PROVISIONS OF NEGOTIABLE INSTRUMENT LAW THAT DOES NOT CONFORM

WITH CRIMINAL LAW

A. Section 98. Notice where party is dead. - When any party is dead and his
death is known to the party giving notice, the notice must be given to a 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 the deceased.1

Under this section when a party sought to be charged is dead, the notice of
dishonor must be given to his personal representative if there is one, after finding him
with the use of reasonable diligence. If after reasonable diligence the personal
representative cannot be found the notice can be sent to the last residence or business
of the deceased. Hence, in case of death the liability with regards to the dishonor
instrument is limited only to the personal representative of the dead.
This does fit in with the rules of court wherein in case of death of the accused, his
criminal liability will be extinguish, however an independent civil action with regard to its
civil liability may be instituted against his estate, legal representatives or his heir. As
stated under the Rules of Court:

The death of the accused after arraignment and during the pendency of
the criminal action shall extinguish the civil liability arising from the delict.
However, the independent civil action instituted under section 3 of this
Rule or which thereafter is instituted to enforce liability arising from other
sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against said
estate, as the case may be. The heirs of the accused may be substituted
for the deceased without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor
heirs.2

1 Sec. 98, Negotiable Instruments Law

2 Rule 111, Sec. 4, Rules Of Court

 Hence, the notice of dishonor in order for the liability of the deceased subsist, must
not be limited to his representative but also to his heirs.
B. Section 112. When notice is dispensed with. - Notice of dishonor is dispensed
with when, after the exercise of reasonable diligence, it cannot be given to or
3
does not reach the parties sought to be charged.

This section pertains to the fact whereby after reasonable diligence in searching
the person or the party to be held liable cannot be found the notice of dishonor is
dispensed with. It is an exception to the rule of presenting a notice of dishonor to a party
liable.
Notice of dishonor is the process of bringing either verbally or by writing to the
knowledge of the drawer or indorser of an instrument the fact that a specified negotiable
instrument upon proper proceeding taken has not been accepted or has not been paid
and the party notified is expected to pay it. 4 Under the Negotiable Instruments Law,
notice of dishonor must be given to the drawer and each indorser for them to become
liable, for any drawer or indorser to whom such notice is not given is discharge. 5
In case of B.P. 22, the same rules applies whereby only upon a notice of
dishonor where a party can be held liable. As stated under B.P. 22:

Evidence of knowledge of insufficient funds. - The making, drawing and

issuance of a check payment of which is refused by the drawee because
of insufficient funds in or credit with such bank, when presented within
ninety (90) days from the date of the check, shall be prima facie evidence
of knowledge of such insufficiency of funds or credit unless such maker or
drawer pays the holder thereof the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within (5)
banking days after receiving notice that such check has not been paid by
the drawee.6
3 Section112, Negotiable Instruments Law

4 Martin v. Brown, Ala. 442.

5 Section. 89, Negotiable Instruments Law

6 Section.2 B.P. 22
Pursuant to this section in order for a party to be held liable, there must be an evidence
to show that he has knowledge of insufficient funds with regards to his issued check,
and it can only be done by making a notice of dishonor. Hence, unlike in the Negotiable
Instruments Law wherein there is an exception which it can dispensed a notice of
dishonor, such contradicts B.P. 22 for in order for the person to be held liable in case of
B.P. 22, a notice of dishonor must be served to the accused.

C. Section. 109. Waiver of notice. - Notice of dishonor may be waived either

before the time of giving notice has arrived or after the omission to give due
notice, and the waiver may be expressed or implied.

Waiver is the intentional abandonment of a known right. 7 With reference to notice

of dishonor, waiver is the willingness on the part of the drawer or the indorser concerned
to be bound by it even without due notice dishonor. This section allows a stipulation
made by the party that a case there is dishonor by non-acceptance or non-payment, the
notice of dishonor before the time of giving notice or after omission to give due notice.
Nevertheless, parties liable to the instrument are still bound by it.

In B.P. 22 cases however, there can be no waiver of the notice of dishonor. As

explain earlier, in order for a person to be held liable an evidence to prove his liability is
to furnish him a notice of dishonor. As explain in one case, there are two elements of
B.P 22 required to be established. To wit: a) the issuer had received a written notice of
dishonor and b) within five days from receipt of the notice, the issuer failed to pay the
amount of the check or to make arrangements for its payment. 8 Thus, if there is a waiver
of notice, the first element will not be established. Therefore, a waiver of notice of
dishonor does not conform in case of B.P 22 or the bouncing checks law.

7 De leon, Hector, The laws on Negotiable Instruments (Quezon City: Rex printing
Company). 2013, p. 222

8 Erlinda San Mateo vs. People of the Philippines, G.R. No. 200090, March 6, 2013
 D. Section 97. To whom notice may be given. - Notice of dishonor may be given
either to the party himself or to his agent in that behalf. 9

Under Negotiable Instruments Law, notice of dishonor may be given to the party
himself, such as the drawer, or the indorsers of the instruments, or to his agent in that
behalf. The agent in this case in order to be allowed to receive a notice of dishonor must
be authorize for the receipt gave rise or creates liability.
However, in B.P. 22, a notice of dishonor must be given only and directly to the
party liable itself and not his agent. This is the ruling in several cases held by the
Supreme Court. As held in one case a notice of dishonor personally sent to and
received by the accused is necessary before one can be held liable under B.P. 22 10.
Moreover, it was also held in another case that The notice of dishonor must be actually
received by the issuer of the check. The Court has consistently ruled that receipts for
registered letters, including return receipts, do not themselves prove receipt. They must
be properly authenticated to serve as proof of receipt of the letters, claimed to be a
notice of dishonor.11
The reason why the notice of dishonor must be duly received by the person liable
to the instrument and not the agent on his behalf, is because once the person received
a notice of dishonor, such is a sufficient evidence that he incurs knowledge on that fact
that there is an insufficiency of his funds and must act upon it. Thus, the fact that under
the Negotiable instruments law a notice of dishonor can be received by the agent
contradict to what B.P. 22 requires.

E. Section 22. Effect of indorsement by infant or corporation.- The indorsement

or assignment of the instrument by a corporation or by an infant passes the
property therein, notwithstanding that from want of capacity, the corporation or
infant may incur no liability thereon.

9 Section 97, Negotiable Instruments Law

10 Lao vs. Court of Appeals, G.R. No. 119178, June 10, 1997

11 San Mateo vs. People of the Philippines

 Under this section of the Negotiable Instruments law minor can raise the defense
of minority as a personal defense in order to be free from any liability or for him not to
incur any liability for under the civil code, contracts entered into by minors are
considered to be voidable.
Nevertheless, under R.A. 9344 or the Juvenile Justice welfare Act, the defense of
minority is not absolute. Under the said act a child above fifteen (15) years but below
eighteen (18) years of age shall likewise be exempt from criminal liability and be
subjected to an intervention program, unless he/she has acted with discernment, in
which case, such child shall be subjected to the appropriate proceedings in accordance
with this Act.12 Pursuant to this section of R.A 9344 there must be a qualification. Thus,
applying it with Negotiable Instrument law, minority must not be an absolute defense.
There must be a qualification wherein if the minor is above 15 and below 18, and act
with discernment, liability must exist and must not be extinguish. And if the minor did not
act with discernment, then liability must be extinguished.

12 Sec. 6, Chapter 2, RA 9344 or Juvenile Justice welfare act