even though A paid B.  The instrument still has an obligation to pay.  The instrument was paid by A to B at the time when C had the instrument.  In this case, C is entitled to enforce.  3-301 defines “person entitled to enforce” an instrument as the “holder of the instrument.”  As the debtor you need then to pay the holder of the instrument.  You need to ask to see the instrument to ensure that you pay the right person.  IF it is a negotiable instrument, the focus is on Article 3.  In order to be a holder, you must have the instrument in your possession.  The reasoning is that negotiable instruments are negotiable and can be transferred—always ask to see the instrument.  B could never be the holder b/c he doesn’t have possession of the instrument (1-201—holder means the person in possession).  Ask to see the persons ID and the negotiable instrument.  

Term

Problem 7: B, a dealer in cotton, deposited $100,000 worth of cotton with the A warehouse, which issued a negotiable warehouse receipt to B’s order.  B negotiated the receipt to C, who paid B $100,000.  Later, on demand by B, A redelivered the cotton to B.

(a) Is A liable to C? 

Definition

                                                               i.      Yes, because B not a holder of the warehouse receipt.  This problem deals with a document of title.  Under 7-403, “a bailee shall deliver the goods to a person entitled under a document of title;” therefore, the document of title must be looked at to determine who is the holder.  A did not look for the person entitled to the document under 7-403.  C is the holder and has the right to the cotton.  This involves a document of title and the rules are addressed in Articles 3 and 9, and article 7 is pertinent.  The person “entitled under a document of title” is the holder—7-102(a)(9) defines who comes in “person entitled under a document” and says he is the holder in the case of a negotiable document of title.    A needs to see the negotiable instrument and the persons ID.  A delivered the goods to a person not entitled under the document. Further, the bailee warehouse is not protected under 7-404 which provides “a bailee that in good faith has received goods and devliered or otherwise disposed of the goods according to the terms of the a document of title is not liable for the goods.”  Here, the warehouse did not act in good faith according to the terms of the document of title, so not protected under 7-404.  Under 7-502, “a holder to which a negotiable instrument of title has been duly negotiated acquires thereby: title to the document and title to the goods.”  Therefore, once the warehouse receipt was duly negotiated, only C had title to the goods.   

Term
(b) What result if the warehouse receipt had been a non-negotiable one, which was transferred (not negotiated) to C?  
Definition
According to 7-504(b), “in the case of a transfer of a non-negotiable document of title, until but not after the bailee receives notice of the transfer, the rights of the transferee may be defeated…as against the bailee, by good-faith dealings of the bailee with the transferor.”  If the document is non-negotiable, and the A warehouse has not been notified, C’s rights can be defeated by A under 7-504(b).  If, however, C notified A of transfer, then A can no longer deal with the original bailor.  C would then be entitled to enforce the document.  Difference between negotiable and non-negotiable document?  One can be transferred and the other cannot.  7-104(a) “a document of title is negotiable if by its terms the goods are to be delivered to bearer or to the order of a named person.”  Pg. 73—a negotiable document contains words saying “goods to be delivered to the order of ____.” Usually, a non-negotiable receipt says “deliver to ____.” 7-504(a) states that a transferee of a non-negotiable title “acquires the title and rights that its transferor had.” No issue of negotiation here.  7-504(b)(4) until notification is given to the bailee about the transfer, the rights of C will be defeated by the good-faith dealings of the bailee with the transferor.  Would it make a difference if C had notified A of the transfer before A’s re-delivery to B?  Yes.  Once C notifies A, A cannot deal with B under 7-504(b). 
Term
Would it make a difference if C had notified A of the transfer before A’s re-delivery to B?
Definition
Yes.  Once C notifies A, A cannot deal with B under 7-504(b). 
Term

“SPENT” INSTRUMENTS AND DOCUMENTS

Definition

General Rule stated in Restatement (Second) of Contracts § 336(1):  By an assignment the assignee acquires a right against the obligor only to the extent that the obligor is under a duty to the assignor; and if the right of the assignor would be voidable by the obligor or unenforceable against him if no assignment had been made, the right of the assignee is subject to the infirmity.

                *This rule is different for a negotiable instrument or document of title.

Term
Problem 8: B sold A a machine for A’s factory for $100,000, payable in 30 days.  Before the 30 days were up, A paid B $100,000, but left the written contract of sale in B’s hands w/o any notation on it.  B then assigned the right to payment and delivered the written contract to the C finance company, which paid B $100,000 less a discount w/o knowing of A’s payment to B.  At the end of the 30 days, A refused to pay C.  Can C recover the $100,000 from A?  
Definition

No, because a GFP who takes payment right cannot rely on writing as indication that the obligation has not been discharged.  This problem deals with the assignment of a contract right.  A is not obligated to pay C under 9-406 because under a K assignment, the assignee only receives the rights that the assignor had. 9-406(a) states that “an account debtor on an account…may discharge its obligation by paying the assignor until the account debtor receives a notification that the amount due has been assigned and that payment is to be made to the assignee.”  Restatement 336 states that “the assignee acquires a right against the obligor only to the extent that the obligor is under a duty to the assignor; and if the right of the assignor would be voidable by the obligor or unenforceable against him if no assignment had been made, the right of the assignee is subject to the infirmity.”  A can pay B at any time unless A receives notice that an assignment has been made by B.  Here, the assignment was not made until after A had already discharged his obligation. B had no rights under the K because A’s obligation was discharged.  C thus does not receive any rights under the assignment.  Use 9-406 when there is no negotiable instrument but a contract assignment.  No notation is required in a written K, as here.  

Term
Problem 9: B sold A a machine for A’s factory for $100,000 payable in 30 days.  In connection with the sale, A executed a negotiable promissory note, promising to “pay to the order of B $100,000” in 30 days.  Before the 30 days were up, A paid B $100,000 but left the written contract of sale and the promissory note in B’s hands w/o any notation on them.  B then assigned the right to payment, negotiated the note, and delivered both the written K and the note to the C finance company, which paid B $100,000 less a discount w/o knowing of A’s payment to B.  At the end of the 30 days, A refused to pay C.  Can C recover the $100,000 from A?  
Definition

?  Yes—under the promissory note.  The only way to discharge an obligation w/ a neg. inst. is by paying the holder of the instrument—ask to see the instrument and make a notation on the instrument.  Once A paid B, A should have made a notation on the instrument that the obligation was discharged.  By not doing so, B could re-negotiate.  Because C was a HIDC, C can make A pay.  3-601(b) states that a discharge is not effective against a third party, C, who has not received notice of the discharge of payment from A to B.  3-601 states, “Discharge of the obligation of a party is not effective against a person acquiring rights of a holder in due course of the instrument without notice of the discharge.”    A should have made a notation on the instrument to protect his interests under 3-601, thus giving C notice of the discharge (3-601(b)).  Under 3-602(a), “an instrument is paid to the extent payment is made by or on behalf of a party obliged to pay the instrument, and to a person entitled to enforce the instrument.”  Here, payment has not been made to C b/c he is entitled to enforce the instrument since he is a HIDC.  A is still obligated to pay the instrument until notification is placed on the instrument discharging the obligation.  (CB says 3-305 also applies?)

Term
A HOLDER IN DUE COURSE MUST SATISFY THE FOLLOWING UNDER 3-302
Definition

1.       Instrument: governed by Article 3, a negotiable instrument.

2.       Value: 3-303(a)(1): the instrument is issued or transferred for a promise of performance. Promise was to pay $100k.

3.       Notice: w/o notice of the theft.

4.       Good faith: honesty in fact and the observance of reasonable commercial standards of fair dealing. (1-201) P did not suspect anything.

5.       Holder: 1-201(21): a person in possession of neg. instrument that is payable either to bearer or order. P is in possession so P is a holder.

Term

B, a dealer in cotton, deposited $100,000 worth of cotton with the A warehouse, which issued a negotiable warehouse receipt to B’s order.  On demand by B, A redelivered the cotton to B but left the “spent” warehouse receipt in B’s hands w/o any notation on it.  B negotiated the receipt to C, who paid B $100,000 w/o knowing of the redelivery of the cotton to B.

(a) Is A liable to C?  

Definition

                                                               i.      Yes, because the bailee/A must deliver the goods entitled on the document.  The bailee is liable to any subsequent party to whom the document is negotiated if the bailee fails to discharge its obligation by making a notation on the document.  As long as the subsequent holder is a HIDC, the holder is entitled to enforce.  Under 7-403(a) “a bailee shall deliver the goods to a person entitled under a document of title.”  Here, the bailee must deliver to C, the person entitled under the document of title.  7-403(c) gives the A warehouse explicit instructions that “the bailee shall cancel the document or conspicuously indicate in the document the partial delivery or the bailee is liable to any person to which the document is duly negotiated.”  Under 7-502 when B negotiated the document to C, C became entitled to all the rights under the instrument—all the rights B originally had. 7-502 states that “a holder to which a negotiable document of title has been duly negotiated acquires title to the document and title to the goods.”  Therefore, when the title was negotiated to C, C became entitled to the goods.  

Term
(b) What result if the receipt had been a non-negotiable one, which was transferred (not negotiated) to C?  
Definition
We treat non-negotiable instruments as assignment cases.  Non-negotiable receipts are treated like contract cases—you are not able to negotiate the instrument, so rather than any requirement for notation, the requirement is to give notice of the assignment.  Thus, the only way the transferee can protect himself is to notify the bailee.  Under 7-504(b), “in the case of a non-negotiable document of title, until but not after the bailee receives notice of the transfer, the rights of the transferee may be defeated…as against the bailee, by good-faith dealings of the bailee with the transferor.”  C must give notice to protect her interest.  C loses because there was a good faith transaction after A gave the document back to B.  C should have notified the warehouse of the assignment.  A discharged his obligation to B, and that was his only obligation, b/c A had no notice of the assignment.  The real test is what obligation A owed B at the time of negotiation. 
Term

PART II:  PAYMENT TRANSACTIONS:  THE CHECK AND ITS SUBSTITUTES

3-103(5): Drawer: 

 

Definition

a person who signs or is identified in a draft as a person ordering payment.  

Term
Drawee:  
Definition

3-103(4): Drawee:  a person ordered in a draft to make payment—the institution, the Bank. 

Term
Depository Bank:  
Definition

4-105(2): Depository Bank:  First bank to take an item even though it is also the payor bank, unless the item is presented for immediate payment over the counter.  We should not assume this bank will always make the payment—only when the drawer of the check and the holder of the check bank at the same institution.  

Term
): Payor Bank
Definition

4-105(3): Payor Bank:  Bank that is the drawee of a draft. 

Term
Intermediary Bank:  
Definition

4-105(4): Intermediary Bank:  A bank to which an item is transferred in course of collection except the depository or payor bank. 

Term
Collecting Bank:
Definition

4-105(5): Collecting Bank:  A bank handling an item for collection except the payor bank.  

Term
Presenting Bank
Definition

4-105(6): Presenting Bank:  A bank presenting an item except a payor bank.  The last bank to handle the item before the payor bank. Literally presents the item to the payor bank. 

Term
A Personal Check:  When is it payable
Definition

?  3-108 states that it is either “payable on demand” or “payable at a definite time.”  To whom is it payable?  3-109 states that it is either payable to order or to bearer.  

Term
According to 3-104, negotiable instruments include
Definition
check, cashier’s check, teller’s check, traveler’s check, and certificate of deposit.  
Term

Regulation CC § 229.12:  Availability Schedule

Definition

(a)     Local checks—“A depository bank shall make funds deposited in an account by a check available for withdrawal not later than the second business day following the banking day on which funds are deposited, in the case of a local check.”

(b)     Nonlocal checks—“A depositary bank shall make funds deposited in an account by a check available for withdrawal not later than the fifth business day following the banking day on which funds are deposited in the case of a non-local check. 

Term

Regulation CC § 229.10:  Cash Deposits

Definition
(1)           A bank shall make funds deposited in an account by cash available for withdrawal not later than the business day after the banking day on which the cash is deposited, if the deposit is made in person to an employee of the depositary bank
Term

Regulation CC § 229.30:  Paying Bank’s Responsibility for Return of Checks

Definition

(a)     If a paying bank determines not to pay a check, it shall return the check in an expeditious manner as provided in either paragraph (a)(1) or (a)(2) of this section.”

1)       Two-day/Four-day Test.  A paying bank returns a check in an expeditious manner if it sends the returned check in a manner such that the check would normally be received by the depositary bank not later than 4 pm of—

                                                                i.      The second business day following the banking day on which the check was presented to the paying bank, if the paying bank is located in the same check processing region as the depositary bank; or

                                                               ii.      The fourth business day following the banking day on which the check was presented to the paying bank, if the paying bank is not located in the same check processing region as the depositary bank.

2)       Forward Collection Test.  A paying bank also returns a check in an expeditious manner if it sends the returned check in a manner that a similarly situated bank would normally handle a check—

                                                                i.      Of similar amount as the returned check;

                                                               ii.      Drawn on the depositary bank; and

                                                              iii.      Deposited for forward collection in the similarly situated bank by noon on the banking day following the banking day on which the check was presented to the paying bank. 

Term
Three major risks involved any time you issue a check as a medium for payment: an 
Definition
an item may be drawn on insufficient funds, after the check is issued the drawer may change their mind and stop payment, and the item may be forged (where the drawer’s signature was not authorized) or altered (the amount to be paid may have been changed. 
Term

Insufficient Funds: 3 issues: 

 

Definition

rights of the drawer against its (payor) bank, rights of the holder against the same bank, and claims by the holder against the drawer/parties who did not issue the check but endorsed the check after it was issued.

Term
4-402(b):  
Definition

“A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item.  Liability is limited to actual damages proved and may include damages for arrest or prosecution of the customer or other consequential damages.”  

Term
4-402(a) defines wrongful dishonor:  
Definition
:  “a payor bank wrongfully dishonors an item that is properly payable, but a bank may dishonor an item that would create an overdraft unless it has agreed to pay the overdraft.” Stop payment order is not a wrongful dishonor.  
Term
4-303(b) states that
Definition

“items may be accepted, paid, certified, or charged to the indicated account in any order.”  4-303 allows banks to pay items in any order.  

Term
4-402(c) states that
Definition

“a payor bank’s determination of the customer’s account balance on which a decision to dishonor for insufficiency of available funds is based may be made at any time between the time the item is received by the payor bank and the time that the payor bank returns the item or gives notice in lieu of return, and no more than one determination need be made.”  The bank’s duty is to conduct an examination at the time it receives the item (4-402(c)).  

Term
4-104(5) 
Definition

“A “customer” is a person having an account with a bank or for whom a bank has agreed to collect items, including a bank that maintains an account at another bank.”  Broad definition.  

Term

SECTON 1:  LIABILITY ON DISHONOR

Problem 1: After drawing the Empire check, Stacey Smith stops payment on it, using the form on p. 222 infra, at a time when Empire has a balance of $40,000, and withdraws all but $10,000 from the account.  When Quaker presents the check, the Bank of NY dishonors it, indicating on the return item stamp “insufficient funds.”  A criminal proceeding is instituted against Smith under a penal statute making it a crime to draw a check with knowledge that sufficient funds are not on deposit.  After Smith’s arrest and release on bail, the information is dismissed.  Smith sues the Bank of New York alleging the above facts and claiming damages for harm to business reputation and credit and for legal expenses in connection with the criminal charges.  On the Bank of New York’s demurrer to the complaint, what decision? (Consider whether Smith was a “customer” and whether there was a “wrongful dishonor.”)  What issues resist in regard to Stacy as a customer?

Definition

1.       Issues about Stacy as a customer:  Section 4-402 has been construed to preclude an action for wrongful dishonor by a plaintiff other than the bank’s customer.  4-402 states that “a payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item.”  The first issue is whether Stacy is a “customer” of the bank because she issued the check on behalf of the corporation.   4-403 states that “a customer or any person authorized to draw on the account may stop payment of any item drawn on the customer’s account.”  Stacy did stop payment on the account, and therefore she could be either a “customer” or simply “a person authorized to draw on the account.”  4-104(a)(5) defines customer as “a person having an account with a bank or for whom a bank has agreed to collect items, including a bank that maintains an account at another bank.”  Stacy, though, does not have an account with the bank, but Empire does, and the bank has agreed to collect items for Empire, not Stacy.  Really it turns on whether a court would use a narrow or broad interpretation of the word “customer.” “Reasonably foreseeable” is the standard. If it is reasonably foreseeable that she would be harmed by the wrongful dishonor, then under 4-402, she can hold the bank liable. 

Moreover, because she suffered individual harm, i.e., arrested, she can sue in her individual capacity.  4-402(b) provides for damages to a customer, including actual damages proved and damages for arrest and prosecution of the customer.” 

But also make a case based upon the dissenting opinion:  the corporation really exists separately as a corporate entity and the corporation is not undercapitalized.  Stacey and the corporation are not one and the same. There is no personal guaranty to pay loans here as in Parrett—no personal guarantee, so argue Parrett doesn’t apply. Argue Stacy would not be a customer under 4-402. 

As a general rule a shareholder may not bring an action in his or her own name to recover for wrongs done to the corporation or its property.  The well-recognized exception is that if the SH properly establishes an individual cause of action b/c the harm done to the corporation also damaged the SH in his or her individual capacity, rather than as a SH, such individual action may be maintained.  The SH must demonstrate their was a special duty, such as a contractual duty, between the wrongdoer and the SH or that the SH suffered an injury separate and distinct from that suffered by other SHs. In terms of the SH, there must be a special duty owed by the bank to the SH.  The facts do not disclose any special duty. 

Alternative argument: 1-103: “Unless displaced by the particular provisions of the UCC, the principles of law and equity”—common law—applies.  Stacy, even as a non-customer could bring an action against the bank.  First, we must show that the common law cases have NOT been displaced.  On the one hand argue, those common law cases have NOT been displaced and are relevant.  On the other hand, argue displacement based on captions.  

Term
Same facts as preceding what issues exist about wrongful dishonor claim?
Definition

4-402(a) was not properly payable b/c of the order to stop payment—but the bank made a notation “insufficiency of funds.”  The action was really for “rightful dishonor.”  No claim for this under 4-402 b/c it only deals with “wrongful dishonor.”  So, Stacy should try to bring a claim under common law principles for defamation: 1-103 defamation argument.  First, see whether common law cause of action has been displaced.  Argue yes/no according to caption headings (1-107).  4-402 Comment 5:  section 4-402 should not be interpreted to displace the cause of action that exists at common law.  No displacement of common law action by non-customer.  No wrongful dishonor b/c Stacy Smith authorized the “stop payment” order.  The bank honored her wishes.  Not a wrongful dishonor but the item is improperly payable.  The bank was well within its rights NOT to pay. 

Term
Would it be advisable for the bank to check “refer to maker” on all checks dishonored?
Definition

If the bank makes the statement “Refer to Maker” it can avoid wrongful dishonor liability because the reason given is inconsistent with dishonor.  However, CC 229.30(d) requires a payor bank “returning a check” to “clearly indicate on the front of the check that it is a returned check and the reason for return.”  Comment 30(d) says that a reason such as “refer to maker” is permissible in appropriate cases.”  {IS THIS AN APPROPRIATE CIRCUMSTANCE?} “Refer to maker” is an acceptable reason for returning the check.  Liability kicks in when there is wrongful dishonor under 4-402, so if in a given case you can state that a bank has NOT wrongfully dishonored a check—then the bank avoids liability.  3-505 defines dishonor.  3-505(a)(2) states “the following are admissible as evidence and create a presumption of dishonor and of any notice of dishonor stated: a purported stamp or writing of the drawee, payor bank, or presenting bank on or accompanying the instrument stating that acceptance or payment has been refused unless reasons for the refusal are stated and the reasons are not consistent with dishonor.”  In sum, this says a dishonor of a check is wrongful dishonor unless the reasons for refusal are stated and are not consistent with dishonor.  You need a (1) refusal and (2) reasons that are stated (3) that are inconsistent with dishonor.   “Refer to maker” is very general and will be a reason that will not automatically be considered consistent with dishonor.  Technically, this should enable a payor bank to avoid liability; however, collecting banks submitting to the payor bank will not be happy if they always get the reason “refer to maker” rather than a concrete reason the check was not paid. Payor banks found that this was too burdensome b/c all banks keep calling you to ask, what does this “refer to maker” really mean?  Why didn’t you pay the check? Technically, though, other than the inconvenience of it, payor banks could use this and prevent liability in all cases.  Then, if banks call the payor bank and the payor bank has to give a reason “consistent with dishonor”, like insufficient funds, and would be on the hook for liability.  Amounting to a dishonor:  insufficient funds or made to a non-existent account (2 obvious cases of dishonor—exam)—the reason given must be “consistent with dishonor” in order to dishonor the check.  So, really there is no great advantage or release of liability.  

Term
If you are looking at damages:  must prove 
Definition
actual damages and may recover for other consequential damages for arrest or prosecution under 4-402(b).  Damages in Problem 1:  damages for arrest or prosecution of a customer (if we determine she is a customer), expenses incurred in defending Stacy.  Damages with harm to business reputation—how do you prove?  Distinguish between wrongful dishonor and defamation.  If you argue that the common law has been displaced, then you have no cause of action for defamation, and cannot recover damages for defamation.  If you can bring a claim for defamation, then you can recover those damages.  
Term

Along with the Empire check for $22,178.50, three other checks drawn by Empire, for $2000, $5000, and $10,000, are presented in the same bundle at the Clearing House.  Empire has only $24,000 in its account. What may the Bank of New York do w/o risking liability under 4-402? 

Refuse to pay all of them?  

Definition

1.       No.  4-402: A bank “wrongfully dishonors” an item that is properly payable.  If the first item received by the bank is the $2,000 check, the bank must look at customer’s account balance and the check can be paid.  Refusal to pay would result in a “wrongful dishonor.”  As long as there are sufficient funds to cover the checks, they must be paid.  The last check for $22,178 cannot be paid b/c of insufficient funds.  The bank must pay some of the checks, but not all of them.  We must pay attention to the ORDER in which the checks are presented!!  For the bank, it is good to start off with the very large item so that they can charge a fee for dishonor for the remaining three items. 4-303(b): If its on the same day the items are collected and processed together—You cannot restrict the bank’s freedom to process the checks in any order if the checks were presented on the same day.  

Term
Refuse to pay some of them?  
Definition

1.       Yes.  

Term
If the payor bank processes checks by a computer that automatically rejects overdrafts, would the order in which the computer processes checks be important?  
Definition

1.       Yes. The order would determine the number of checks dishonored.  If you start with the smaller items, it helps the customer.  The bank only makes a single determination under 4-402(c) of the account balance and is not required to make more than one evaluation.    

Term
Is it important for the bank to determine if subsequent deposits have been made?  
Definition
No.  Banks only have to make determination once as to the sufficiency of funds under 4-402(c).  
Term
If the payor bank imposes on the drawer a fee for dishonored checks that exceeds its costs, is it free to dishonor many small checks rather than one large check?  
Definition

1.       Yes.  The bank is free to dishonor as many checks as is legally possible.  It could dishonor 10 small checks and pay the large one.  Banks make money from these fees.  This has to be qualified by the fact that banks are under a general duty to act in good faith.  If they were to arrange the checks in a purposefully evil way, that would be a breach of their obligation.  Banks cannot manipulate the order to benefit themselves.  

Term
Parrett v. Platte Valley State Bank & Trust Co.  
Definition

Parrett was the principal shareholder, president, and chief operating officer of P&P Machinery.  He gave a personal guarantee for all loans taken out on behalf of the company.  Check was issued and dishonored, and Parett was charged with felony theft.  Parrett alleged wrongful dishonor of the check, arguing he was entitled to damages under 4-402.  Parrett alleges he has standing to bring suit under 4-402 b/c he is the President and principal shareholder of the company and as such he was a “customer” of the bank.  1st holding:  The Court held that Parrett was a “customer” of the bank within the meaning of 4-402 and that he can state a cause of action for wrongful dishonor of the check.  The parties’ business relationship, which included Parrett’s personal guaranty for P&P Machinery’s obligations to the bank, was such that it was reasonably foreseeable that dishonoring the corporation’s check would reflect directly on Parrett. (Moreover, Comment 4 to 4-402 states that “some courts have allowed a plaintiff other than the customer to sue when the customer is a business entity that is one and the same with the individuals operating it.”)  Second issue:  Parrett brings an action as principal shareholder.  As a general rule a shareholder may not bring an action in his or her own name to recover for wrongs done to the corporation or its property.  The well-recognized exception is that if the SH properly establishes an individual cause of action b/c the harm done to the corporation also damaged the SH in his or her individual capacity, rather than as a SH, such individual action may be maintained.  The SH must demonstrate there was a special duty, such as a contractual duty, between the wrongdoer and the SH or that the SH suffered an injury separate and distinct from that suffered by other SHs. The Court held the history of the relationship between the bank and P&P Machinery, which included Parrett’s personal guaranty for the corporations obligations to the bank, provides special circumstances, and therefore there was a special duty owed by the bank to Parrett as principal SH of P&P Machinery.

·         Narrow definition of “customer:” only party to qualify as customer would be P&P Machinery.  Broad definition extends it to individuals allowed to act on the corporation’s behalf.

·         Dissent:  The checking account stood in P&P Machinery’s name, an existing corporation with a long history of credit transactions with the bank.  Nothing indicates that the bank ever disregarded the corporate existence of P&P Machinery and treated Parrett as the principal or otherwise identified Parrett as the individuals responsible for satisfaction of the corporation’s obligations to the bank.  You could not pierce the corporate veil here as in Kendall.  P&P was not undercapitalized and was a separate legal entity. 

Term
When is it NOT a wrongful dishonor?  
Definition

When there are insufficient funds, when the customer tells the bank to stop payment.  If a zealous prosecutor wants to claim wrongful dishonor and recover when there were insufficient funds or a stop payment request, no recovery under 4-402 b/c no wrongful dishonor.  Argument under 1-103?  Could argue defamation and that common law cases were not displaced and are relevant.  4-402 doesn’t displace those common law cases which allow recovery for defamation—no clear language to suggest a displacement and therefore they are relevant and should be considered.  Argue opposite—there was a displacement.  Caption headings 1-107:  4-402 says “Bank’s liability to customer for wrongful dishonor.”  Defamation is not included in the title, so there is no recovery for it and it has been displaced.  

Term
If unsuccesful under the UCC what could you argue?
Definition

1-107 allows you to use “section captions.”  Argue that there was/was not displacement under 4-402 b/c of 4-402’s title section.  Only pertains to customer’s and not to non-customers; therefore the common law can supplement.  The caption heading to 4-402 is “Bank’s liability to customer for wrongful dishonor.”  Does not pertain to non-customers; therefore, leaves a hole for common law to supplement the UCC. Recovery by a non-customer: Macrum v. Security Trust & Savings Co. (pg. 151). 

Term
What happens when a payee (recipient of a check) takes the check directly to the payor bank (where he does not have an account)?
Definition

3-501(b)(2) states that “upon demand of the person to whom presentment is made, the person making presentment must (i) exhibit the instrument, (ii) give reasonable identification, and, if presentment is made on behalf of another person, reasonable evidence of authority to do so, and (iii) sign a receipt on the instrument for any payment made or surrender the instrument if full payment is made.” The bank may demand reasonable identification.  How long can the payor bank take to satisfy itself?  3-502(b)(2) says that the check is dishonored if presentment for payment is duly made and the draft is not paid on the day of presentment.  But 3-501(b)(4) allows the bank to “treat presentment as occurring on the next business day after the day of presentment if the party to whom presentment is made has established a cut off hour not earlier than 2pm for the receipt and processing of instruments presented for payment or acceptance and presentment is made after the cut-off hour.” 

Term
Failure to Execute Payment Orders:  Suppose that a bank receives a payment order from a depositor ordering it to transfer a sum of money to a transferee’s account, but the bank negligently fails to make the transfer.  As a result, the transferee cancels its contract with the transferor.  Is the bank liable to the depositor for the resulting loss?  
Definition

No.  4A-305, a receiving bank is not liable for consequential damages for failure to execute a payment order except “to the extent provided in an express written agreement of the receiving bank.” 

Term
4-404 states that 
Definition

that “a bank is under no obligation to a customer having a checking account to pay a check, other than a certified check, which is presented more than six months after its date.” The time limit is set at six months b/c banking and commercial practice regards a check outstanding for longer than that period as stale, and a bank will normally not pay such a check w/o consulting the depositor.  

Term
Would the assignment work in relation to a check? 
Definition

That is the case that is presented on pg. 180 of the E&E. The basic assignment talks about the assignor assigning all of his rights…however, the drawer can stop payment. The assignment policy does not work very well, because the check writer can stop rights at any given time. Because of all these possibilities, it would not be wise to consider a check assignable. 

Term
What are the circumstances when the bank would be liable
Definition
… The basis of the liability is where the bank has accepted a check. The bank ACCEPTS THE CHECK THROUGH SIGNING ON THE CHECK. It is only at that point. On pg. 133 CB we can see how a bank processes the payment or signs for it. The bank of New York is stamped and is viewed to constitute the bank’s signature. 
Term
3-408 states
Definition

“a check or other draft does not of itself operate as an assignment of funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until it accepts it.”  Comment 1 to 3-408 suggests that “a bank that has not certified a check may engage in other conduct that might make it liable to a holder” and that “section 1-103 is adequate to cover those cases.”  3-408 suggests that there would be times the instrument would operate as an assignment.  “A check or other draft does not of itself operate as an assignment.”  The parties can agree to take the check as an assignment, but specific steps must be taken. 

Term
Under 3-408 payor bank’s liability is based 
Definition

upon its acceptance of the instrument where it imprints its signature on the instrument.  

Term

 At the time that Empire draws the check at page 131 [in the amount of $22,178.50 payable to Quaker Manufacturing Co.], it has $40,000 in its account in the Bank of New York.  The Bank of New York has not yet paid the check.

If Empire discovers that the cans are defective, orders the Bank of New York not to pay and the Bank of New York refuses to pay, what are Quaker’s rights against the Bank of New York?  

Definition

1.        The Bank of NY is the payor bank or drawee, and the holder is Quaker.  Empire is the drawer of the check.  Quaker may try to argue that the check is an assignment.  As long as the Bank of New York has not accepted the check, it will not be liable (3-408 states that the drawee is not liable on the check until it accepts it.)  Under the UCC a check does not act as an assignment. Therefore, because the bank did not sign the check, thus failing to accept the check, the bank is not liable. The check, by itself, does not operate as an assignment. Quaker’s argument would fail.  There are, however, times when the check may operate as an assignment—when the two parties go to the bank and have the check certified (bank deducts the amount from the drawer’s account and puts it aside into a special account).  Quaker may try to argue under 3-409 that the bank is liable to the holder b/c it accepted the check.  3-409 states that “acceptance” means the drawee’s signed agreement to pay a draft as presented.  However, under 3-401 the payor bank must have signed the check in order to be liable on the instrument. 

Term
Can a judgment creditor of Empire attach any part of the $40,000 debt owned by the Bank of New York?  How much?  
Definition

 

1.        Since there is no assignment by the making of the check, the judgment creditor of Empire may attach the account funds and get all of Empire’s assets.  Any time you make a deposit into the bank, it is treated as if the bank owes you the debt.  For that reason, the $40,000 is called a “debt.”  A creditor is always interested in laying hands on all assets owned by Empire—As a creditor you can reach all or a portion of the assets. 

 

Term
Can a judgment creditor of Quaker attach any part of the $40,000 debt owed by the Bank of New York?  How much
Definition

 

1.        No, until the Empire check is accepted by the Bank of New York, Quaker has no interest in the account.  Until Quaker can make a claim, the creditor of Quaker may not make a claim.  B/c the bank hasn’t accepted the check under 3-401 or 3-409, Quaker has no claim to the money.  B/c the check does not operate as an assignment Quaker is not entitled to any funds—and the judgment creditor must suffer the same fate. 

 

Term
If Empire goes into bankruptcy, can its trustee in bankruptcy claim any part of the $40,000 as an asset of Empire?  How much?  
Definition

1.        Yes, the trustee of Empire in bankruptcy has an interest in the account and may attach the assets.  Trustee should be able to claim any part of the $40,000 assets.

Term
State Bank of Southern Utah v. Stallings
Definition

Due to the garnishments, State Bank of Southern Utah had first access to the funds.  Argument that the State Bank should have no right to the funds—b/c the check from Stallings was an assignment of $2,200.  If the parties had agreed for there to be an assignment, and had taken the Stallings check to the bank to get it certified—there would have been a valid assignment.  What does it mean to be certified?  2-409 states that “certified check” means a check accepted by the bank on which it is drawn.  It is possible to come to an agreement to an assignment—requires an agreement between the holder and drawer of the check and then it should be taken to the payor bank to be certified.  The rule: check does not operate as an assignment b/c drawer can still stop payment or close account—still has control.  It is only when the bank accepts it that it will be paid.  In this case, the bank never accepted the check. 

 

When that amount is certified the money is drawn out the drawee’s account. It can be done by simply placing a stamp on it. With certification some of the problems of the assignability would be taken away. So the buyer would lose control. 

Term
What the pertinent Money Orders rules in the UCC and what are they treated like under the UCC?
Definition

treated like checks under the UCC.  3-104(f) states that “an instrument may be a check even though it is described on its face as a “money order.”  For money orders, they are subject to similar rules—owner can stop payment, and drawee bank cannot on its own stop payment on the money order issued. The seller (issuing bank) is not going to be liable under the terms of the money order unless it has shown it has accepted the check. 3-408 states that “the drawee is not liable on the instrument until the drawee accepts it.”  3-401 states that “a person is not liable on an instrument unless the person signed the instrument.”

  • Comment 1 to 4-401:  The signature may be made by the obligor personally or by an agent authorized to act for the obligor.  It is not necessary that the name of the obligor appear on the instrument, so long as there is a signature that binds the obligor.  Signature includes an indorsement. A signature may be typed, handwritten, printed or made in any other manner.  It may be made by mark or thumbprint.

 

Term
Sequoyah State Bank v. Union National Bank.  
Definition

Union Bank bears the loss—court focuses on whether the money order is described as a check. Reasons:  (1) custom and practice of the business community to accept personal money orders as a pledge of the issuing bank’s credit (custom as justification for the court’s holding: everyone counts on the issuing bank to pay and the bank cannot renig on that promise now); (2) Signature: 3-401 once payor bank signs the instrument they are liable (bank’s name is stamped on the order—the bank’s signature was considered to be where the banks’ name was printed on the front of the money order—sufficient to find the bank liable); (3) Acceptance: 3-409 By issuing the money order, it has “accepted” the order and is therefore liable for it.  Act of issuance amounts to an acceptance.  (4) Drawee cannot stop payment:  Finally, banks are not allowed to stop payment on their depositor’s checks and also should not be able to stop payment on money orders. 

  • Dissent:  J. Dudley states that a money order is NOT equivalent to a check.  It contains a signature and takes the form of an order to pay and is payable upon demand—all of these things make it like a check, not a note.  No officer from the bank signed the check.  Basically, if you consider the typed name of the bank as evidence of a signature, the bank would be liable on every money order.  You should not rely on this type of information as the bank’s signature as a basis for liability under 3-408.  Acceptance: bank was not liable from the issuance of the money order—if bank’s obligation is automatic and a money order is stolen, it would be inconsistent with the right to stop payment which is recognized for both checks and money orders.  These rights would be inconsistent with each other—bank is not liable at issuance b/c the purchaser could never stop payment.  If we take the side that issuance constitutes acceptance as the majority holds, then it is irrelevant to consider whether the drawee can stop payment.
  • Majority is wrong about acceptance.  And about signature—DISSENT is CORRECT. Majority is only right that b/c a drawee (bank) cannot stop payment of the check, they should not do so for money orders. 
  • Comment to section 3-104, #4 states “the most common form of money order sold by banks is that of an ordinary check drawn by the purchaser except that the amount is machine impressed.  That kind of money order is a check under Article 3 and is subject to a stop payment order by the purchaser-drawer as in the case of ordinary checks.  The seller bank is the drawee and has no obligation to a holder to pay the money order.

 

Term
A Bank’s “right to setoff:”  
Definition
the common law, equitable right of a bank to apply the general deposits of a depositor against the matured debts of the depositor.  Ex: if I overdraft on my account, the bank has a right to pay itself before it uses the money to cover my other debts.  This right of set-off exists, however, only if the deposit is “general” and not “special.”  Funds deposited for a special purpose known to the bank, or under special agreement, cannot be offset by the bank
Term
Problem 4: A gave the First Bank B’s personal check for $500 payable to First Bank plus a small fee and received a “Personal Money Order” like that shown with the amount “five hundred dollars” imprinted  on it by machine.  A filled in A’s own name as payee and indorsed it to Dealer in payment for a stereo.  When Dealer presented it for payment, First Bank refused to pay it because B’s check had been dishonored for insufficient funds.  Is First Bank liable to Dealer?  
Definition
No, First Bank cannot be liable to the holder because the Bank did not sign the money order and there was no acceptance of the money order by the bank.  Until accepted Bank can dishonor.  This is a personal money order—we apply rules applicable to checks to money orders under 3-104, Comment #4, the same rules re: liability of the payor bank when a check is issued apply as well to a money order.  No—3-401 (a person is not liable on an instrument unless the person signed the instrument) and 3-408 (the drawee is not liable on the instrument until the drawee accepts it) are applicable here.  First Bank is NOT liable to Dealer.  
Term
.  Can the purchaser stop payment?  
Definition

Yes.  The purchaser may stop payment, just not the bank—According to the Comment #4 of 3-104, which states, “the most common form of money order sold by banks is that of an ordinary check drawn by the purchaser except that the amount is machine impressed.  That kind of money order is a check under Article 3 and is subject to a stop payment order by the purchaser-drawer as in the case of ordinary checks.  The seller bank is the drawee and has no obligation to a holder to pay the money order.”  Would your answers be affected if banks’ advertisements suggested that personal money orders were more reliable than personal checks? No, shouldn’t affect it at all. Under 3-408 and 3-401 should not be liable at all.

 

Term
Remitters
Definition

Buyer who wishes to make payment to seller by a cashier’s check or teller’s check, may have it made payable  to buyer’s own order and later indorse it to seller, or may have it made payable to seller’s order.  In this latter case, buyer is known as a “remitter.”  Remitter” means a person who purchases an instrument from its issuer if the instrument is payable to an identified person other than the purchaser.”

Term

  • (h) "Teller's check
  • (i) "Traveler's check

Definition

means a draft drawn by a bank (i) on another bank, or (ii) payable at or through a bank. 

means an instrument that (i) is payable on demand, (ii) is drawn on or payable at or through a bank, (iii) is designated by the term "traveler's check" or by a substantially similar term, and (iv) requires, as a condition to payment, a countersignature by a person whose specimen signature appears on the instrument.

Term
Rights on Dishonor
Definition

Tender of payment is usually a condition to the seller’s duty to tender and complete any delivery under 2-511.  2-511(2) states that “tender of payment is sufficient when made by any means or in any manner current in the ordinary course of business unless the seller demands payment in legal tender and gives any extension of time reasonably necessary to procure it.”

 

Term
Dishonor.  
Definition

Dishonor is governed by 3-502.  Subsection (a) refers to dishonor of a note and subsection (b) refers to dishonor of an unaccepted draft.  Dishonor usually consists of the maker’s or drawee’s refusal to pay when the instrument is presented for payment.  Thus, a check is dishonored if, on presentment, the payor bank refuses to pay it for reasons other than those in 3-501(b)(3):  “without dishonoring the instrument, the party to whom presentment is made may (i) return the instrument for lack of a necessary indorsement, or (ii) refuse payment or acceptance for failure of the presentment to comply with the terms of the instrument.”  However, presentment is excused in the situations described in 3-504, as where the drawer of a check has stopped payment or has no right to expect payment of an overdraft.  Evidence of dishonor is dealt with in 3-505.

 

If the instrument is dishonored and it happens that the oblige of the obligation for which the obligation was taken was the holder, then the obligee can enforce it. In looking at a dishonor, the person in possession

 

At the time of dishonor, the person who can enforce would be one who would be referred to as the original oblige

Term

Notice of Dishonor

 

 

 3-503(a)

 

Definition
“the obligation of an indorser or a drawer may not be enforced unless (i) the indorser or drawer is given notice of dishonor of the instrument or (ii) notice of dishonor is excused under 3-504(b). 
Term
3-503(b) 
Definition
states that “notice of dishonor may be given by any person; may be given by any commercially reasonable means, including an oral, written, or electronic communication; and is sufficient if it reasonably identifies the instrument and indicates that the instrument has been dishonored or has not been paid or accepted.  Return of an instrument given to a bank for collection is sufficient notice of dishonor.”
Term
3-503(c) 
Definition

provides that notice of dishonor “must be given (i) by the bank before midnight of the next banking day following the banking day on which the bank receives notice of dishonor of the instrument, or (ii) by any other person within 30 days following the day on which the person receives notice of dishonor.”

Term
3-504(c) 
Definition
delay in giving notice of dishonor is excused if the delay was caused by circumstances beyond the control of the person giving the notice and the person giving the notice exercised reasonable diligence after the cause of the delay ceased to operate.” 
Term
Discharge of Drawer
Definition

.  If the holder delays presentment of a check, and during the delay the payor bank becomes insolvent—3-414(f) provides that if the delay exceeds 30 days and the payor bank suspends payment, “the drawer to the extent deprived of funds may discharge its obligation to pay the check by assigning to the person entitled to enforce the check the rights of the drawer against the drawee with respect to the funds.”  The likelihood of discharge of the drawer by delay in presentment is therefore remote.

 

The check when it is dishonored: the drawer of the check would remain liable according to its terms. The issue about transfer warranty will only kick into. 

Term
Discharge of Indorser
Definition

3-415(e) states that an indorser is discharged by a 30 day delay in presentment, regardless of whether the delay has caused any loss to the indorser.  “If the check is not presented for payment, or given to a depository bank collection, within 30 days after the indorsement was made, the liability of the indorser is discharged.”  Also, under 3-503, the same result follows from failure to give timely notice of dishonor.  Delay is much more likely to result in the discharge of an indorser than in the discharge of a drawer.  

Term
Liability on the Underlying Obligation.  
Definition

Under 3-310(b) and 2-511, a check is ordinarily taken as conditional rather than absolute payment—contingent upon their being sufficient funds, no stop payment order, and no closing of the account—suspending the obligation rather than discharging it. 

In the unlikely event that a drawer, having given a check in payment of an obligation, is deprived of funds by delay in presentment and discharges its obligation to pay the check by an assignment under 3-414(f), payment of the check discharges the underlying obligation under 3-310(b)(1).  If a payee, having indorsed a check in payment of an obligation, is discharged by delay in presentment or notice of dishonor, the underlying obligation is also thereby discharged under 3-310(b)(3).  

Term
Liability on Warranties
Definition
These warranties are found in 3-416 and 4-207.  
Term
3-416: Transfer Warranties
Definition

states that “a person who transfers an instrument for consideration warrants to the transferee and, if the transfer is by indorsement, to any subsequent transferee, that:

  1. the warrantor is a person entitled to enforce the instrument;
  2. all signatures on the instrument are authentic and authorized;
  3. the instrument has not been altered;
  4. the instrument is not subject to a defense or claim in recoupment of any party which can be asserted against the warrantor;
  5. the warrantor has no knowledge of any insolvency proceeding commenced with respect to the maker, acceptor, or drawer. 

Term
4-207: Transfer Warranties
Definition

states “a customer or collecting bank that transfers an item and receives a settlement or other consideration warrants to the transferee and to any subsequent collecting bank that:

  1. the warrantor is a person entitled to enforce the instrument;
  2. all signatures on the instrument are authentic and authorized;
  3. the instrument has not been altered;
  4. the instrument is not subject to a defense or claim in recoupment of any party which can be asserted against the warrantor;
  5. the warrantor has no knowledge of any insolvency proceeding commenced with respect to the maker, acceptor, or drawer. 

Term

Warranties are important in four situations: 

Definition

  1. Where an instrument payable to bearer is negotiated by delivery without indorsement, the transferor does not make the indorser’s engagement but does make implied warranties to his immediate transferee
  2. Where an instrument is negotiated by indorsemetn that includes such words as “without recourse” the transferor does not make the indorser’s engagement, but does make implied warranties to the transferee and subsequent holders.
  3. Where an instrument is negotiated by the usual indorsement, but the transferor is discharged from the indorser’s engagement b/c of delay in presentment or notice, the transferor may still be liable to the transferee or subsequent holders on warrainties that are not so conditioned.
  4. Where an instrument is negotiated by the usual indorsement, but payment is refused for a reason not consistent with dishonor, such as forged indorsement, the transferor may be liable on the warranties though not on the indorser’s engagement. 

Term
Right of Charge-Back or Refund.  
Definition

4-214(a) gives the collecting bank a right to “revoke the settlement given by it” and “charge back the amount of any credit given for the item to its customer’s account, or obtain refund from its customer.” In order to preserve this right, however, the bank must either return the item or send notification of the facts to its customer “by its midnight deadline  or within a longer reasonable time after it learns the facts.” 4-104(a)(10) defines “midnight deadline” as “midnight on its next banking day following the banking day on which it receives the relevant item or notice.”

                4-214(a) states that “if the return or notice is delayed beyond the bank’s midnight deadline or a longer reasonable time after it learns the facts, the bank may revoke the settlement, charge back the credit, or obtain refund from its customer, but it is liable for any loss resulting from the delay.”  A collecting bank loses its rights only to the extent of damages for any loss resulting from the delay.

 

With each negotiable instrument issued, you have two obligations: (1) the contractual obligation and (2) the obligation under the instrument.  You cannot enforce both of them, you must enforce one or the other.

Term

3-310 governs circumstances when contractual obligation can be enforced.  

Definition

  1. 3-310(a) When a certified check (personal check the bank has agreed to pay), cashier’s check (3-104 defines it as “a draft with respect to which the drawer and drawee are the same bank.”) or teller’s check (3-104: “a draft drawn by a bank (i) on another bank, or (ii) payable at or through a bank.”) is taken for an obligation, the obligation is discharged.  It’s as if you’ve made a cash payment.
  2. 3-310(b):  If it is a note or uncertified check, the obligation is suspended until payment or discharge.  The following rules apply: (1) suspension continues until the instrument is paid or dishonored. 
  3. 3-310(b)(3):  Where the check is dishonored and the obligee is taken as the holder, that obligee can either enforce the instrument or the contract obligation but not both.  Seller is obligee and buyer is the obligor under 3-310(b)(3).  If buyer has paid using a check that is subsequently dishonored, the seller can choose to enforce the contractual obligation or the obligation under the instrument. 
  4. 3-310(b)(3):  If for any reason obligor’s liability is discharged, the discharge of the instrument is also a discharge of the obligation.  The “instrument of a third person” is an instrument (check) written by another person—you can endorse that instrument to pay off an obligation. A issues a check (drawer)  made payable to B (endorser), and B then endorses to C, the seller.  If B comes in as an endorser, and B’s rights are for whatever reason discharged on the instrument, his obligation is also discharged. When can B’s obligations be discharged? 3-415 describes them:  there is no liability against the indorser if the check is not presented within 30 days of the indorsement—it would discharge the obligation under the instrument and under the contract. C cannot sue B for the purchase price.

Term
Can the 3rd party enforce the obligation under the contract?  
Definition

  1.  
    • No, that 3rd party would NOT have privity of contract—not a party to the contract between buyer and seller.Only the original oblige can enforce the contractual obligation so long as he is IN POSSESSION of the instrument.  No one else, no third party, may enforce the contract. 3-310(b)(3).

Term
Under 3-414(f):  where drawer assigns its rights to the holder.  
Definition
.  A “wrongful dishonor” claim can be brought by the holder b/c there are sufficient funds in the account but it just was not presented for payment.  
Term
4-402(a) states 
Definition
states that a “payor bank wrongfully dishonors an item if it dishonors an item that is properly payable, but a bank may dishonor an item that would create an overdraft unless it has agreed to pay the overdraft.”  This is relevant to 3-414(f) b/c the drawer would have funds sufficient to cover the item
Term
3-414
Definition

3-414(b) if an unaccepted draft is dishonored, the drawer is obliged to pay the draft (i) according to its terms at the time it was issued.”  The drawer remains primarily liable under this section. Liability is owed to “the person entitled to enforce the draft or to an endorser who paid the draft.” 3-414(e)—the drawer cannot try to limit its liability “without recourse”—the drawer will remain liable. 3-414(f) says that if (i) a check is not presented for payment or given to a depositary bank within 30 days after its date, [and there is bank failure, which causes] (ii) the drawee suspends payments, and (iii) because of the suspension of payments, the drawer can discharge his obligation under the contract by assigning his writes under the K to the holder of the instrument.   The drawer could transfer his rights to bringing the wrongful dishonor claim to the holder. 

Term
3-415:  Obligation of Indorser:
Definition

“If an instrument is dishonored, an indorser is obliged to pay the amount due on the instrument (i) according to the terms of the instrument at the time it was indorsed.”

The obligation is owed to the person entitled to enforce—the holder of the instrument.

An indorser will not be liable on the instrument if the check has written on it with “without recourse.”  If you do not provide notice of dishonor as required under 3-503, you cannot pursue claims as an indorser.  Any time an item is not paid, the payor bank would typically inform the relevant parties.  Under 3-503 there are time restrictions for providing the necessary notice.  If you are a collecting bank, notice of dishonor “must be given (i) by the bank before midnight of the next banking day following the banking day on which the bank receives notice of dishonor of the instrument, or (ii) by any other person within 30 days following the day on which the person receives notice of dishonor.” 2-503.  The event that is critical is notice of the dishonor by the collecting bank in (i).  The second critical time is 30 days to provide notice if you are an individual.  Individuals are not held to the same high standard as banks.

 

Term
There are other grounds the holder should explore.  3-416: transfer warranties. 
Definition

1.        3-416(a)(1): the warrantor is a person entitled to enforce the instrument; Who is entitled to enforce the instrument?  3-301 states that it is the “holder of the instrument.” (What is the diff between holder and holder in due course?  To hold “in due course” means you must be a holder who acquires the instrument in good faith for value.)  If you have an order instrument you negotiate through endorsement and delivery.  “Person entitled to enforce”—means you are a holder who has an instrument that was properly endorsed and delivered.  We could say this warranty has been breached if there was no endorsement or a forced endorsement procured through duress.  IF it wasn’t endorsed, you can litigate under 3-416(a)(1).

2.        3-416(b)(2):  all signatures on the instrument are authentic and authorized; (including drawer’s signature and indorser’s signature).

3.        3-416(b)(3): the instrument has not been altered; (cannot alter monetary value)

4.        3-416(b)(4):  the instrument is not subject to a defense or claim in recoupment of any party which can be asserted against the warrantor;

5.        3-416(b)(5):  the warrantor has no knowledge of any insolvency proceeding commenced with respect to the maker or acceptor or, in the case of an unaccepted draft, the drawer; and

3-416 only applies when there is a transfer of the instrument and EXCLUDES the issuance of a check by the drawer to a payee. 

Term
Recall that to be liable under 3-415, you must be 
Definition

you must be an indorser.  If there is no indorsement, you cannot come under 3-415.  The only instrument that does not have to be indorsed is a bearer instrument. If parties who have given you the check have not indorsed it, then they are merely transferor’s, not indorsers. You cannot go after a transferor under 3-415. 

Term
Problem 5: A grocer delivers groceries, and occasionally cash, to customers, taking in return personal checks drawn by them.  What risks, if any, does the grocer run by failing to deposit these checks for collection for two weeks?  For two months?  
Definition

There are potentially three levels of liability.  There are always two layers of liability when dealing with an instrument:  liability on the contract and liability on the instrument.  There is one more layer dealing with 3-416 transfer warranties, which is not pertinent here b/c there has been no transfer at all.  There is no transfer just the initial issuance.  Under this question the customers are the drawers of the checks and the grocer is the holder.  The grocer could enforce under the instrument or under the contract.

3-310: Analysis:  Are we dealing with certified check, cashier’s check, teller’s check, or uncertified check?  Uncertified check, therefore we know the contract is not discharged.  Then the check suspends the obligation until it is either paid or dishonored.  We know this is an uncertified check b/c there are no facts that state the check was certified.  Under 3-310 the contract obligation has been suspended, therefore, we are done talking about the contractual obligation.  When the assignment occurs and the drawer gives the grocer the ability to sue the bank under 3-414(f), then the obligations under both the K and instrument are satisfied. 

  • Customers are drawers and the grocer is the holder.  There are two layer of liability:  the underlying obligation (under the contract) and the obligation under the instrument.  There is a third layer of liability that we should always explore:  transfer warranties.  3-416 is not applicable b/c there has been no transfer, only original issuance. 
  • Under 3-310(b), this is an uncertified check that is taken for an obligation and the obligation is suspended until dishonor of the check or until it is paid or certified.  Payment or certification of the check results in discharge of the obligation to the extent of the amount of the check. 
  • Under 3-310(b)(3) If the uncertified check is dishonored, and the obligee of the obligation (the grocer here) is the person entitled to enforce the instrument (3-301 defines this as “the holder of the instrument”)—which is the case here, then the obligee may enforce either the instrument or the obligation

Term
Obligation of the Drawer under 3-414(b
Definition

  • If an unaccepted draft is dishonored, the drawer (the customer) is obliged to pay the draft according to its terms at the time it was issued.  The obligation is owed to a person entitled to enforce the instrument (3-301).  The liability of the drawer of an unaccepted draft is a primary liability.    

Term
What risks, if any, does the grocer run by failing to deposit these checks for collection for two weeks?  
Definition

  • Grocer does not run any risks.  Unless you consider the potential that the customer may no longer have sufficient funds in two weeks.  However, even then the obligee grocer as the “person entitled to enforce the instrument” may enforce either the instrument or the obligation under 3-310(b)(3). The grocer as holder can always sue under 3-414(b).  

Term
For two months?  
Definition

  • The customer would be liable unless the bank fails.  The grocer runs the risk that the bank will fail.  Under 3-314(f) all the events must occur in order for the person entitled to enforce the check to recover.  3-414(f) provides that if a check is not presented for payment within 30 days after its date, and the drawee bank suspends payments after expiration of the 30-day period, and the drawer’s funds are frozen—then the drawer may discharge its obligation to pay the check by assigning to the grocer (the person entitled to enforce the check) the rights of the drawer against the drawee bank.  The drawer is no longer liable but his rights are assigned to the holder/grocer against the bank.  What are some of the rights that would be passed?  The claim for wrongful dishonor—the bank had sufficient funds in the account but the check was not paid.  If the bank fails within the first month—the drawer will be liable.  The statute sets out a minimum 30 day limit. 

Term
Presentment: 3-501
Definition

  • Means a demand made by or on behalf of a person entitled to enforce an instrument (3-301) to pay the instrument made to the drawee (bank) or a party obliged to pay the instrument.  In this case presentment has not been excused under 3-504.  

Term
Dishonor: 3-502: 
Definition
: Dishonor is made if the note is not payable on demand and is payable at or through a bank or the terms of the note require presentment, the note is dishonored if presentment is duly made and the note is not paid on the day it becomes payable or the day of presentment, whichever is later. 
Term
Excused Presentment and Notice of Dishonor: 3-504
Definition

 

  • Presentment for payment or acceptance of an instrument is excused if (i) the person entitled to present the instrument cannot with reasonable diligence make presentment, (ii) the maker or acceptor has repudiated an obligation to pay the instrument or is dead or in insolvency proceedings, (iii) by the terms of the instrument presentment is not necessary to enforce the obligation of indorsers or the drawer….
  • Stale payment:  under the UCC if you hold a check for 6 months, then the check becomes invalid.

 

Term

 

Problem 6: A grocer delivers groceries, and occasionally cash, to customers, taking in return their pay checks, drawn by their employers to their order, and specially indorsed by them to him.  What risks, if any, does he run by failing to deposit these checks for collection for two weeks? 

 

Definition

The drawer is the employer, the indorsers would be the customers, and the holder would be the grocer.  3 layers of obligations.  First layer—the contractual obligation—Under 3-310(b)(2) this is an uncertified check and the obligation on the contract would be suspended until payment or dishonor.  Now, we proceed on the instrument.  Second layer—3-415—an indorser is obligated to pay the amount due on the instrument according to the terms of the instrument at the time it was indorsed.  Even if it was within two weeks and the indorser wrote “without recourse” then the indorser is NOT liable to pay the instrument. 

Term
For two months? 
Definition

  • 3-415(e) if you delay presentment by 30 days you lose your ability to go after the indorser—their liability under the instrument would be discharged.  After 30 days you lose your ability to go after the obligation on the instrument and thereby as well on the contract.  If you lose the indorsers, it would end the contractual obligation.  The Ktual obligation could not be enforced.  When you lose your ability to proceed against indorsers, you also lose your ability to enforce the contract or sue under the contract.  This is stated in 3-310(b)(3) (“in the case of an instrument of a third person which is negotiated to the obligee by the obligor, discharge of the obligor on the instrument also discharges the obligation.”)  In this case, the grocer is the obligee and the customer is the obligor.  The instrument of the third person—the third person is the employer—The customers took the instrument of a third person and negotiated that instrument as obligor’s to the payment of the obligation to the obligee.  No facts to indicate any breach of transfer warranty in this case.
  • The last option to consider is the possibility of going after the employer who issued the checks.  You can always go after every person who issues a check as a drawer.  You don’t have to have a relationship with them.  Drawers are always going to be liable under 3-414.  You can lose this right to go after the drawers—if you wait longer than 30 days to present the check.  4 options: obligation under the K, under the instrument, transfer warranties, and proceeding against the employers as drawers.  

Term
Are there any circumstances in which the grocer may end up in a worse position, as a result of having taken a negotiable instrument, than by selling on open credit?  If so, can you think of an explanation?    
Definition

  • The grocer is the holder and the customers are the indorsers.  The employer is the drawer.  Grocer could proceed under the warranties of 3-416 or he could proceed under the instrument.  The grocer could proceed under the K obligation only if it was dishonored by the back because the K obligation is suspended under dishonor.  Customers could be liable as indorsers under 3-415.  The grocer does not run any risks by delaying presentment for two weeks.  If 2 months, however, the grocer cannot go against the customers because the delay in presentment discharges indorser’s liability (but can go after employer unless bank becomes insolvent).  Moreover, once the instrument obligation is discharged, §3-310 says that the K obligation is automatically discharged as well by reason of the discharge of the indorser.  Moreover, the customer does not have a valid claim under the warranties.  The grocer can proceed against the drawer under the relevant UCC section.       

Term

RECOVERY FROM THE DRAWER: 4-401

4-401:  

Definition

:  “A bank may charge against the account of a customer an item that is properly payable from the account even though the charge creates an overdraft.  An item is properly payable if it is authorized by the customer and is in accordance with any agreement between the customer and bank.” (4-401) A bank may charge any properly payable item to its customer’s account even if it results in an overdraft.  (The bank should be able to recover from the drawer under 4-401.  An instrument would NOT be properly payable if it was not authorized by the drawer and you CANNOT charge the customer’s account.  Ex’s:  forgery of an instrument, if instrument was written for $50 and someone alters it to be $500, it is typically found to be unauthorized.) 

  • Comment 1 to 4-401 states that “an item is properly payable from a customer’s account if the customer has authorized the payment and the payment does not violate any agreement that may exist between the bank and its customer.  An item drawn for more than the amount of a customer’s account may be properly payable.  An item containing a forged drawer’s signature or forged indorsement is NOT properly payable.

 

4-401(d)(1): “A bank that in good faith makes payment to a holder may charge the indicated account of its customer according to: the original terms of the altered item.”  If it is the case of an alteration, the bank can recover from the customer/drawer according to the original terms of $50, not $500.  

Term
3-418(a) states 
Definition

Except as provided in subsection (c), if the drawee of a draft pays or accepts the draft and the drawee acted on the mistaken belief that (i) payment of the draft had not been stopped pursuant to section 4-403 or (ii) the signature of the drawer of the draft was authorized, the drawee (bank) may recover the amount of the draft from the person to whom or for whose benefit payment was made.”  This section recognizes right to recover from the person who has been paid.  Under 3-418(a) the bank can recover subject to subsection (c).

 

Term
3-418(b) states
Definition

Except as provided in subsection (c), if an instrument has been paid or accepted by mistake and the case is not covered by subsection (a), the person paying or accepting may, to the extent permitted by the law governing mistake and restitution, (i) recover the payment from the person to whom or for whose benefit payment was made or (ii) in the case of acceptance, may revoke acceptance.”  This section includes all other mistakes resulting in payment.  Subsection (b) focuses on the common law.  Then go under the common law rules.  The common law position for certain mistakes—pg. 178.  This right is subject to subsection (c).

  • The common law rule (pg. 178) is “that a payment in the ordinary course of business of a check by a bank on which it is drawn under the mistaken belief that the drawer has funds in the bank subject to check is not such a payment under a mistake of fact as will permit the bank to recover the money so paid from the recipient of such payment.”  To permit the bank to repudiate the payment would destroy the certainty which must pertain to commercial transactions if they are to remain useful to the business public.  Otherwise no one would ever know when he can safely receive payment of a check.

 

Term
3-418(c):  
Definition

“The remedies provided by subsection (a) or (b) may not be asserted against a person (payee) who took the instrument in good faith and for value or who in good faith changed position in reliance on the payment or acceptance.”  Rare occasion where payee bank may recover in spite of this provision:  A father who issues his daughter a check, and both individuals have accounts in the same bank—Comment #3 to 3-418.  Daughter never provided any value—so subsection (c) does not apply.  Payor bank also acts as depository bank. 

 

3-418(c) is also reflected in the common law. Section 29 of the Restatement of Restitution:  “if the bank paid b/c of a mistaken belief that there were available funds in the drawer’s account sufficient to cover the amount of the check, the bank is entitled to restitution.  But § 29 is subject to § 33 which denies restitution if the holder of the check receiving payment paid value in good faith for the check and had no reason to know that the check was paid by mistake when payment was received.”

  • Ex: suppose father gives daughter a check for $10,000 as a b’day gift.  The check is drawn on a bank in which both father and daughter have accounts.  Daughter deposits the check in her account in bank.  An employee of bank, acting under the belief that there were available funds in father’s account to cover the check, caused daughter’s account to be credited for $10,000.  In fact, father’s account was overdrawn and father did not have overdraft privileges.  Sicne daughter received the check gratuitously there is clear unjust enrichment if she is allowed to keep the $10,000 and bank is unable to obtain reimbursement from father.  Thus, bank should be permitted to reverse the credit to daughter’s account.  But this case is NOT typical.  In most cases the remedy of restitution will NOT be available b/c the person receiving payment of the check will have given value for it in good faith.
  • Most of the time recovery will be barred b/c of subsection (c).  

Term
3-417: Presentment Warranties
Definition

“If an unaccepted draft is presented to the drawee for payment or acceptance and the drawee pays or accepts the draft, (i) the person obtaining payment or acceptance, at the time of presentment, and (ii) a previous transferor of the draft, at the time of transfer, warrant to the drawee making payment or accepting the draft in good faith that: 

  1. The warrantor is, or was, at the time the warranter transferred the draft, a person entitled to enforce (the holder of the instrument) the draft.  In order to determine whether a holder, look at rules of negotiation—if it’s an order instrument, it must be indorsed and delivered.  If a required indorsement is missing or if the indorsement was forged, you cannot be the “holder.”  If you say you are the holder, you are saying there are no indorsements missing and no forgery has been committed.
  2. The draft (check) has not been altered. 
  3. The warrantor has no knowledge that the signature of the drawer of the draft is unauthorized.  Note:  this is all based on the knowledge of the warrantor, the signature can be unauthorized and the warrantor NOT know about it—

Term
3-417(b) Measure of Damages:  
Definition

“A drawee making payment may recover from any warrantor damages for breach of warranty equal to the amount paid by the drawee less the amount the drawee received or is entitled to receive from the drawer because of the payment.”  

Term
Hypo: Check called for payment of $100 and it is altered to $1,000 and payor bank pays $1,000 to the payee.  How much can the payor bank recover under 3-417 (2) and 3-417(b)?
Definition

$900 b/c the payee is entitled to $100.  Used in conjunction with 4-401(d)—a bank may charge the account of the customer according to the original terms of the altered item.  $1,000-$100=$900.  Collect $900 from the person who was paid and the remaining $100 from the drawer; although it is done in two separate transactions.  There is a bifurcation of the claims. 

Term
Under 3-418, when the person has been paid, you as payor bank may proceed against 
Definition

against that person only if that person has the drawer’s rights.  If the drawer objects to the payment of the whole amount of the check (buyer obtains defective goods from seller), the buyer would not refuse to pay but may want to pay a much smaller amount—a bank that has paid, can be subrogated to any rights the buyer would have against the seller.  Bank can recover from the person who was paid—

 

Term
4-407:  Subrogation—you proceed to whatever rights. 
Definition

To prevent unjust enrichment, the bank would be subrogated to the rights of payee.  “If a payor bank has paid an item over the order of the drawer to stop payment, or after an account has been closed, or otherwise under circumstances giving a basis for objection by the drawer…the payor bank is subrogated to the rights…(1) of any holder in due course on the item against the drawer; (2) of the payee or any other holder of the item against the drawer either on the item or under the transaction out of which the item arose; and (3) of the drawer against the payee or any other holder of the item with respect to the transaction out of which the item arose.”

 

Term
There are two ways in which the Payor bank receives a check: 
Definition

(1) payee (who has an account at the bank) walks in payor/depositary bank and gives the check to the payor bank over the counter (this occurs when payor bank is considered the depository bank); (2) bank receives the check through a clearinghouse arrangement (from another collecting bank). 

 

Term
Kirby v. First & Merchants National Bank.  
Definition

.  The depositary bank here is the same as the payor bank—important.  On Dec. 30, the check was deposited for $2,500 and Mrs. Kirby was given $200 cash back.  Two options open to the bank:  The bank could go against the drawer (since they maintained funds in the same bank) or the person that was paid.  Against drawer would be under 4-401(but chose not to do so b/c no funds here).  But it proceeded to go after Mrs. Kirby, the person paid under 3-418(b). However, under 3-418(b) you also have to look to (c) and a person who takes the instrument in good faith and for value one may not have remedies against under 3-418(b).  3-418(c)—it’s only when you have paid, that you would be precluded from recovery—was their a payment of the check?  4-215—this was paid in cash.  Documentary evidence states that cash was deposited--

  • The Kirby case is important b/c it focuses on payment.  If it is suggested that a payment is made by cash over the counter, there is a final settlement—bottom-line of the Kirby case.
  • Still part of Kirby—Holder of a check that is not paid can always go after prior indorsers under 3-415.  At the time the Kirbys presented the check for payment, they indorsed the item over to the bank and therefore qualify as indorsers; but they are not liable under 3-415.  Indorsers are liable under 3-415 when an instrument is dishonored—in the Kirby case the instrument was not dishonored; therefore, no liability for the Kirby’s as indorsers. 
  • What are the rights of the drawee bank under 3-415?  The rights do NOT run in favor of the drawee bank under 3-415.  If a drawee bank has suffered no loss, they cannot bring suit—if they have dishonored the instrument, they have not paid it, and have not suffered any loss.  As a practical matter 3-415 cannot be used by the drawee bank b/c to the extent it dishonors the item, there has been no loss suffered, and it can bring no action.
  • 3-416 does not include a warranty for insufficiency of funds. 
  • Deposit was made on the 30th, credit made the next day—on the 3rd bank found a problem, and on the 10th the bank notified Mrs. Kirby.  Bank did not notify Mrs. Kirby by midnight deadline following the day in which they received the item. The bank would have been deemed to have finally paid. 

 

Term
Douglas v. Citizens Bank of Jonesboro.  PEG—Prior Endorsements Guaranteed.  
Definition

.  Pay attention to dates! Aug. 19th was the deposit, Aug. 20th the bank dishonored the checks, and Rees brought an action for wrongful dishonor, under 4-401 and 4-402.  Argued the banks accepted the instrument—3-409 “acceptance” means the drawee’s signed agreement to pay a draft as presented (endorsement stamp).  Bank argued the stamp was merely identification.  The stamp was used as a method for distinguishing checks from customers from checks from other banking institutions.  Only checks brought in by customers are distinguished with this stamp.  The bank argues the stamp does not represent an agreement to pay.  The bank revoked its provisional settlement to prevent it from becoming final payment.  The bank can return the item itself or give notice, but also must observe the time limits—midnight the day after receipt.  Here, the bank observed the midnight deadline.  If you revoke the provisional settlement, under 4-215 the bank is not liable and has not been deemed to have paid the check.  Illustrates part of the rule in 4-215, if you revoke before the midnight deadline, you will not have been deemed to have finally paid.  

Term
4-301:  
Definition

This section is ONLY applicable when the depository bank is NOT the payor bank:

(1)     Right to revoke under a provisional settlement by returning the item or providing notice of dishonor; (4-301(a))

(2)     Right to reverse any credits that may have been credited to an account; (4-301(b)) Pay attention to the status of the bank:  4-214(a), payor bank also the depository bank (4-214(b))--

Term

 

Problem 9:  When the Empire check is presented, Empire has only $10,000 in its account at the Bank of New York.  If the Bank of New York nevertheless pays the check as a courtesy to Empire, can it recover the balance of $12,178.50 from Empire?

Definition

Yes, under § 4-401 the bank can always charge its customer’s account for an item that is properly payable. From Quaker?  No, the bank may not seek recovery from Quaker because the mistake relates to insufficiency of funds.  Would your answer be different if the Bank of New York pays the check by mistake, without realizing that it was an overdraft? 3-418(b) would govern, which states “if an instrument has been paid by mistake and the case is not covered by subsection (a), the person paying may…recover the payment from the person to whom payment was made.”  However, this subsection is subject to subsection (c) which does not allow the above remedy to be asserted “against a person who took the instrument in good faith and for value”—as Quaker did.  Therefore, the bank would have no rights against Quaker for recovery under 3-418(b).  Under 4-401 the bank may charge against the account of Empire “an item that is properly payable from the account even though the charge creates an overdraft.”  And, Empire will be in debt to the bank that money.  If instead of paying an overdraft by mistake, the Bank of New York has certified an overdraft by mistake, would its mistake justify it in refusing to pay Quaker?  If bank certifies the check by mistake, the bank accepts the check.  The bank can still go after Empire.

Term

 

Problem 10: Quaker and Empire both bank at the Bank of New York.  Empire’s account has only $10,000 in it.  Quaker deposits the Empire check along with the other checks in the Bank of New York, using a deposit slip similar to that furnished by Philadelphia National.  Later on the same day, when the check is put through the regular computer run, it is rejected as drawn on insufficient funds.  What are the Bank of New York’s rights against Quaker?  

Definition

The Bank of New York is the payor and depositary bank.  The item is not paid when Quaker presents the check to The Bank of New York.  The Bank issues a provisional credit.  This check did not go through the collection process b/c the depository bank is also the payor bank—so it was not necessary.  4-215(a)(3) says that a bank is deemed to have finally paid an item when you fail to revoke a provisional settlement by the midnight deadline.  Failure to do so means that you will have been deemed to have finally paid.  What options are available here? 

  1. 4-301: Revoke provisional settlement under 4-215(a)(3) to ensure that final payment is not made.  4-301 states that a payor bank may “revoke the settlement and recover the settlement if, before it has made final payment and before its midnight deadline, (1) it returns the item, (2) returns an image of the item, or (3) sends a record providing notice of dishonor if the item is unavailable for return.”  The bank may either provide notice of dishonor or return the item—in order to indicate revocation.  But it also has to act by the midnight deadline.
  2. 4-214(c) talks about reversing provisional credits for a depositary bank.  “A depositary bank that is also the payor may charge back the amount of an item to its customer’s account or obtain refund in accordance with the section governing return of an item received by a payor bank for credit on its books (4-301).”  (c) applies to a depositary bank that is also a payor bank. (a) applies only to collecting banks.  4-214(c) is appropriate here.  4-301(b) states that “if a demand item is received by a payor bank for credit on its books, it may return the item or send notice of dishonor and may revoke any credit given or recover the amount thereof withdrawn by its customer, if it acts within the time limit and in the manner specified in subsection (a).” (return the item by the midnight deadline)

Term
A payor bank satisfies the forward collection test if 
Definition

if it returns a check as quickly as a similarly situated bank would collect a forward-collection check (1) of similar amount, (2) drawn on the same depositary bank, and (3) received for deposit by a similarly situated bank by noon on the banking day following the banking day on which the check was presented to the payor bank.  Underlying this test is the assumption that since forward collection is usually swift, the return process will be expeditious if it approximates the speed of forward collection.  The expeditiousness of a payor bank’s return is measured against community standards established for forward collection—must follow the swiftness of the community standard.  (ex: if community uses courier, must use courier)

Term
Under either the two-day/four-day test or the forward collection test, the payor bank may 
Definition

may return a check directly to the depositary bank.  The provision is significant b/c direct return was not authorized by the Code in every state.  Alternatively, the payor bank may route the check to a Federal Reserve Bank or any returning bank that agrees to handle the check expeditiously.  This is also a change from the old provision, which did not allow return through a non-collecting bank.  

Term

 

Problem 11:  Empire’s account has only $10,000 in it.  On Wednesday, the Bank of New York receives the check payable to Quaker directly from the Federal Reserve Bank in Philadelphia, to which Philadelphia National had sent it.  The Bank of New York mislays the check for two days and on Friday, when the check is put through the regular computer run, it is rejected as drawn on insufficient funds.  What are the Bank of New York’s rights against Quaker?  

Definition

?  Here the Bank waited too long.  Consequences are that the bank will be accountable for the item and you can sue as damages.  Important reason of case: NOTE:  Didn’t satisfy obligation under 4-302 and would be liable.  The Bank of New York has not dealt directly with Quaker.  One fact different from problem 10:  payor bank is not the depositary bank.  Which party would the Bank of NY normally have rights against? Its customer—the depositor.  The main issue in this problem is with the midnight deadline rule—bank is required under 4-302 to take necessary action in a timely fashion.  Under 4-302, bank should either pay the funds or dishonor the item.  4-302 also comes with certain time limitations—if an item is presented to the payor bank, the bank is accountable for the demand item, in any case in which it is not also the depositary bank, if it retains the item beyond midnight of the banking day of receipt without settling for it OR does not pay or return the item or send notice of dishonor until after its midnight deadline.  This is where the distinction between depository banks that are payor banks and depository banks that are not payor banks comes into play. 

  • The Bank was supposed to take action on the check by the day it received the check if there was no provisional settlement.  §§ 4-215(a)(3), 4-301(a).  If there was a provisional settlement it had until the midnight deadline. Even if there was a provisional settlement, the bank missed the midnight deadline because it received the check on Wednesday and did not act until Friday.  The midnight deadline was Thursday.  Thus, there was a final payment and the bank is liable unless there was an excuse under 4-109.  According to the facts there is no delay or excuse, therefore the payor bank is liable.
  • Look to common law first to determine if bank can recover: no; not under the common law; then look at 3-418(c): if payee took item in good faith then can’t recover from the person paid.  Common law does not allow bank to recover from person paid when it is the bank’s mistake.

Term
First Wyoming Bank.  
Definition

Nature of the delay: usually the courier goes a certain route but couldn’t so sent it to the airlines to deliver and it wasn’t delivered on time.  Action against the payor bank: alleging they did not comply w/ midnight deadline of notice of dishonor. They blame it on the failure of the airline to get the notice to the bank. Court said everything was in place except that the bank did not use diligence b/c they did not make effort to trace the checks when arrived. Also other possibilities: courier could have taken a different route. Bank did not exercise all due diligence required. 

Term
CC 229.38(b) Paying Bank’s Failure to Make Timely Return.  
Definition

“If a paying bank fails both to comply with CC 229.30(a) and to comply with the deadline for return under UCC 4-302, in connection with a single nonpayment of a check, the paying bank shall be liable under either CC 229.30(a) or such other provision, but not both.”

 

Term
When the Midnight Deadline Begins to Run.  
Definition

.  According to 4-104(a)(10), the payor bank’s midnight deadline begins to run on “the banking day on which it receives the relevant item.”  But UCC 4-108 allows the bank to “fix an afternoon hour of 2 pm or later ass a cutoff hour for the handling of money and items and the making of entries in its books…an item or deposit of money received on any day after a cutoff hour so fixed or after the close of the banking day may be treated as being received at the opening of the next banking day.”

 

Comment to 4-108:  Each of the huge volume of checks processed each day must go through a series of accounting procedures that consumes time.  Many banks found it necessary to establish a cutoff hour to allow time for these procedures to be completed within the time limited imposed by Article 4…If the number of items received either through the mail or over the counter tends to taper off radically as the afternoon hours progress, a 2 pm cutoff hour does not involve a large portion of the items received but at the same time permits a bank using such a cutoff hour to leave its doors open later in the afternoon without forcing into the evening the completion of its settling and proving process. 

 

Term
Branches and the Midnight Deadline
Definition
 If a check drawn on one branch of a bank is deposited in another branch of the same bank, is the midnight deadline determined by the time that the check is received by the branch in which it is deposited or the branch on which it is drawn?  UCC 4-107 states that “a branch or separate office of a bank is a separate bank for the purpose of computing the time within which and determining the place at or to which action may be taken or notices or orders shall be given under this Article and Article 3.”
Term
Liability Not Absolute.  The payor bank’s liability under UCC 4-302 is not 
Definition

based on fault.  Nonetheless, subsection (b) gives the payor bank the defense that the “person seeking enforcement of the liability presented or transferred the item for the purpose of defrauding the payor bank.”   Comment 3 to 4-302 states, “decisions that hold an accountable bank’s liability to be “absolute” is rejected.  A payor bank that makes a late return of an item should not be liable to a defrauder operating a check kiting scheme.”  Banks will be successful in defending against parties who initiated collection knowing that the check would not be paid.

Term

Comments to 4-302:  

Definition

  1. If a bank is both payor and depositary bank then it has until its midnight deadline—“midnight on its next banking day following the banking day on which it receives the relevant item (4-104(a)(10))—to revoke any settlement if it has not already made payment.
  2. If a payor bank (which is NOT also the depositary bank) retains the item beyond midnight of the banking day of receipt without settling for it, it is accountable for payment.  If may avoid accountability either by settling for the item on the day of receipt and returning the item before its midnight deadline under 4-301 or by returning the item on the day of receipt.
  3. If a payor bank (regardless of whether it is also depositary bank) does not pay or return the item or send notice of dishonor until after its midnight deadline, it is accountable for payment.

The heavy burden of 4-302 serves two important commercial functions:  it expedites the collection process by motivating banks to process instruments quickly, and it firms up the provisional credits received by each bank in the collection chain, thereby supplying a key element of certainty in commercial paper transactions.

Term

Suppose that a bank receives for deposit a $255,000 check drawn on it, erroneously encodes the amount as $25,000, and credits the payee and charges the drawer in that amount Months later, when the error is discovered, the drawer has closed its account and gone out of business.  Is the bank liable to the payee for the $230,000? 

 

Definition

The only actual mistake was the bank’s—the bank retained the check past its midnight deadline.  Under 4-302, the bank is therefore accountable for the face amount of the check.

Term
Suppose that the depository bank made the encoding error before forwarding the check to the payor bank, is the payor bank liable to the payee for $230,000?
Definition

4-209(a) states that “a person who encodes information on or with respect to an item after issue warrants to any subsequent collecting bank and to the payor bank that the information is correctly encoded.” 4-209(c) states that “a person to whom warranties are made under this section and who took the item in good faith may recover from the warrantor as damages for breach of warranty an amount equal to the loss suffered as a result of the breach, plus expenses and loss of interest incurred as a result of the breach.”

 

Term
Would it make any difference if the drawer had over $230,000 in his account?
Definition

Yes, b/c then the payor bank could withdraw the owing $230,000 and it would not have any losses.  The payor bank’s rights against the depositary bank depend on whether the payor bank has suffered a loss.  Since the payor bank can debit the drawer’s account, the payor bank only has a loss to the extent that the drawer’s account is less than the full amount of the check.  There is no requirement that the payor bank pursue collection against the drawer beyond the amount in the drawer’s account as a condition to the payor bank’s action against the depositary bank for breach of warranty. 

 

Term
David Graubert, Inc. v. Bank Leumi Trust Co.  
Definition

Issue: whether a payor bank is relieved of liability for retaining such an instrument beyond its “midnight deadline” when it does so pursuant to an agreement concordant with a practice among banks for a payor to hold a previously dishonored item long enough to provide an opportunity for sufficient funds to be deposited by the drawer to meet the check.  Check was returned once for insufficient funds.  Payee redeposited check with its bank, which chose to forward it directly to payor bank on a collection basis.  The second time around Leumi held the item for seven days pursuant to the new agreement, acknowledged in the “advice to customer” slip.  Evidence that it was customary for payor banks to hold onto items that had once been dishonored—Graubert suing the payor bank for not adhering to the midnight deadline.  Essentially becomes an agreement between Graubert and the payor bank b/c Graubert gave his consent to the agreement by depositing the check.  No provisional credit was given to Graubert at the time—if therefore our interest in the midnight deadline is the firming up of provisional credits, then here it does not raise any issues. 

·         With drafts, can resubmit – each time presented must comply with midnight deadline rule 

·         Had modified midnight deadline rule pursuant to memo (bank’s customary procedure)

·         Agreement did amount to a modification of the midnight deadline, therefore bank could not be held liable

  • Where do we find the statutory basis for amending the agreement? 4-103(a) states that “the effect of the provisions of this Article may be varied by Agreement.”  Agreement was between payor bank and depository bank—agreement between two banks—so how does that relate to the payee?  The payor bank is the bank of the customer that issued the check—the depository bank acts as agent for the payee.   
  • Holder could always go after the drawer—under 3-414—that is why this holding is fair.  

Term

 

4-215:  Final Payment of Item by Payor Bank; When Provisional Debits and Credits Become Final.  

Definition

a)       An item is finally paid by a payor bank when the bank has first done any of the following:

(1)     paid the item in cash; (Kirby case)

(2)     settled for the item without having a right to revoke the settlement under statute, clearing-house rule, or agreement; or

(3)     made a provisional settlement for the item and failed to revoke the settlement in the time and manner permitted by statute, clearing-house rule, or agreement.

b)       If provisional settlement for an item does not become final, the item is not finally paid. 

Term
Problem 12:  Philadelphia National, after giving Quaker a provisional credit, negligently mislays the check and does not forward it for three days.  It is dishonored because Empire has become solvent.  Philadelphia National returns the check to Quaker and revokes the credit.  Quaker disputes Philadelphia National’s right to do this, arguing that the Empire check would have been paid if Philadelphia National had used due care.  Quaker draws checks against the disputed $22,178.50 credit which Philadelphia National marks “N.S.F” and dishonors.  Quaker sues Philadelphia National for wrongful dishonor.  What result? 
Definition

Philadelphia National is both a depository and collecting bank.  4-105(5) defines a collecting bank as “a bank handling an item for collection except the payor bank.” 4-105(2) defines “depositary bank” as “the first bank to take an item even though it is also the payor bank, unless the item is presented for immediate payment over the counter.”  4-202 only concerns “collecting banks:” “a collecting bank must exercise ordinary care in: (1) presenting an item or sending it for presentment; (2) sending notice of dishonor or nonpayment or returning an item to the banks transferor after learning that the item has not been paid or accepted…(4) notifying its transferor of any loss or delay in transit within a reasonable time after discovery thereof.” Further, under 4-202(b) “a collecting bank exercises ordinary care under subsection (a) by taking proper action before its midnight deadline following receipt of an item, notice or settlement.”  The bank did not comply with 4-202.  Waited three days.  Competing arguments for wrongful dishonor suit:  bank will make one argument (has authority to revoke the settlement given by it, and charge back the amount of any credit given even if it is negligent by failing to exercise ordinary care; however, the bank is liable for any loss resulting from the delay: (4-214)), and Quaker would make the other (if item had been promptly presented, it would have been paid).  An item is wrongfully dishonored that is properly payable—there are sufficient funds. 4-214(d): Comment 5 to 4-214(d) states that “subsection (d) relating to charge-back applies irrespective of the cause of the nonpayment, and of the person ultimately liable for nonpayment.  Thus charge-back is permitted even if nonpayment results from the depositary bank’s own negligence.” (Although the bank is still liable for “any loss resulting from the delay.”)  Quaker’s wrongful dishonor suit doesn’t have much merit under 4-214(d).  The bank acts well within its rights under 4-214 and would be able to avoid liability for wrongful dishonor, but would be liable under 4-402 by failing to act by the midnight deadline 4-202.  For a bank, under 4-202 your basic damages are the amount of the item.  But 4-402 the damages would include consequential damages plus actual payment of item. 4-103(e) states that “the measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount that could not have been realized by the exercise of ordinary care.”

Term
Problem 13:  Philadelphia National and The Bank of New York use a system of electronic processing of checks in which the depositary bank “encodes” the amount of the check in a third “field” on the bottom right hand corner of the check, so that it can be “read” by a machine at the payor bank.  Philadelphia National (depositary bank) mistakenly encodes the Empire check as a $32,178.50 check, and it is paid in that amount by The Bank of New York (payor bank).  Shortly thereafter, The Bank of New York dishonors several other checks drawn by Empire which would have been honored had the mistaken overpayment not been made.  What are the rights of Empire (drawer) and The Bank of New York (payor)? 
Definition

4-209(a) states that “a person who encodes information on or with respect to an item after issue warrants to any subsequent collecting bank and to the payor bank or other payor that the information is correctly encoded.”  Subsection (c) states that “a person to whom warranties are made under this section and who took the item in good faith may recover from the warrantor as damages for breach of warranty an amount equal to the loss suffered as a result of the breach, plus expenses and loss of interest incurred as a result of the breach.” 

Comment 2 states:  “a misencoding of the amount on the MICR line is not an alteration under section 3-407(a) which defines alteration as changing the contract of the parties…intervening collecting banks would not be liable to the payor bank for the depositary bank’s error.  If a drawer wrote a check for $2,500 and the depositary bank encoded $25,000 on the MICR line, the payor bank could debit the drawer’s account for only $2,500.  The payor bank may hold the depositary bank liable for the amount paid out over $2,500 without first pursuing the person who received payment.  If a drawer wrote a check for $25,000 and the depositary bank encoded $2,500, the payor bank becomes liable for the full amount of the check.”  The payor bank’s rights against the depositary bank depend on whether the payor bank has suffered a loss.  The payor bank has a loss only to the extent that the drawer’s account is less than the full amount of the check.  There is no requirement that the payor bank pursue collection against the drawer beyond the amount in the drawer’s account as a condition to the payor bank’s action against the depositary bank for breach of warranty.  Here the payor bank may only debit the amount of the original check, as not mis-encoded, and may pursue Philadelphia National bank liable for the amount paid out over the original amount of the check.  Empire has a right to be credited back with its funds minus the actual amount of the check.   

Term
Doctrine of last clear chance:  
Definition
“It would seem unlikely that the payor bank that had dishonored an over-encoded item, which if correctly encoded would have been paid, could recover damages arising out of the wrongful dishonor from the encoding bank in such circumstances, for presumably thepayor bank would have had the “last clear chance” to examine the item about to be returned and to discover the error.  Does the doctrine of “last clear chance” apply to our problem?
Term
On Friday, January 29, after The Bank of New York has paid the Empire check, a $15,000 check drawn by Quaker is presented to Philadelphia National for payment.  Quaker has in its account, exclusive of the $22,178.50 credit from the Empire check, only $10,000.  Philadelphia National dishonors the $15,000 check and returns it to the payee with a return item ticket marked “uncollected funds.”  Can Quaker recover from Philadelphia National for wrongful dishonor?  Would the answer be different if the Empire check had been drawn on Penn Bank, another bank in Philadelphia?  
Definition

When would the parties succeed on wrongful dishonor?  4-402 states that dishonor occurs where the item is properly payable.  At the time the check was presented there had to be insufficient funds in the account, so it’s important to know that there is only $10,000 in the account with a $22,178.50 credit.  Credit terms comes from the provisional settlement—a credit. Were funds in account sufficient to cover the check?  Add the total of the account—appx. $37,000—would be enough to satisfy the claim.  Counter argument:  can only draw from the $10,000 b/c the credit is provisional.  The credit is provisional until final payment.  The day of the deposit—on page 127—was January 26.  The issue of payment is not an issue at all—it was finally paid.  Clearly this is a non-local check (transferred from New York to Philadelphia) Reg CC. 229.12 (pg. 1777) Two day/five day rule in this case.  Two day/four day rule deals with returning checks.  Here, we are focusing on the depositary bank—Philadelphia National—and 229.12 imposes restrictions on Philadelphia National, specifically when it should make the funds available for withdrawal by the customer.  Local check—no later than the second business day following the deposit. For a non-local check, five days.  Here, the depositary bank should make the funds available for withdrawal no later than the following Tuesday.  Quaker argues by Friday item should have been paid, but by Friday Quaker only should have had access to $10,000—bank was still well within its rights to not have the funds available for withdrawal.  Bank is justified and item would not have been properly payable under 4-402.  

Term

(A) Negotiation

Definition

Note: The Code in UCC 3-201 and 3-203 distinguishes between transfer and negotiation.  Although the transferee acquires “any right of the transferor to enforce the instrument,” a mere transferee cannot qualify as a holder in due course.  According to 3-201(b), “if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder,” while if it is “payable to bearer it may be negotiated by transfer of possession alone.”

Term
3-201: Negotiation: “Negotiation” 
Definition

” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder. If an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.  If an instrument is payable to bearer, it may be negotiated by transfer alone.

Term
3-203: Transfer: (
Definition

: (a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving a delivery the right to enforce the instrument.  (b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.

Term
4-403 any person authorized to draw on the account has a right to stop payment—recognized in favor of the customer.  How would this affect the drawer’s liability?  
Definition
If the drawer stops payment and the bank dishonors the check, it is called “dishonor.”  3-414(b) drawer would be primarily liable, so if its dishonored by a stop payment—the holder can proceed against the drawer.  What happens when the seller sues the buyer, and buyer raises as a defense to payment, that the goods are defective and he has a breach of warranty claim?  What is difference between personal and real defense?  Real defenses are listed in 3-305: illegality, infancy, duress, and fraud and execution.  Any other defense would be classified as a personal defense (claims in recoupment?).  Holder in due course takes subject to real defenses, but not subject to personal defenses.  If seller qualifies as a holder in due course (but he is not, there would need to be a transfer of the instrument (3-203(a) definition of transfer)—definition excludes the initial issuance), he will cut off this defense.  Moreover, there is a K between buyer and seller—and buyer cannot circumvent his obligations under the K.
Term
Effect of the transfer of an instrument
Definition

:  you are really providing the transferee with right to payment.  You acquire all the rights the transferor had.  If you were to transfer an order instrument, w/o an indorsement, it is still a transfer, and the transferee acquires a right to enforce the instrument.  The transferee, even where it has not been indorsed, can cut off personal defenses, if the transferor had such rights. The only time you cannot apply the rights as a holder of due course is if as transferee you engage in illegal conduct. 

3-203(b) is the rule: You may not qualify as a holder b/c of the lack of endorsement, but that will not prevent you from enforcing your rights.  Comment 2. Under 3-203 the transferee succeeds to all the rights under the instrument.  

Term
Hypo re: 3-203:  
Definition

Buyer delivers check to seller, seller indorses it to a third party, and the TP transfers it to John Doe w/o endorsement. John doe comes in as a transferee—b/c no indorsement—not a holder.  How much can John claim (check is for $100, claim for recoupment by buyer for $30)?  John doe succedds toall the rights of the transferor who qualifed as a holder in due course (third party was a holder in due course); John Doe, like TP, has the right to cut off all personal defenses.   Transferee can have rights as a holder in due course even if he does not qualify as a holder.

Term
It is the intention of the drawer that controls who should be paid.  Set-aside the actual description on the document.  3 possibilities for indorsing the check
Definition

(1) person can sign under the name on the instrument; (2) can sign under the parties’ real name, or (3) under both, according to 3-110(a) (drawer’s intent that determines beneficiary, and drawer’s intent controls when errors in description) and 3-204(d).  

Term
Instead of depositing the Empire check in its account for collection, Quaker asks Philadelphia National to “cash” it, and Philadelphia National pays Quaker $22,178.50 in cash.  Quaker, however, neglects to indorse the check and Philadelphia National does not notice.  The check is then dishonored by the Bank of New York b/c Empire has stopped payment.  Empire stopped payment on discovering that the cans are defective and on justifiably refusing to take and pay for them.  Quaker is now insolvent.  Can Philadelphia National recover the $22,178.50 from Empire?
Definition

Under 3-201 negotiation only occurs, when you have an order instrument payable to an identified person, upon transfer of possession and indorsement.  If indorsement has not occurred, then the bank has not become a holder. However, under 3-203 a transfer is made when the check is delivered by a person other than the issuer for the purpose of giving the recipient the right to enforce the instrument.  Transfer of an instrument, under 3-4203(b), whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course.  Comment 2 to 3-203 states that “if the transferee is not a holder b/c the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument under 3-301 if the transferor was a holder at the time of transfer.  Because the transferee’s rights are derivative of the transferor’s rights, those rights must be proved.  Proof of a transfer to the transferee by a holder is proof that the transferee has acquired the rights of a holder.  Under subsection (b) a holder in due course that transfers an instrument transfers those rights as a holder in due course to the purchaser—the only exception is where fraud or illegality is involved, which is not relevant here.

                4-205 states that, “if a customer delivers an item to a depositary bank for collection:  (1) the depositary bank becomes a holder of the item at the time it receives the item for collection if the customer at the time of delivery was a holder of the item, whether or not the customer indorses the item, and, if the bank satisfies the other requirements of section 3-302 (for value, in good faith, w/o notice), it is a holder in due course.”  Accordingly, Philadelphia National became a holder in due course b/c Quaker was a holder in due course and transferred all of its rights to the bank.

Can Philadelphia National recover the $22,178.50 from Empire?

4-215 the bank would have been deemed to have paid the item b/c it paid Quaker in cash.

 

Term
Problem 2: Instead of depositing the Empire check in its account for collection, Quaker asks Philadelphia National to “cash” it.  Philadelphia national is willing to do so, but notices that Empire, evidenctly by an oversight has made it payable to “Quaker Supply Co.”  How should Philadelphia National have Quaker indorse it if it cashes it?
Definition

3-204(d) states that “if an instrument is payable to a holder under a name that is not the name of the holder, indorsement may be made by the holder in the name state in the instrument or in the holder’s name or both, but signature in both names may be required by a person paying or taking the instrument for value or collection.”  In each case the indorsement is effective.  Comment says the “accepted commercial practice is to indorse in both names.”  Does it take any risk if Quaker so indorses it?  The risk that Philadelphia National runs is that Quaker is not the entity that the issuer intended to have the check.  3-110(a) states that “the person to whom an instrument is initially payable is determined by the intent of the issuer of the instrument.  The instrument is payable to the person intended by the signer even if that person is identified in the instrument by a name or other identification that is not that of the intended person.”  (Issuer means the maker or drawer of the instrument.)

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