Professional Documents
Culture Documents
It applies only to negotiable instruments that meet the requirements laid down in
Section 1 of the law. Otherwise, any case not provided for shall be governed by
the provisions of existing legislation, or in default thereof, by the rules of the law
merchant (Under Section 196, the law merchant refers to the custom of
merchants or rules that have been developed under common law, consisting of
primarily of usages of trade previously proven in court or ratified by legal
decisions. It is also known as the Custom of Merchants). Thus, the Civil Code,
the Bouncing Check Law and the Revised Penal Code provisions on Estafa
applies only to supply any deficiencies in cases not covered by the Act.
1. In the case of GSIS vs. Court of Appeals, 170 SCRA 533, the Supreme
Court on the issue as to whether private respondents were accommodation
parties under Section 29, it said that the arguments were misplaced as the
promissory note executed was not negotiable because it was not payable to
order or to bearer.
2.1 Note that a check is not another kind of negotiable instrument, rather it is a
form of a bill of exchange.
PN BOE
2 parties: maker and payee 3 parties: drawer, payee,
drawee/acceptor
Promise to pay Order to pay
Maker is primarily liable Drawee/acceptor is primarily liable
Secondarily liable: indorsers and Secondary liable: drawer, indorsers and
persons negotiating by mere delivery persons negotiating by mere delivery
Maker is liable primarily and NO Drawers liability is secondary and
conditions precedent is required attaches ONLY upon compliance with
conditions precedent:
a) Presentment
b) Dishonor
c) Proceedings (for dishonoring)
BOE Check
3
1. While not legal tender (Article 1249, Civil Code and Section 52 of the New
Central Bank Act, RA 7653 which provides that only notes and coins issued by it
possess legal tender power, and as for coins up to PHP 50.00 for denominations
of 25 centavos and above and up to PHP 10.00 for denominations of 10
centavos and below), they are recognized substitutes for money as its
negotiability allows it be transferred from one hand to another, subject however to
the financial ability of the parties to honor the instrument.
1.1 Note though that in Fortunado vs. Court of Appeals, 196 SCRA 26, the
delivery of checks is sufficient in the exercise of the right of redemption. The right
of redemption is a privilege and is not an ordinary obligation. Hence Article 1249
does not apply.
3.1 Note also Section 60 of RA 7653 that states that checks representing
demand deposits do not have legal tender power and their acceptance in the
payment of debts, both public and private, is at the option of the creditor.
Provided, however, that a check which has been cleared and credited to the
account of the creditor shall be equivalent to delivery to the creditor of cash.
There is thus greater security brought upon the instrument as whoever takes it
has greater chances of recovery as more people are liable on the instrument and
consequently, raises its level of acceptability.
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1. It must be in writing;
The basic GUIDING PRINCIPLE as laid down in Section 10 is that the instrument
need not follow the language of the law, but the terms must be sufficient to
clearly indicate an intention to conform to the requirements of the law. Hence,
the use of a foreign language or grammatical errors does not destroy
negotiability.
Illustrations:
3. As a general rule, bills, notes and other instruments of similar nature are
not subject to be varied or contradicted by parol or extrinsic evidence pursuant to
the rule that long experience that written evidence is so much more certain and
accurate than that which rests in fleeting memory only, that it would be unsafe,
when parties have expressed the terms of their contract in writing, to admit
weaker evidence to control and vary the stronger and to show that the parties
intended a different contract from that expressed in the writing signed by them
BUT if there is an allegation of fraud in the execution of promissory note, such as
when the note having a face value of P50,000.00 was alleged to have been
signed by the makers at only P5,000.00, where parol contemporaneous
agreement was the inducing and moving cause of the written contract, it may be
shown by parol evidence; but it must be established by clear and convincing
evidence, mere preponderance of evidence not even being adequate. (Inciong v.
Court of Appeals, 257 SCRA 578)
2. Persons who write their names on the face of a note are makers and are
liable as such, and their solidary liability is made certain by the presence of the
phrase joint and several. (Republic Planters Bank v. CA, 216 SCRA 738)
3. The promise must be found in the instrument itself; the mere existence of
a debt does not amount to a promise. The use of the word order is deemed
equivalent to promise.
and a period (one that is certain to happen though the time when it will happen is
not known). An instrument embodying an obligation that is subject to a condition
is non-negotiable; whereas, that with an obligation subject to a period is
negotiable.
Illustrations:
1.
If it rains on 28 June 2002 is a condition, one which may or may not happen.
The instrument is non-negotiable. Under the last sentence of Sec. 4, if it indeed
rains on 28 June 2002 and the condition is thereby fulfilled, the instrument which
was originally conditional and non-negotiable does not thereby become
negotiable by the fulfillment of the condition.
When X will die is not certain, but X is sure to die. This is a period. The
instrument is negotiable.
B, upon presentment for payment, may pay immediately ignoring whether the
condition is fulfilled. Should B choose to pay immediately and the condition is not
fulfilled, then the quasi-contract of solutio indebiti arises. (Article 2154, Civil
Code).
distinguish between the use of the words fix and indicate. If the instrument
fixes the fund from where payment has to be made, so that payment cannot be
made from other funds, the instrument is not negotiable. But if the instrument
merely indicates the fund from where payment is to be made, so that the obligor
will still be liable even if the indicated fund is depleted, then the instrument is
negotiable. NOTE: (a) A check of itself does not operate as an assignment of any
part of the funds to the credit of the drawer with the bank, and the bank is not
liable to the holder, unless and until it accepts or certifies the check. (Section
189) (b) A treasury warrant is not a negotiable instrument because it is to be paid
from a particular fund. (Abubakar v. Auditor General, 81 Phil. 359 [1948]) (c)
Indication of a particular fund out of which reimbursement is to be made. (d) A
statement of the transaction which gives rise to the instrument under Section 3(b)
like:
SEE: Elizalde & Co., Inc. v. Bian Trans. Co. (CA) 58 O.G. 5886 (1960)
Illustrations
As provided for under Sec. 2, the following are still negotiable instruments, to
wit:
1.
Pay to A or order P500 with interest at 12% per
annum.
2.
Pay to A or order P500 payable in monthly
installments of P100.
3.
4.
Pay to A or order P500 and in the event of
litigation, I agree to pay court costs and attorneys
fees.
5.
Pay A or order $500.
While the agreement to pay in foreign exchange is declared null and void and of
no effect, what the law specifically prohibits is payment in currency other than
legal tender; it does not defeat a creditors claim for payment, but to be made in
lawful Philippine legal tender. SEE: Ponce v. Court of Appeals 90 SCRA 533
(1979)
Where the parties stipulate payment in foreign currency, the rate of exchange is
determined not at the time of making of the instrument but at the time of
payment, and not the rate at the time the obligation was incurred. SEE: Kalalo v.
Luz 34 SCRA 337 (1970)
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(Sgd.) B
(Sgd.) B
(Sgd.) B
The specification before a specified event, would render the instrument non-
negotiable because the date of maturity can be determined only after the note
has become overdue.
determinable future since the term of the period would have to be set by the
courts under Articles 1180 and 1197, Civil Code.
(a) Drawn payable to the order of a specified person or to him or his order.
The payee is not the maker, drawer or drawee.
(Sgd.) B
[A is neither maker, drawer or drawee.]
(b) Drawn payable to the drawee as payee. Here being both the drawee and
the payee, the drawee can pay himself upon maturity from the funds belonging to
the drawer in his possession: once accepted is equivalent to a promissory note in
favor of the drawer.
(Sgd.) B
To: C
(c) Maker as payee. Here the maker promises as follows I promise to pay to
the order of myself, 10,000 : the instrument is not complete until the maker
endorses under Section 184.
(Sgd.) B
(d) Pay
Drawer as payee: this to B or order
authorizes P500. to pay himself/drawer.
the drawee
(Sgd.) B
To: PNB
(Sgd.) B
(Sgd.) B
(Sgd.) B
In case the instrument is endorsed, then it will be like this:
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(g) When the instrument is payable to order, the payee must be named or
otherwise indicated therein with reasonable certainty. This requirement is
imposed as if there is no payee, there is NOBODY WHO COULD GIVE THE
ORDER OR AUTHORITY TO COLLECT. THERE IS NO ONE WHO CAN
ENDORSE THE DOCUMENT AND CAN THUS BE SAID TO BE NOT
NEGOTIABLE.
It would seem in Equitable Banking Corp. v. IAC, 161 SCRA 518 (1988), the
contravention of this rule (such as when the check is payable to Equitable
Banking Corporation order of A/C of Cavilled Enterprises, Inc.) would not render
the instrument non-negotiable but would merely place the burden of ambiguity to
the person who caused it under Art. 1377 of the Civil Code.
Pay to A or order.
(Sgd.) B
Pay to the order of A.
(Sgd.) B
(Sgd.) B
(Sgd.) B
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(Sgd.) B
The clause and such fact is known to the person making it so payable, does not
require that it should be the maker himself who is chargeable with the notice.
Otherwise, the whole provisions would be ineffective in practically every case
where the purpose of the person drawing the check was fraudulent. (Mueller &
Martin v. Liberty Ins. Bank, 219 S.W. 465, 187 Ky 44 [1920]).
(d) When the name of the payee does not purport to be name of any person.
(Sgd.) B
(Sgd.) B
2. Note however, that under Section 14, the omission of drawee may be filled
in later on.
The general rule under Section 5 is that an instrument is rendered non negotiable
if it contains a promise or order to do anything in addition to the payment of
money as what transpires is that while the promise or order to pay money, the
other thing would have to be assigned BUT BY WAY OF EXCEPTION, the
following provisions do not affect negotiability
Confession of judgment clauses are void as being against public policy to give a
person his day in court; however, such nullity does not affect the negotiability of
the instrument. SEE: National Bank v. Manila Oil Refining Co., 43 Phil. 444
[1922].
Where an agreement stipulates for the confession of judgment prior to any actual
litigation the stipulate is void for being contrary to public policy. However, if the
creditor sues, the debtor can go to court and only then confess judgment. This is
valid if done by the debtor himself. SEE: In Traders Insurance v. Dy Eng Biok,
104 Phil. 806 (1958)
The TEST: The test of negotiability is whether or not the promise would give rise
to a cause of action for breach of contract if the additional act is not done. If it
does, the instrument is rendered non-negotiable.
1. Non-dating of instrument.
4. Bears a seal.
Under Sec. 52, a requisite for a holder in due course is that instrument is
complete and regular on its face. Section 6 therefore provides for certain
omissions that do not destroy completeness or regularity, as other portions of the
law supplement these omissions. Thus:
(Sgd.) B:
This instrument has omissions: (a) no date; (b) no place of payment; and (c) no
statement of value received.
Note Date: This is supplied by Sec. 17(c) which states that where instrument is
not dated, it will be considered dated as of time it was issued.
In any other case if presented to the person to make payment wherever he can
be found, or if presented at his last known place of business or residence.
1. The sum expressed in words takes precedence over the sum expressed in
numbers; except where the words are ambiguous or uncertain, then reference to
the figures should be made.
(Sgd.) B
(Sgd.) C
(Sgd.) B & C
(Sgd.) B & C
Held: B and C are liable solidarily since I dominates. SEE: PNB v. Concepcion
Mining, 5 SCRA 745 (1962)
2. The delivery of the complete instrument by the maker or the drawer to the
payee or holder with the intention of giving effect to it
A. PRESUMPTION AS TO DATE:
5. The instrument is not invalid for the reason only that it is ante- dated or
post-dated, provided this is not done for illegal or fraudulent purpose. The person
to whom instrument so dated is delivered acquires the title thereto as of the date
of delivery under Section 12.
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Ante-dating is when the instrument contains a date earlier than the true date of
issuance, while post-dating is when the instrument contains a date later than the
true date of issuance.
Illustrations:
(Sgd.) B
The holder of such an instrument is authorized to insert the correct date. But if
the holder inserts the wrong date, the maker shall be liable on wrong date as
penalty for his neglect in leaving the instrument undated.
(Sgd.) B
To: C
Accepted
(Sgd. C)
The RATIONALE for the rule is that if the true date is not allowed to be inserted,
one will not know when the instrument will be due.
ALSO, the insertion of the wrong date does not avoid the instrument in the hands
of a subsequent holder in due course, but as to him, the date so inserted is to be
regarded as the true date. The insertion of wrong date avoids the instrument as
to person making such insertion. (Bank of Houston v. Day, 145 Mo. Appl. 410,
122 SW 756). The reason being that the one who signs such instrument
furnishes the means of fraud and is thus estopped to deny liability thereon.
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B. CONCEPT OF DELIVERY:
1. Before a discussion of Sections 14, 15, and 16, the concept of delivery
must be understood because the making, drawing , accepting , and indorsing of
an instrument has for one of its common elements THE DELIVERY OF THE
INSTRUMENT FOR THE PURPOSE OF NEGOTIATION, and the other is,
VALUABLE CONSIDERATION.
LIKE SO:
Issue is the first delivery of the instrument complete in form, to a person who
takes it as a holder. (Sec. 191).
Immediate parties are those who are immediate in the sense of knowing or
being held to know the conditions or limitations placed upon delivery of
instrument. (Liberty Trust Co. v. Tilton, 105 NE 605). It means privity, no
proximity. (Howard Nat. Bank v. Wilson, 120 Atl. 889).
5. For a holder in due course, a valid delivery thereof by all parties prior to
him so as to make them liable to him is conclusively presumed. (Sec. 16).
Illustrations:
To C: B (2)
Accepted
(Sgd.) C (3)
(Sgd.) B
CATEGORIZING HOLDERS
2. HOLDER FOR VALUE- Under Section 26, he is one who has given a
valuable consideration for the instrument issued or negotiated to him. He is such
not only as regards the party to whom value has been given but also in respect to
all those who became parties prior to the time when value is given. Example: If
the maker issues a note to the payee without consideration, it is subsequently
endorsed by the payee to another without consideration, and is subsequently
indorsed with consideration, the last endorsee is deemed to be a holder for value
not only as to his indorser, but all other parties subsequent to the indorsement.
EFFECT IS: If the holder for value is also a holder in due course, he may enforce
payment on the instrument against all parties. IF NOT, prior parties can set up
the defense of absence of consideration.
3. HOLDER IN DUE COURSE- Under Section 52, he is one who has taken
the instrument under the following conditions:
a. That it is complete and regular on its face. Complete means that the
instrument is not wanting in any material particular, while Regular means that
there is no visible or apparent alteration on the face of the instrument
b. That he became the holder of it before it was overdue, and without notice
that it has been previously dishonored, if such was the fact. Before it is overdue
means before maturity.
c. That he took it in good faith and for value. Good faith means that he has
no knowledge of the facts which render it dishonest for him to take the negotiable
paper BUT the knowledge required is not that necessary to show exact truth but
such that tends to show that there was something wrong with the transaction.
d. That at the time it was negotiated to him he had no notice of any infirmity
in the instrument or defect in the title of the person negotiating it. The title of the
person negotiating it is defective when he obtains (OR ACQUIRES) the
instrument or any signature thereto by FRAUD, DURESS, OR FORCE OR FEAR
OR OTHER UNLAWFUL MEANS, OR FOR AN ILLEGAL CONSIDERATION-
OR- when he NEGOTIATES the instrument in BREACH OF FAITH (Example:
negotiation after he has been paid) or CIRCUMSTANCES AMOUNTING TO
FRAUD (Example: negotiation with knowledge that it will not be paid)
Under Section 59, there is a prima facie presumption that every holder is a holder
in due course BUT the burden of proof shifts when it is shown that the title of the
person negotiating the instrument is defective BUT it does not apply to a party
who became bound on the instrument prior to the acquisition of defective title.
Parties are immediate when they are in direct contractual relationship with each
other, they are remote if they are not in direct contractual relation to each other,
and they are prior parties if they became such prior to a subsequent party.
There are two basic kinds of defenses that may be interposed, they are:
REAL DEFENSES- they are those available against all parties, both immediate
or remote, including holders in due course. They are such because they attach to
the instrument itself.
Examples of real defenses:
b. Illegality of contract when declared by law (see Art. 1409, ibid.); except
where the maker or drawer is himself a party to the illegality; thus, a note for a
gambling debt (an illegal consideration) is a mere personal defense (see Sec.
55);
f. Duress amounting to forgery as where one takes the hands of another and
forces him to sign his name (Espy v. Bank, 18 Wall. 604; First Nat. Bank v.
Northwestern Bank, 28 N.E. 729);
j. Other infirmities appearing on the face of the instrument (Sec. 52.); and
PERSONAL DEFENSES - are those which grow out of the agreement or conduct
of a particular person in regard to the instrument which renders it inequitable for
him, though holding the legal title, to enforce it against the party sought to be
made liable but which are not available against a holder in due course. (see Sec.
55). They are called personal defenses because they are available only
against that person or subsequent holder who stands in privity with him. (Ogden,
23
op.cit., p. 309). In other words, they can used only between original parties or
immediate parties or against one who is not a holder in due course.
b. Filling up of blanks not in accordance with the authority given and within
reasonable time (Sec. 28);
o. Usury because the contract of loan itself is not void but only the agreed
interest (see Sec. 7, Usury Law; Art. 1413, Civil Code; and
p. Want of authority but agent has apparent authority. (see Art. 1869, ibid)
negotiable instrument to make it complete, like blanks for date, due date, name
of the payee, amount, or rate of interest
Whether or not the instrument is filled up in accordance with the authority given,
remember that endorsers are liable on their warranties.
2. With regards parties whose signature appeared prior to delivery, the non-
delivery of an incomplete instrument is a valid defense, not only between the
original parties but also against a holder in due course. It is therefore a real
defense, available even against a holder in due course.
Example:
A makes a note, with the name of the payee in blank. X steals the note and
inserts his name as payee. He then indorses it to Y, then Y to Z, who is a holder
in due course. Z cannot enforce the note as it is not a valid contract in the hands
of any holder.
Considering that As signature was placed thereon before delivery, he does not
assume any responsibility whatsoever. Such is a REAL DEFENSE- ALTHOUGH
A must rebut the prima facie presumption of delivery by proof to the contrary.
25
X is liable as an indorser and as the party responsible for the theft, completion
and negotiation of the instrument.
4. The maker or drawer may however be estopped from claiming the above
defense if there should be negligence on his part.
5. It was ruled that while drawer of a check owed a duty to the bank on which
the check was drawn to guard against the escape of a check signed in blank
which had been stolen, he owed no such duty to the purchaser of the check and
therefore, the drawer cannot be held liable to such purchaser provided that the
incomplete instrument was not yet delivered. (Linicks v. Nuttwig & Co., 140 App.
Div. 265).
Example:
If the note/bill is stolen by the payee, who endorses it to A, who in turn endorses
it to B, who in turn endorses it to C.
If C is aware of the theft, as against him and the payee, the maker/drawer may
prove that there was no delivery or that delivery was not authorized as they are
immediate parties against whom a claim that delivery to be effectual must be
made either by or under the authority of the person making, drawing, or indorsing
as the case may be
If the note/bill is in the hands of a holder in due course, the maker/drawer cannot
prove the theft or delivery under a condition, as there is a conclusive presumption
of delivery. NOTE: THE PHRASE- until delivery of the instrument for the purpose
of giving effect thereto WOULD TEND TO EXCUSE THE MAKER/DRAWER IF
THERE WAS NO ACTUAL DELIVERY FOR ANY PURPOSE OF THE
INSTRUMENT AND ABSENT ANY FAULT OR NEGLIGENCE, EQUITY
DICTATES THAT HE NOT BE HELD LIABLE.
6. Where the debtor who drew two checks payable to his creditor but never
delivered them, but that a third-party was able to collect the proceeds of the
checks by forging the endorsement of the creditor-payee, the creditor did not
gain standing against any person to recover on the checks since he acquired no
interest over them by reason of delivery. SEE: Development Bank of Rizal v.
Sim Wei, 219 SCRA 736 (1993)
The rules to determine liability as far as signatories and in cases of forgery are as
follows:
a. Trade Name One who signs using a trade or assumed name will be
liable to the extent as if he had signed in his own name under Section 18
B pp X Agent signs by procuration. This is notice to the whole world that the
agent is signing with very limited authority.
The contract of endorsement of an infant is not void, and that his endorse has the
right to enforce payment from all parties prior to the infant endorser; the
incapacity of the infant cannot be availed of by prior parties. (Murray v.
Thompson, LRA 1917B 1172, 188 SW 578). However, it does not destroy the
right of such an infant endorser to disaffirm under rules of infancy. (Ibid.)
In both instances, endorsements are voidable valid until annulled so that they
pass good title. Therefore, parties prior to minor or corporation cannot escape
liability by setting up as defense the incapacity of one of endorsers.
Before a discussion of the rules, it is best to classify the kinds of forgeries that
can take place , they are:
1. The instrument is not declared totally void nor are the genuine signatures
thereon rendered inoperative. IT IS ONLY THE FORGED SIGNATURE THAT IS
DECLARED INOPERATIVE. Hence: rights still exist and may be enforced by
virtue of the instrument as between parties whose signatures were not forged.
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2. A forged instrument just prevents any subsequent party from acquiring any
rights as against any party whose name appears prior to the forgery. Rights will
exist and may be enforced as between subsequent parties BUT no one can
acquire a right as against parties prior to the forgery, who also have rights and
may enforce them as against each other.
Example:
Pay to A
(Sgd.) P
Pay to B
(Sgd.) A (forged by X)
Pay to C
(Sgd.) B
e. A can recover from M and P because his rights against them were not
affected by the forgery. The signatures of M and P are genuine and they are liale
to A on their contract.
The other parties, including the maker, prior to the party whose signature is
forged are not also liable to any holder. The instrument being payable to order, it
can be negotiated only by indorsement completed by delivery. But since the
indorsement is forged, it is inoperative and, therefore, it cannot operate to
transfer any right or title over the instrument.
29
Holder did not acquire any rights to retain the note, give discharge
therefore, or enforce payment as against party whose signature is
forged and parties prior to him, including maker.
Any transferee of forger merely acquires whatever rights he had against prior
parties, hence, transferee likewise acquires no rights against prior parties
The reason is that the instrument being originally payable to bearer, it can be
negotiated by mere delivery. (Section 30.). In other words, indorsement is not
necessary to the title of the holder. Hence, even if the indorsement is forged, the
forgery may be disregarded. The forged indorsement does not prevent the
transfer of title since the holder may just strike out the forged indorsement. (Sec.
48). The only defense available is want of delivery but this defense can be raised
only against a holder not in due course. (Sec. 16).
c. Where bill payable to order. Where the bill is payable to order, the party
whose indorsement is forged, is not liable to any holder even a holder in due
course. The forged indorsement is wholly inoperative.
Where the signature of the payee was forged, the collecting bank is liable to the
payee and must bear the loss because it is its legal duty to ascertain that the
payees endorsement was genuine before cashing the check.
If the drawee pays under a forged indorsement, the drawer is not liable on the bill
and the drawee may not debit the drawers account. If it does, it shall have to
recredit the amount of the check to the account of the drawer. A bank is bound
to know the signature of its customers (drawers), and if it pays a forged check it
must be considerd as making the payment out of its own funds and cannot
ordinarily charge the amount so paid to the account of the depositor (see Sec.
189).
Where, however, the checks are received merely for collection and deposit, the
bank, as agent, cannot be expected to know or ascertain the genuineness of al
prior indorsements. (Jai-Alai Corp vs. Bank of P.I., 66 SCRA 29 [1975].) But by
stamping on checks accepted by it for deposit its guarantee that all prior
endorsements and/or lack of endorsements guaranteed, a collecting/presenting
bank thereby makes the assurance that it has ascertained the genuineness of all
prior indorsements. (Associated Bank vs. Court of Appeals, supra.) So even if
the indorsement on the check deposited by the collecting banks client is forged,
the collecting bank is bound by its warranties as an indorser and cannot set up
the defense of forgery as against the drawee-bank. (Associated Bank vs. Court
of Appeals, supra.)
Facts: Two (2) of the Companys Citibank checks were prepared made payable
to the Commissioner of Internal Revenue (CIR), which were both crossed
checks. The checks were turned around by the Companys confidential
employees and were forged to facilitate deposit with PCIBank in exchange for
PCIBank managers checks, in collusion with an organized syndicate. PCIBank
now wants to hold Company liable for the forged checks, the act of fraud being
facilitated by its confidential employees.
7. NEGLIGENCE DISCUSSED:
xxx
1. Where the signature on the instrument is affixed by one who
does not claim to act as an agent and who has no authority to bind
the person whose signature he has forged; and
2. Where the signature is affixed by one who purports to be an
agent but has no authority to bind the alleged principal.
In both cases, the signature is wholly inoperative and so no
right can be acquired through the forged signature. Payment made
through or under such forged signature is ineffectual and does not
discharge the Instrument. A person whose signature was forged as
maker, drawer, payee or indorsee of a note or check was never a
party or never gave his consent to the contract which gave rise to
the instrument. Since his signature does not appear in the
instrument, he cannot be held liable thereon by anyone.
(Gempesaw vs. Court of Appeals, 218 SCRA 682 [1993].) Forgery
is, therefore, a real defense even against a holder in due course.
(see Sec. 58)
But when an instrument has been materially altered and is in the hands of a
holder in due course, not a party to the alteration, he may enforce payment
thereof according to its original tenor.
37
The law however makes certain exceptions as to the effect of material alteration.
It does not discharge the instrument as against: (a) a party who has made the
alteration, and (b) a party who authorized or assented to the alteration, and (c)
indorsers who indorsed subsequent to the alteration.
EXAMPLE:
(3) Right of holder in due course. A material alteration avoids the instrument
in the hands of one who is not a holder in due course as against any prior party
who has not assented to the alteration. But if an altered instrument is negotiated
to a holder in due course, he may enforce payment thereof according to its
original tenor regardless of whether the alteration was innocent or fraudulent.
(see Sec. 62.)
EXAMPLE:
Section 125 defines what will constitute a material alteration. It is any alteration
which changes (a) The date; (b) The sum payable, either for principal or
interest;(c) The time or place of payment;(d) The number or the relations of the
parties;(e) The medium or currency in which payment is to be made;(f) Or which
adds a place of payment where no place of payment is specified, or any other
change or addition which alters the effect of the instrument in any respect, is a
material alteration.
38
3. Under Section 27, where a holder has a lien on the instrument, arising
from a contract or by implication of law, he is deemed a holder for value to the
extent of his lien. HE IS ONE WHO HAS TAKEN A NEGOTIABLE INSTRUMENT
AS COLLATERAL SECURITY FOR A DEBT
1. If the amount of the instrument is more than the debt secured by such
instrument, the pledge is a holder for value to the extent of his lien. He can
collect the full value of the instrument, and apply the same to the payment of the
debt but he must deliver the surplus to the pledgor. (see Art. 2118, Civil Code.)
Example:
In this case, A is a holder for value to the extent of P800.00 which is also
the extent of his lien. On the maturity of the note, even if the debt of P800.00 is
not yet due (see Art. 2118, ibid.), A may recover the full amount of P1,000.00,
holding the surplus for P, the pledgor.
2. If, between the pledgor and the party liable on the instrument, there are
existing defenses, then the pledgee can collect on the instrument only to the
extent of the amount of the debt.
Example:
3. If the amount of the instrument is less than or the same as the debt
secured by such instrument, the pledge is a holder for value for the full amount
and may, therefore, recover all.
Example:
4. If the defenses of the party liable on the instrument are real defenses, then
the pledgee can recover nothing upon the instrument.
Example:
Under Section 26, a HOLDER FOR VALUE is one who has given a valuable
consideration for the instrument issued or negotiated to him. He is such not only
as regards the party to whom value has been given but also in respect to all
those who became parties prior to the time when value is given. Example: If the
maker issues a note to the payee without consideration, it is subsequently
endorsed by the payee to another without consideration, and is subsequently
indorsed with consideration, the last endorsee is deemed to be a holder for value
not only as to his indorser, but all other parties subsequent to the indorsement.
Absence of consideration means a total lack of any valid consideration for the
contract, in consequence of which the alleged contract must fall. (Klein v.
Roteman, 6 Ohio App. 145.)
Example:
Failure of consideration means the failure or refusal of one of the parties to do,
perform or comply with the consideration agreed upon. In other words,
something was agreed upon as consideration but for some cause, such agreed
consideration failed to materialize.
Section 29 provides that an accommodation party is one who has signed the
instrument as maker, drawer, acceptor, or indorser, without receiving value
40
therefor, and for the purpose of lending his name to some other person. Such a
person is liable on the instrument to a holder for value, notwithstanding such
holder at the time of taking the instrument knew him to be only an
accommodation party.
once the instrument has been negotiated for value, the accommodation party is
liable according to the face of his undertaking, the same as if he were financially
interested in the transaction.
Examples:
appearing on the instrument by parol evidence (see Maulini vs. Serrano, 28 Phil.
640 [1914]; Velasco vs. Liuan & Co., 43 Phil. 195 [1922]);
NEGOTIATION
CONCEPT OF NEGOTIATION
3. By Negotiation
METHODS OF NEGOTIATION
WHAT IS AN INDORSEMENT
It is the writing of the name of the indorser on the instrument with the intent to
transfer title to the same.
1. Under Section 31, the indorsement must be written on the instrument itself
or upon a paper attached thereto. The signature of the indorser, without
additional words, is a sufficient indorsement.
THE EXCEPTION is when an instrument has already been paid in part, it may
be endorsed to the residue.
NOTE: That an indorsement which purports to transfer to the indorsee a part only
of the amount payable does not operate as a negotiation of the instrument; it
operates merely as an assignment. SEE: Montinola v. PNB, 88 Phil. 178 [1951]
KINDS OF INDORSEMENTS
Pay to X.
(Sgd.) A
This rule does not apply to instruments originally payable to order, but because
the only or last indorsement is an indorsement in blank.
Section 40, when read with Section 9, shows that of the five (5) kinds of bearer
instruments discussed under Sec. 9, Section 40 applies only to the first four
types, those that are payable to bearer on their face. These four types of bearer
instrument, even if endorsed specially, they retain their character as bearer
44
instrument and may still be negotiated by mere delivery; the special endorsement
may be ignored.
Illustration:
X may present the instrument for payment before 28 June 2002, but B may tell X
to: Wait for 28 June 2002 OR Pay X PHP500; but if it does not rain on 28 June
2002, X must return the money on the principle of solution indebiti.
But all subsequent indorsees acquire only the title of the first indorsee under the
restrictive indorsement.
Illustrations:
45
Under letter (a), it completely destroys the negotiable character of the instrument
and it may no longer be negotiated.
Under letter (b), the rights of X to negotiate is limited because the same must be
within the scope of his authority as agent.
Under letter (c), X may negotiate the instrument only within the scope of his
authority as trustee.
Illustration:
When referring to restrictive indorsement, we refer only to the first kind: Pay to
X only; because this is the only type of restrictive indorsement that completely
destroys the negotiability of the instrument.
Illustration:
46
(Sgd.) A
The qualified endorser guarantees only the genuineness of the instrument but
does not guarantee its payment. He will be liable only if signature of the maker
turns out to be a forgery. He will not be liable if maker refuses to pay.
Held: The bank cannot be allowed to recover against the depositor. While
ordinarily, the depositor could have been held liable on the basis of his
warranties, since a person negotiating an instrument by delivery or by qualified
endorsement are: (a) that the instrument is genuine and in all respects what it
purports to be; (b) that he has a good title to it; and (c) that all prior parties had
capacity to contract.
a. This rule does not apply to indorsements payable to two or more payees
severally (e.g., Pay to the order of A or B), which under Section 8(c) may be
negotiated by the endorsement of one payee.
Illustration:
(Sgd.) A (Sgd.) A
47
Compare this with Sec. 8: Pay to A or X or order P500, which may be indorsed
by A alone or by X alone. The instrument may be payable in the alternative but
the endorsement to two or more persons is void. If payable in the alternative on
its face, the instrument is less confusing; but when the indorsement is alternative
there would be confusion.
b. Section 41 states but who are not partners but this clause should be
ignored because it contemplates the American Law on Partnership, where the
partners are solidarily liable and hence only one partner may be made liable to
collect the whole amount so that only one needs to sign the indorsement.
This is different from Philippine Law which provides that partners are jointly
liable; hence, both must sign the endorsement.
A holder may at any time strike out any endorsement which is not necessary to
his title. The endorser whose endorsement is truck out, and all endorsees
subsequent to him, are thereby relieved from liability on the instrument. (Section
48)
2. Transferee has also the right to require the transferor to endorse the
instrument.
3. The time for determining whether the transferee is a holder in due course
is as of the time of actual endorsement, not at the time of delivery. (Section 49)
OTHER INDORSEMENTS
RIGHTS OF A HOLDER
1. The rights of a SIMPLE HOLDER are: (a)He may sue thereon in his own
name (b) payment to him in due course will discharge the instrument
2. The rights of a HOLDER IN DUE COURSE are: (a) He may sue on the
instrument (b) to receive payment on the instrument and payment in due course
will discharge the instrument(c) Under Section 57, he holds the instrument free
from any defect in title of prior parties (d) he holds the instrument free from
defenses available to prior parties among themselves (e) enforce payment on the
instrument to the full amount against all parties liable thereon.
1. The liabilities of the MAKER are: (a) he will pay the note according to its
tenor (b) the payee exists, and (c) the payee has capacity to endorse. The maker
is thus PRECLUDED from setting up the defenses that the payee is fictitious or
that payee was insane, a minor or a corporation acting ultra vires (Section 60).
1. By signing his name on the bill as DRAWER, he ADMITS that (a) the
payee exists (b) payee has capacity to endorse (c) drawee will accept or pay or
both according to the tenor of the bill (d) in case of non-acceptance or non-
payment, the drawer will pay (Section 61)
49
2. NOTE that the drawers obligation to pay is not absolute. The bill must be
dishonored and the necessary proceedings of dishonor must be duly taken.
4. The nature of the drawers liability is thus secondary in favor of (a) the
holder, and (b) any of the endorsers intervening between the holder and the
drawer who is compelled to pay by the holder.
LIABILITIES OF AN INDORSER
1. An indorser is one who has placed his signature upon an instrument other
than as the maker, drawer or acceptor UNLESS he clearly indicates by
appropriate words his intention to be bound in some other capacity.
Illustration:
(Sgd.) B
50
Illustration:
(Sgd.) A (1)
_________________
Pay to Y.
(Sgd.) X (2)
_________________
Pay to Z.
(Sgd. Y (3)
(b) solidary
1. The parties primarily liable are the Maker in a promissory note and the
Acceptor in a bill of exchange.
2. The parties who are secondarily liable are the Drawer and an Indorser.
To make parties secondarily liable requires (a) presentment for payment to the
Maker or the Acceptor and (b) notice of dishonor. The absence of either will
discharge persons secondarily liable.
It is defined as: (a) the production of a bill of exchange to the drawee for his
acceptance, or to the drawee or acceptor for payment; or (b) the production of a
promissory note to the party liable for its payment. (Windham Bank v. Norton, 22
Conn. 213, 56 Am. Dec. 297).
2. But if instrument is, by its terms, payable at a special place and the person
primarily liable is able and willing to pay it there at maturity, such ability and
willingness are equivalent to tender of payment on his part. (Section 70). This
pertains to a situation where the instrument is payable at a particular institution or
office, such as a bank and not when the instrument is payable in a certain
locality.
1. In the three cases required by law, presentment for acceptance to the drawee
or negotiation within a reasonable time after acquisition is required (Secs. 143
and 144), unless excused. (Sec. 148). In all other cases, there is no need for
presentment for acceptance.
3. But if the bill is accepted, or if the bill is not required to be presented for
acceptance, it must be presented for payment to the persons primarily liable
(Sec. 71), unless excused. (Sec. 82).
(a) Every negotiable instrument is payable at the time fixed therein without grace.
(Sec. 85).
(b) When the day of maturity falls upon a Sunday or a holiday, the instrument is
payable on the next succeeding business day. (Sec. 85).
(c) When the day of maturity is on a Saturday, presentment for payment shall be
made on the next succeeding business day; except that demand instrument may,
at the option of the holder, be presented for payment before 12:00 oclock noon
on Saturday when that entire day is not a holiday. (Sec. 85).
(d) Where the instrument is payable at a fixed period after date, after sight, or
after the happening of a specified event, the time of payment is determined by
excluding the day from which the time is to begin to run, and by including the
date of payment. (Sec. 86).
53
Illustration:
18 June 2002
Present this on 28
10 days after date June 2002 for payment
Pay A or order P500. because that is its due
date.
(Sgd.) B
paying it. (Sec. 74). Demand over the telephone therefore cannot
constitute proper presentment.
(c) The makers right to exhibition of a note is waived when he does not
demand to see the note and he refuses payment on some other
grounds. (Greensteen v. Kucharski, 140 Atl. 482; Foster East Jordan
Realty Co., 177 N.W. 987).
5. Where Notice Must Be Sent: Where a party has added an address to his
signature, notice of dishonor must be sent to that address; but if he has
not given such address, then the notice must be sent as follows:
(a) Either to the post office nearest to his place of residence or to the
post office where he is accustomed to receive his letters; or
(b) If he lives in one place, and has his place or business in another,
notice may be sent to either place; or
But where the notice is actually received by the party within the
time specified by law, it will be sufficient, though not sent in accordance
with the requirement of this section. (Sec. 108).
TO WHOM NOTICE GIVEN: Notice of dishonor may be given either to the party
himself or to his agent in that behalf. (Sec. 97).
2. Notice to Party Dead: When a party is dead, and his death is known to the
party giving notice, notice must be given to personal representative, if
there be one, and if with reasonable diligence, he can be found. If there be
no personal representative, notice may be sent to the last residence or
last place of business of deceased. (Sec. 98).
4. Notice of Persons Jointly Liable: Notice to joint parties who are not
partners must be given to each of them, unless one of them has authority
to receive notice for the others. (Sec. 100).
1. Notice may not be given before the maturity of the instrument. Notice may
be given on the date of maturity, provided that instrument has been
presented for payment and it has been dishonored.
2. Where Parties Reside in Same Place: Where the person given and the
person to receive notice reside in the same place, notice must be given
within the following periods:
(a) If given at the place of business of the person to receive notice, it msut
be given before the close of business hours on the day following;
(b) If given by mail it must be deposited in the post office in time to reach
him in usual course on the day following. (Sec. 103).
3. Where Parties Reside in Different Place: Where the person giving and the
person to receive notice reside in different place, the notice must be given
within the following periods:
(b) If given otherwise than through post office, then within the time that
notice would have been received in due course of mail, if it had been
deposited in post office within the time specified. (Sec. 104).
56
4. Where a party receives notice of dishonor, he has, after the receipt of such
notice, the same time for giving notice to antecedent parties that the
holder has after the dishonor. (Sec. 107).
WAIVER OF NOTICE:
1. Notice of dishonor may be waive, either before the time of giving notice
has arrived or after the omission to given due notice, and the waiver may
be expressed or implied. (Sec. 109).
(a) Where the drawer and drawee are the same person;
(b) When the drawee is a fictitious person or a person not having capacity
to contract;
(c) When the drawer is the person to whom the instrument is presented for
payment;
(d) Where the drawer has not right to expect or require that the drawee or
acceptor will honor the instrument;
(a) When the drawee is a fictitious person or does not have capacity to
contract and the endorser was aware of this at the time of
endorsement;
57
(b) Where the endorser is the person to whom the instrument is presented
for payment;
(c) Where the instrument was made or accepted for his accommodation.
(Sec. 115).
PROTEST:
2. But protest is not required except in the case of foreign bills of exchange.
(Sec. 118).
4. By any other act which will discharge a simple contract for the payment
of money: (a) remission; (b) novation; (c) confusion or merger.
(b) The rule only applies to discharge by the act of the holder and not to
discharges by operation of law, such as insolvency.
6. By any agreement binding upon the holder to extend the time of payment
or to postpone the holders right to enforce the instrument.
(b) His liability is similar (but not exactly the same) to that of a guarantor.
1. The party secondarily liable who pays will have the effect of discharging
the party paying.
2. The party paying is remitted to his former rights against parties prior to
him; if he was formerly a holder in due course, even if at the time of
payment he already had notice of the defects of title, he can enforce his
rights against any of the prior parties free from defenses.
2. A renunciation does not affect the rights of a holder in due course without
notice. (Sec. 122).
60