Académique Documents
Professionnel Documents
Culture Documents
(Dear classmates, this is not a transcript. I decided to present Atty. Jimenez’s lecture in bullet points
because it is much easier to read and understand than a transcript. Some parts are paraphrased
because they seem more understandable that way. I also rearranged the sequence of some points.
But I promise that all he said that day are included here. If you want, I can furnish you a copy of
the transcript. – Dot)
Must be in writing
There must be a writing of some kind.
If the instrument was not in writing, there would be nothing to be negotiated or passed from
hand to hand.
Example: You cannot tell someone “Well, you know. You owe me ten million due next month.
But I need money very bad and I can’t wait till next month. I’m willing to discount you for 80%
of the amount due.” That someone will say, “Where’s the receipt? Where is the document?” He
will not listen to you because it is merely a verbal promise to pay.
Must be signed
It is an indication of the party binding himself.
Valid ‘signatures’: Thumbmarks, chops (?) in the case of the Chinese, Koreans and Japanese and
signatures of corporate officers printed through the use of a check-writing machine which is a
common practice with companies.
Problem: Mr. Estrada signs the following check:
Would that be binding? If he intended the name Jose Velarde to be his signature for that
particular transaction, the signature would be binding.
Remember: Whatever symbol is affixed in the instrument, if the party intended that to be his
signature – that would be binding.
Usually the signature of the maker and the drawer can be found in the bottom right hand corner.
But the location is not really crucial. Even if the signature is incorporated in the body of the
instrument, it would be valid. Example:
(b) Must contain an unconditional promise or order to pay a sum certain in money;
This is so that people will know from whom they are supposed to demand payment.
But if the name of the drawee is left blank, it is an incomplete instrument. It can be remedied
by filling up.
§2 – What constitutes certainty as to sum. The sum payable is a sum certain within the
meaning of this act, although it is to be paid. –
(a) With interest; or
When there is a provision for payment in installments with an acceleration clause. That is, if any
installment is not paid then the balance will become due and demandable. Under the law, it is
expressly mentioned that that sum is certain.
Exchange contemplates at least two currencies. That’s why the example given in the book of
Agbayani is wrong because it only mentions one currency. So there must be at least two
currencies.
Example: A client who sells chemicals to a factory in Meycauayan. The buyer was not able to
pay. He sued the buyer. They agreed to compromise and they agreed that they will pay
$60,000 in installments and the parties fixed the rate of exchange at 28:1. and whatever the
rate of exchange, whether it goes up or goes lower, that will be the rate of exchange used for
computing.
The current rate is the rate of exchange computed daily. The law presupposes that merchants
are familiar with the rate of exchange. So when the instrument says “I will pay Jose Cruz
P10,000 in United States currency on December 15, 2001 according to the rate of exchange on
that day” – that would be valid because supposedly businessmen know what will be the rate of
exchange.
Gregorio Araneta case:
FACTS: Gregorio Araneta imported equipment from England. To pay for it, he applies for a
letter of credit with the PNB. So PNB paid the seller in English pounds. Araneta had not
yet reimbursed the bank. Meanwhile the English pound was devalued.
ISSUE: What rate of exchange is to be used in paying the PNB – The rate of exchange when
PNB paid the English exporter or the rate of exchange when Gregorio Araneta is paying?
HELD: The letter credit was consummated when PNB paid the English seller. Therefore it is the
rate of exchange at that time that should be used as basis for computing how much GA
will pay.
The Gregorio Araneta case became relevant again in 1983 when the government went on a
standstill and required the banks to surrender all the dollars. All the banks have no single cent
left. Meanwhile the goods were arriving and the goods are consigned to the banks. The banks
Under Article 2208, as a rule, attorney’s fees cannot be recovered. One exception is when there
is a stipulation. In fact, a party will be more interested in taking an negotiable instrument which
contains a payment for attorney’s fees if it is not paid than one which does not contain such a
stipulation.
Now suppose the promissory note says “I will pay reasonable attorney’s fees if this is not paid at
maturity.” Will that be a negotiable? Yes, because in determining whether the sum payable is
certain, the reckoning point is the date of maturity. If the amount payable before that or after
that is uncertain, that is irrelevant. Thus, if you know on the date of maturity that this is the
amount due that is negotiable. If the amount will become uncertain afterwards because of the
attorney’s fees, this is irrelevant.
Anyway, under the Code of Professional Responsibility, agreement on attorney’s fees is always
subject to the control of the court. Even if the parties stipulate “I will pay 20% attorney’s fees”,
the court can always reduce that. That will not be binding on the court. Even if it says I will pay
reasonable attorney’s fees that will be negotiable because if you pay 20% the court will say that
is unreasonable since this is a simple collection case. Court will reduce it to 10%.
A promise to pay is unconditional even if it is coupled with an indication of the particular fund out
of which reimbursement is to be made or account to be debited.
The fund is not the source of payment but merely the source of reimbursement.
Example: It says “Pay Jose Cruz P10,000 and reimburse yourself from the proceeds of the sale
of my shares of stock in San Miguel Corporation.” That is negotiable. The particular account to
be debited is merely an instruction on how to make the entries in the books. “Debit my
representation allowance.”
An order or promise to pay out of a particular fund is conditional because it presupposes and is
subject to the condition that there are sufficient funds in the source of payment.
Example: “I promise to pay Jose Cruz P10,000 from the proceeds of the sale of my shares in San
Miguel Corporation.” That is not negotiable.
This is why time and again the court has said that a treasury warrant is not a negotiable
instrument because it is payable out of a particular fund. Under the Constitution, no money shall
be paid out of the treasury unless there is an appropriation for that purpose. That’s why it is not
a negotiable instrument.
Case of Abubakar (I’m not sure if this is the title, sounds like it, sorry), which was reiterated in
the Metropolitan Bank case:
FACTS: There was a rural bank in Mindoro, somebody deposited treasury warrants. And this
bank in turn deposited it in Metro Bank where they were maintaining an account.
Metrobank will bring it to the clearing house. This depositor kept nagging them whether
the treasury warrants were already cleared. Everytime he will nag the bank in Mindoro,
that bank will in turn nag Metrobank. Because the depositor kept nagging, out of sheer
exasperation, Metrobank allowed him to withdraw the money. Eventually the warrants
were brought to the clearing house where they were dishonored by the National
Treasurer. Metrobank was running after the bank in Mindoro since under §66 it
warranted that the instrument was genuine and in all respects what it purported to be.
It warranted that the signatures were genuine.
ISSUE: Whether Metrobank can invoke §66.
HELD: No, Metrobank cannot invoke §66 because this is a treasury warrant. It is not a
negotiable instrument. Therefore §66 is not applicable. Metrobank must bear the loss
because it allowed him to withdraw the money.
A reference to the fund which will be the source of payment will not destroy negotiability if
payment is not limited to that particular fund. For instance, the negotiable instruments says
“Pay Jose Cruz or order P10,000. Apply the proceeds from the sale of my shares in San Miguel
Corporation.” From the tenor of that, while there is an instruction to use the proceeds from the
sale of the shares of stocks to pay, payment is not limited to that particular fund.
Instrument is payable at a determinable future time if it is paid at a fixed period. If you will
notice the subsequent provisions are elaborations of §1.
Example: If promissory note, “I promise to pay 30 days from today.” If bill of exchange, “Pay to
Jose Cruz P10,000 or order 30 days after sight or after presentation for acceptance.”
Example: “I promise to pay Jose Cruz or order P10,000 on or before December 15, 2001.”
There are different types of acceleration notes:
(1) One that provides that if any installment that is not paid, the balance will automatically
become due.
By express provision of the law, this is negotiable.
(2) One that says that if the holder feels insecure then the holder can require the maker to put
up securities and if the maker fails to do so, the holder can order the balance be
immediately due and demandable.
Is this negotiable? There are two views:
(a) One view said it is not negotiable because it refers to an undertaking other than to
pay a sum of money – to put up security. And under the law, the obligation must be
purely to pay a sum certain in money. It also argued that the date of maturity is
uncertain because the holder can accelerate it.
(b) The other view said that it is negotiable because the undertaking to put up security is
merely an accessory obligation – to secure compliance with the principal obligation
to pay a sum of money. Plus, the control is actually with the maker since he can
prevent acceleration by putting up extra security.
(3) One that says that if the holder feels insecure, he can accelerate the date of maturity.
There is a conflict of views whether that is negotiable or not. Again, there are two views.
One view said it is negotiable other said it is not but according to JDJ, the better view is
that it is not negotiable because the date of maturity is uncertain.
Here the holder can simply say “I feel insecure” and declare the obligation due. From
the tenor of §4, the option to pay before the maturity – “like I promise to pay on or
before” must be on the maker or the acceptor.
If it is with the holder, the date of maturity becomes uncertain.
The two situations are treated different by the law because if the option is with the
maker and he pays before the date of maturity, the instrument is discharged. Under
§119, therefore all parties who are liable are also discharged.
But if the option is with the holder and he accelerates the date of maturity and the maker
fails to pay, all those not yet liable will become liable joint and severally. Their obligation
will fall due and that in effect is prejudicial to them.
The first situation where the option is with the maker, payment before the maturity date
is beneficial. The parties are not liable. But the second situation is prejudicial. And
people will not be willing to bind themselves in such a situation. That’s why in such a
case, the date of maturity is considered uncertain.
(c) On or at a fixed period after the occurrence of a specified event which is certain to
happen, though the time of happening be uncertain.
Take note that it says “on or after.” Thus, the following: “I promise to pay Jose Cruz or order
10 days before the death of Pablo Reyes.” – is not negotiable. Pablo Reyes has to die first
before he can compute the date of maturity. After Pablo Reyes dies, you count backward ten
days. So what will happen? By the time you are able to fix the date of maturity, the
obligation will be overdue. That is not allowed.
An instrument payable upon a contingency is not negotiable, and the happening of the
event does not cure the defect.
Remember that to determine negotiability, you only look at the four corners and you don’t go
into evidence aliunde.
Philippine Education Company vs. Soriano:
Under Section (§) 5, an instrument which contains an order or promise to do any act in
addition to the payment of money is not negotiable because we said for a negotiable
instrument to be a substitute for money, the obligation must be purely pecuniary in character.
However, Section 5 enumerates provisions which do not affect negotiability:
(a)Authorizes the sale of collateral securities in case the instrument be not paid at
maturity; This is common in cases of pledge or mortgage where there will be a stipulation that if
the obligation secured is not paid, then the property pledged or mortgaged can be foreclosed by the
pledgee or mortgagee
(c) Waives the benefit of any law for the advantage or protection of the obligor; for
instance, rule on venue. There may be a provision there that any action arising therefrom shall be
filed exclusively in the courts of competent jurisdiction in Makati and any other proper venue is
hereby waived. It must stipulate that it will be exclusive, otherwise, the SC has said that that will be
merely permissive.
Remember §13, Rule 39 which says certain properties are exempt from execution like
proceeds from life insurance policies, tools of a carpenter, library of a lawyer to the extent of
P100,000.00- there may be a waiver of such.
(d) Gives the holder an election to require something to be done in lieu of payment of
money. If PN says “I promise to pay to the order of Jose Cruz 100 thou or 500 sacks of rice at the
option of the holder” – this is negotiable because the obligation of the maker to pay cash is absolute
since the holder can always choose to demand cash rather than ask for the delivery of rice.
(a)the negotiable character of an instrument is not affected if, like an old maid, it is
not dated . this is taken care of by §13: the date may be inserted and §17c: it will be dated as of
the date it was issued
(b) Does not specify the value given because under §24, it is presumed value has been
given.
(d) Bears a seal; This is relevant in common law but not in civil law because in common law,
consideration presumed in a contract. However, if it is sealed, consideration is presumed.
(b)In which no time for payment is expressed. In other words, it is simply silent as to when
it will be paid.
Now, the last paragraph says if an instrument is issued, accepted or indorsed when overdue,
it is as regards the person so issuing, accepting or indorsing, payable on demand.
Suppose: a bill of exchange was issued in August 2001 and it is payable on October 15, 2001
and it was indorsed to Jose Cruz by the payee today. It was already overdue. Jose immediately went
to the drawee and presented it for acceptance and the drawee dishonored it. The holder gives the
payee who indorsed it to him notice of dishonor and the payee then claimed he has been discharged
from liability saying because when he presented it for payment, it was too late, it was already
overdue.
NO! because when he indorsed it, it was already overdue. Therefore, as between him and the
indorsee, the date will not be October 15, that will be considered payable on demand. This is only as
between them. The drawer, however, will be discharged. He can claim the presentment for payment
was made out of time and therefore, he has been discharged because that instrument will be
payable on demand only as between the payee who negotiated it out of time and the person to
whom he indorsed it but not with respect to other parties.
§8 says to whom the instrument may be payable to order. How do you make an instrument
payable to order? You make it payable to the order of a specified person or to him or to his order.
“Pay to the order of Jose Cruz” or “Pay to Jose Cruz or his order.”
(b) Payee may be the drawer, like somebody who has a current account and he wants to
withdraw money from it, so he issues a check payable to the order of himself (Jose Cruz) - “Pay to
the order of Jose Cruz.”
So the banks always advise you that you should avoid issuing checks payable to the order of
cash because these are payable to bearer. If they are lost and somebody else can encash it. May be
payable to the order of the maker; Now, the law provides that if the maker issues a PN payable to
the order of himself, that is not complete until and unless he indorses it. Remember the commentary
of Jose Manresa on contracts, “Although the law does not mention this expressly, it is understood
and implied that there must at least be two parties to a contract because the law says consent is one
of the requisites of a contract.” So if somebody makes a PN payable to the order of himself, that is
(c) Payee may be the drawee; like here is somebody who borrowed money from the bank and
he’s maintaining his current account in the same bank and now, he’s going to pay for his loan. He
can issue a check payable to the bank from whom he borrowed money and where he is maintaining
his account.
(d) May be payable to Two or more payees jointly; like “Pay to the order of Jose Cruz AND
Manuel Santos.” or “.. to Mr. AND Mrs. Jose Cruz.”
(e) To One or some of several payees; like “Pay to Jose Cruz OR Manuel Santos.”
(f) The holder of an office for the time being. Like here is somebody, say a business firm
which is paying for its license fees in the city. You say “Pay to the Treasurer of the City of Manila.”
Or is paying for taxes, you say “Pay to the Commissioner of Internal Revenue.”
When the instrument is payable to order, the payee must be named or otherwise
indicated with reasonable certainty. You have this case of Equitable Bank. This fellow Cassals is
a swindler, like that in Montinola in that Philippine Education case, I think he’s the same Montinola
involved in the PNB case (88 Phil). So he went to Edward J. Nell (EJN) and said he was interested in
buying a skidder and he said he was going to pay for it with a domestic letter of credit to be issued
by Equitable Bank. So, EJN was interested because that would be sure payment.
Then, Cassals came back and said the bank was requiring him to put up a marginal deposit
for the Letter of Credit. He asked EJN if it could accommodate him by putting up the marginal
deposit to facilitate the release of the L/C. Well, that should have given EJN a warning because
normally, banks don’t ask for marginal deposits anymore. So, if they ask for it, it means your
financial condition is in bad shape.
Anyway, EJN agreed. They issued a check to be used for the marginal deposit. They put there
“Pay to the order of Equitable Banking Corp. A/C Casville Enterprises.” So, Cassals got the skidder,
got the check, deposited it in the account of Casville Enterprises and after the check was cleared,
withdrew the money. He disappeared with the money and the skidder.
EJN became impatient, it followed up the L/C with Equitable Bank. It said “What letter of
credit?” So, they now sued Equitable Bank. They said it issued the check to be used for the marginal
deposit of the L/C. The check was instead deposited in the account of Casville Ent. With Equitable
Bank and the bank allowed the money to be withdrawn. In other words, EJN said “you (the bank)
allowed the money to be diverted to a purpose different from what we intended it to be paid for,
therefore, we’re suing you.” Now, the SC said, under the negotiable Instruments Law, the payee
must be named with reasonable certainty. Here, it wasn’t clear who the payee was. Was it Equitable
Bank or Casville Enterprises? If it is the bank, in what capacity and for what purpose is the check
being issued? Is it as agent? As trustee? Therefore, the Court said the check was not negotiable. It
wasn’t indicated with reasonable certainty.
But, I think if you ask any businessman, they’d understand A/C to mean “for the account of”
Casville Ent. It means that EJN issued this check payable to Equitable Bank to be applied to an
obligation of Casville Ent. to Equitable Bank. That is how a businessman would interpret this.
In fact, now, the BIR requires you when you pay for your income tax return, you just open an
account with the bank and the bank will just debit your account and remit the money to BIR. But
that wasn’t the rule before so sometimes, there were times that I would buy a manager’s check to
pay for my income tax and the bank will put there “Pay to the order of Commissioner of Internal
Revenue” and places there “for the account of Jack Jimenez” because they said that’s for your
protection. “Hindi naman kayo pipila sa BIR office para magbayad e. You will probably just send one
of the messengers in your office to pay for your income tax.” That notation will prevent the
application of that check to pay for the tax liability of somebody else. That means that it can be used
only for your own tax liability. But, anyway, I think the conclusion of the Court here is correct in the
(b)When it is payable to a person named therein or bearer; “I promise to pay to Jose Cruz
or bearer.”
(c) When it is payable to a fictitious or non-existing person, and such fact was known
to the person making it so payable;
(d) When the name of the payee does not purport to be the name of any person;
In the last three instances, the instrument on its face appears to be payable to order but the
law makes it payable to bearer.
Subsection (c) does not mean a person who does not exist. There may be such a person. It
means that the maker or drawer did not intend that person to receive the proceeds of the negotiable
instrument. That is exemplified in that case of Mueller(?) and Martin vs. Liberty Bank.
Mueller and Martin, a partnership, was maintaining its account with Liberty Bank. Mueller,
one of the partners, wanted to steal money from the partnership and he was authorized checks in
behalf of the partnership. So he signed a check payable to a corporation of which he was the
secretary and then he indorsed that check in behalf of the corporation to himself and deposited the
money. After it was cleared, of course, he withdrew the money.
When Martin, his partner, discovered it, he sued the bank. The theory was that the
indorsement of the check by the corporation to Mueller was not valid because he was not authorized
as secretary to indorse checks by the corporation. Since that indorsement was not authorized,
Mueller, the indorsee, did not get valid title. Therefore, the payment to him was not valid and the
bank should return the money. In effect, this is forgery.
The Court said “No, because when Mueller signed that check, although it was true—there was
really such a corporation in existence, it was not his intention that such corp. should collect the
proceeds of the check. His intention was to steal the money. He didn’t intend the corp. to get the
money so the payee was a fictitious person. Therefore, the check is payable to bearer and since it is
payable to bearer, no indorsement is needed to negotiate it. Mere delivery is sufficient so that the
so-called ‘unauthorized indorsement’ made by Mueller was not necessary to acquire title. It was
payable to bearer so it transferred title to Mueller so he validly deposited it in his account.”
Now, for corporations, usually, you need two signatories, depending on the amount especially
with the rate of inflation now. Usually, our clients will pass a resolution requiring so may signatories
to sign depending on the amount. Let’s say, 50k or less, 1 signature. If it’s a big amount they’d say
2 signatories. The officers complained, every board meeting, there would be brought to them
hundreds of checks to be signed.
Now, if a check has to be signed by 2 officers, then the intention of both signatories must
concur. In that Mueller case, if the check was to be signed by two parties, if Mueller intended to
steal the money but the other signatory did not know it, and thought it was a legitimate obligation,
that will not be payable to bearer. For that designation of the payee to be fictitious, they must have
the same intention.
On the other hand, you have that American Sash and Door Company case. This is a
factory that makes doors, window jams, and the like. There, a payroll clerk named Shoock(?)
padded the payroll. He placed there a lot of fictitious names. They didn’t have such employees. The
officer signing the checks to pay the salaries did not know. He thought they really had such
Letter d. The most common example here is a check payable to the order of “Cash.” Unless
the payee is Johnny Cash.
You have that Ang Tek Lian case. Ang Tek Lian issued a check payable to Lee Hua Hong.
Lee Hua Hong presented it to the bank. It was dishonored for lack of funds. He filed a case for estafa
against Ang Tek Lian. The decision of the SC said he was being charged with estafa for issuing a
rubber check, now called the “bouncing check.” After the war they were called “Douglas McArthur
checks’ because McArthur said “I shall return.”
The defense of Ang Tek Lian was that he did not commit fraud because he did not indorse it
at the back and therefore, the bank will not honor that without my indorsement at the back.
Therefore, when Lee Hua Hong took the check, he knew or should have known that that check will
not be paid by the bank. That will not be honored because there’s no indorsement at the back by the
drawer.
The SC said “We don’t know anything about that practice. This is a check payable to the
order of cash therefore it is payable to bearer. No indorsement at the back is needed. To transfer
title to it, mere delivery is sufficient.”
Well, banks now require this signature at the back. Somehow, they believe that by the fact
that it was signed at the back by the drawer is an assurance that the drawer has actually released
and delivered the check and it was not just swiped by somebody who happened to see it on his
desk.
Letter e. This refers to a case where the instrument is payable to order and then it was
indorsed in blank.
I forgot to mention… we have this Caltex case. Angel dela Cruz went to Caltex. He wanted to
buy gasoline products on credit. He applied for a credit line. Caltex said “Sure, but we require
collateral.” Dela Cruz offered his time deposit with Security Bank as collateral. He was given a credit
line so he bought gasoline products to the maximum extent of his credit line.
Then he went to Security Bank and said the time deposit it gave him was lost and sought its
replacement. The bank replaced it. He then borrowed money and gave the time deposit replacement
certificate as collateral hold-out arrangement. Security bank agreed. He disappeared with the
gasoline products and the money he borrowed from Security Bank.
When his loan fell due, Security Bank was going to collect. The issue now is who has a better
right to collect the proceeds of the certificate of time deposit? Caltex said that the collateral was
pledged to them earlier.
The side issue that cropped up was that whether the instrument was negotiable. The
Court said it was. The certificate of time deposit says “This is to certify that bearer has deposited so
§10 says you need not use the exact words of the law but other words equivalent to them
which indicate the intention to conform to the requirements hereof are sufficient. Like instead of
saying “bearer,” you can say “possessor” or “holder” or instead of saying “Pay to Jose Cruz or
order,” you can say “Pay to Jose Cruz or his indorsees or assignees.”
Under §11, if an instrument or acceptance is date, that is presumed to be the true date. If
the instrument says “I promise to pay 30 days from today.” And it is dated November 14, 2001. It is
presumed that that is the true date but it can be rebutted.
Under §12, ante-dating or post-dating an instrument does not affect its validity.
§14 refers to incomplete but delivered instruments. If the instrument is wanting in any
material particular, the person in possession is presumed to have authority to fill it up . So
from the fact that there is an omission in the instrument and a person is in possession, the law
presumes he has authority to fill up the blank.
For example, the instrument says “I promise to pay Jose Cruz or order P10,000.00 with
interest at the rate of ______.” The payee can insert there the rate of interest.
SECTION 15
Drawer/Maker or any person who affixes his signature before delivery of an incomplete and
undelivered instrument is not liable to any holder, even a holder in due course. The NIL gives the
phrase “any holder” which covers all types of holders.
Indosers in an incomplete and undelivered instrument are liable under SEC. 66 for breach of
warranty.
SECTION 16
Refers to complete but undelivered instruments
Ex. A check was issued to Jose Cruz and that he could have the money represented by the
check if he passes the accounting exam. Later, Jose failed the exam and the check was
subsequently dishonored. Jose cannot go against the drawer/maker because the instrument was not
negotiated. The defense in favor of the drawer/maker could not be invoked against a Holder in Due
Course.
SECTION 17
Words shall prevail over numbers. In People v. Romero, the defendant was acquitted from
estafa because the amount in words (a smaller amount) made the check drawn against sufficient
funds. If the amount in numbers ( a bigger amount) were used, there would have been estafa since
the check would have been drawn against insufficient funds.
SECTION 18
General Rule: A person whose signature does not appear on the instrument is not liable.
EXCEPT:
1. Duly authorized agent signs for a person whereby such person shall be liable;
2. Forger is liable for the signature he forges;
3. Signature in a separate paper when the original instrument has no more space;
4. Estoppel;
5. Signing under a trade or assumed name; and
6. When the instrument can be negotiated by mere delivery.
SECTION 19/20
To avoid liability, the agent:
1. Must be authorized;
2. Must indicate that he signs as an agent; and
3. Must indicate his principal
A letterhead with the name of the principal appearing thereon is sufficient to indicate the
principal.
The agent, although authorized, must act within the given authority.
SECTION 22
When a negotiable instrument is indorsed by a minor/corporation, the defense of incapacity is
personal only to the said minor/corporation.
However, the minor shall be liable under the following exceptions:
1. The minor actively misrepresents his age and it appears that he is physically of such age
(estoppel);
2. The minor kept the fruits or benefits; and
3. The minor spent the money in good faith (relate to Art. 1427 NCC).
SECTION 23
Types of Forgery:
1. Fraud amounting to forgery or fraud in factum;
2. Duress amounting to fraud; and
3. Fraudulent impersonation.
Fraud in factum – Jose Cruz obtains the signature of Juan Santos by misleading the latter into
believing that what was signed was only for an autograph. There was no intention to circulate a
negotiable instrument.
Impersonation – there must be an intention that the impersonator is the one who should receive
the instrument.
Case 1:
A -> B -> C-> D-> E (holder in due course)
Case 2:
A -> B -> C-> D-> E (holder in due course)
Case 3:
A -> B -> C-> D-> E (holder in due course)
1. Can E run after A? Yes, but if E was not a holder in due course, A can claim want of delivery of a
complete instrument as a defense under Section 16 NIL.
2. Can E run after B? No, because E has no title.
3. Can E run after C? No, because of the defense of forgery.
4. Can E run after D? Yes, because D is the forger/warranty of indorser.
The forgery of the indorsement is immaterial since the instrument is payable to bearer which makes
it negotiable by mere delivery.
However, if there was an indorsement (although unnecessary), the holder can run after prior parties
if he can trace his title to such prior parties. There should be no break. In Case 3, E can trace only
up to D because there was a break when the forgery was committed.
Hypothetical Cases
CASE 1: B FORGED THE SIGNATURE OF A, AS DRAWER ON A BILL OF EXCHANGE PAYABLE TO B OR ORDER. B
INDORSED IT TO C, C TO D, D TO E. E PRESENTED TO X, X ACCEPTED AND PAID.
Q. Can X debit the account of A?
A. No because there is no warranty of ___, because the signature is forged.
CASE 6: A ISSUES A BILL OF EXCHANGE PAYABLE TO B OR ORDER. B INDORSES IT TO C. D STOLE IT AND FORGED
THE INDORSEMENT OF C AND INDORSED IT TO E. E PRESENTED TO X, X DISHONORED IT.
Q. Can X debit the account of A?
A. No, X did not pay anything.
CASE 7: A ISSUED A BILL OF EXCHANGE PAYABLE TOB OR BEARER. B INDORSES IT TO C. D STOLE IT AND FORGED
THE INDORSEMENT OF C AND INDORSED IT TO E. E PRESENTED TO X, X ACCEPTED AND PAID.
Q. Can X debit the account of A?
A. Yes, because it is a bearer instrument. The instruction of A to X is “pay to the bearer.”
CASE 9: B FORGED THE SIGNATURE OF A ON A PROMISSORY NOTE (OR BILL OF EXCHANGE) PAYABLE TO B OR
ORDER. B INDORSES IT TO C. D STOLE IT AND FORGED THE INDORSEMENT OF C AND INDORSED IT TO E.
Q. Can E collect from A?
A. No, because A’s signature is forged.
CASE 10: B FORGED THE SIGNATURE OF A ON A BILL OF EXCHANGE PAYABLE TO B OR BEARER. B INDORSES IT TO
C. D STOLE IT, FORGED THE INDORSEMENT OF C AND INDORSED IT TO E.
Q. Can E run after A?
A. No, because A’s signature is forged, it is not operative, it is not binding.
CASE 11: B FORGED THE SIGNATURE OF A ON A BILL OF EXCHANGE PAYABLE TO B OR ORDER. B INDORSED TO C. D
STOLE IT, FORGED THE INDORSEMENT OF C AND INDORSED IT TO E. E PRESENTED TO X, X ACCEPTED AND PAID.
Q. Can X debit the account of A?
A. No, because the signature is forged.
CASE 12: B FORGED THE SIGNATURE OF A ON A BILL OF EXCHANGE PAYABLE TO B OR ORDER. B INDORSED TO C. D
STOLE IT AND FORGED THE INDORSEMENT OF C AND INDORSED IT TO E. E PRESENTED TO X, X DISHONORED IT.
Q. Can X debit the account of A?
A. No, X has not paid anything.
CASE 13: B FORGED THE SIGNATURE OFA AS DRAWER ON A BILL OF EXCHANGE PAYABLE TO B OR BEARER. B
INDORSED TO C. D STOLE IT, FORGED THE INDORSEMENT OF C AND INDORSED IT TO E. E PRESENTED TO X, X
ACCEPTED AND PAID.
Q. Can X debit the account of A?
A. No, forged signature
CASE 14: B FORGED THE SIGNATURE OF A AS DRAWER ON A BILL OF EXCHANGE PAYABLE TO B OR BEARER. B
INDORSED TO C. D STOLE IT, FORGED THE INDORSEMENT OF C AND INDORSED IT TO E. E PRESENTED TO X, X
DISHONORED IT.
Slatter (?) & Co. Case (negligence in the delivery). Slatter & Co., a New York stock broker, had
two customers who happened to have the same name—H.E. Richards, one in Oklahama, the other in
Texas. The one in Texas ordered the company to sell his shares and to send the proceeds from the
sale. The company complied, but in sending the check which was payable to “H.E. Richards” it
erroneously sent it to H.E. Richards in Oklahoma. This fellow deposited the check in his account, and
later withdrew the money. Now the company is suing the bank to get back the money. The court
said, “No. The bank had no way of knowing that the company sent it to the wrong H.E. Richards. So
this was due to you own negligence, so must bear the loss.”
CALINOG v PNB
Fr. Calinog was maintaining a current account with PNB
a certain Andrea was able to encash a check issued by him
PNB v QUIMPO
Gozon was a depositor of PNB
he went to the bank with his friend Santos
Santos was in the car while Gozon transacted business with the bank
when Santos saw that Gozon left his check book, he took a check and filled it up for P5 000;
forged the signature of Gozon; encashed the check
Gozon sued PNB; PNB claims that Gozon’s negligence was the proximate cause
SC: The bank should know the signature of the drawer. Gozon cannot be considered negligent
because he had no reason to suspect that his friend would steal his check. The mere fact that a
negotiable instrument is stolen from you does not constitute negligence.
MWSS v CA
MWSS was using its own personalized checks printed by its own printer and not the official PNB
checks
23 checks with forged signatures of MWSS officers were presented with PNB over a period of 3
months; PNB paid the checks
when MWSS discovered the forgery, it sued PNB for the return of the money
SC: MWSS was guilty of negligence. It was allowed to have its checks printed by a by a private
printing press. It failed to adopt security measures in the printing of the checks. It did not
reconcile the bank statements with its records.
PRICE v NEAL
Price was the drawee in 2 bills of exchange
he indorsed said bills to Neal
the drawer’s signature turned out to be forged
Price sued Neal to get back the money on the theory of payment by mistake
SC: Price cannot recover. As the drawee, it was his obligation to verify the signature of the
drawer. He was guilty of negligence, so he must bear the loss.
PNB v CA
Lim deposited in his current account with PCI a check issued by GSIS in favor of Pulido who in
turn indorsed to it to Go; Go indorsed it to Lim
PCI as collecting bank presented the check to PNB; PNB honored the check
when the forgery was discovered, PNB returned the money to GSIS and sued PCI
SC: PNB cannot get back the money from PCI. Under Section 62 of the NIL, the acceptor admits
the genuineness of the signature of the drawer and that applies also to payment because
payment implies and presupposes acceptance.
GEMPESAW v CA
Gempesaw maintained a current account with PBC
she used checks to pay the suppliers of the grocery stores she owned
her bookkeeper was the one who prepared the checks and she merely signed them
PROVINCE OF TARLAC
the province of Tarlac maintained an account with PNB
it was operating a hospital and to fund its operations, checks were drawn payable to the Chief of
the hospital; the cashier received the checks
after the cashier retired, he continued to receive checks; he forged the indorsements
the cashier deposited the forged checks with Associated Bank
the province sued PNB; PNB filed a 3rd party complaint against AB
SC: PNB cannot debit Tarlac’s account because the Chief’s signature was forged. However, PNB
can demand reimbursement from AB. Nevertheless, Tarlac should bear ½ of the loss for its
negligence. (Tarlac and AB liable proportionally)
ASSOCIATED BANK
Reyes was engaged in the business of selling RTWs to department stores
the department stores issued cross checks payable to her account only; however, she
never received them
when she followed up, she discovered that the checks were deposited by a certain Sayson who
was able to withdraw the money
SC: Reyes could sue the stores for payment and they can in turn sue the collecting banks for
paying the checks; the banks can ran after AB. BUT to avoid circuity, Reyes can sue AB directly
CLEARING
all checks have a magnetic ink recognition to identify upon which bank it is drawn
once a check reaches the clearing house, the computer will automatically credit bank X account &
debit bank Y account
this is merely tentative because the check will be delivered to bank Y and bank Y has 24 hours
within which to accept the check from the time it received the same
SECTION 24
Every NI is deemed to be issued for a valuable consideration.
Villaluz case
The accused was being prosecuted for issuing a bouncing check. SC said that since consideration
was presumed drawer should be ordered to pay its value because he failed to prove that there was
no consideration.
SECTION 25
In civil law, a consideration may consist an obligation to give like to deliver a car, ring; to do, to sing
in a concert; not to do like in a contract, you may have a provision where somebody selling his
SECTION 26
If A issued a P/N in favor of B but actually B didn’t give him any consideration. B then indorses it to
C who pays for it and now C negotiates it to D. D is considered a holder for value w/ respect to A, B,
C because C gave value and A and B were parties before who became bound before the value was
given.
SECTION 27
This is common in labor cases. The arbiter decided the case in favor of the employee and employer
wants to appeal. The er will post a bond. Surety Co. will require collateral but they will not accept
real estate. They would insist it would be cash, money market placement, time deposit, T-bills
because this is a very risky undertaking about 95% they will be held liable. They would want
collateral which would be easily converted to cash. If here is an er w/ a certificate of time deposit
w/c is negotiable for P1M and the judgment in favor of the ee is P0.5M so that collateral the surety
co. is asking for is PO.5M but what they have is the negotiable certificate of time deposit, so they
would give it as collateral to the extent of P0.5M. So surety co. can be considered a holder for value
up to P0.5M only because that was the only amount it will be entitled to recover in case it is held
liable to the ee.
SECTION 28
“Absence of consideration is a matter of defense against a person not a HIDC”
Jose Cruz issued a check for a ring but it turned out to be fake but the check was indorsed to a
HIDC. The drawer cannot raise that defense.
Cornell case
Want of consideration between the drawer and acceptor is a defense against the payee. If the
drawee accepted the B/E and the holder returned on the date of maturity to demand payment, the
acceptor cannot raise the defense that the drawer doesn’t have sufficient funds therefore I cannot
pay you. Under sec. 62, the drawee, by accepting the instrument admits the authority of the drawer
to draw the instrument. That means he admits either the drawer has sufficient funds with him or
they have an arrangement wherein to advance his own funds.
SECTION 29
In the play “Merchant of Venice,” A signed a P/N as accommodation maker because B wanted to
borrow money from S but his credit standing was poor. So A signed the P/N as accommodation
maker and the stipulation was that should he fail to pay S can extract 1 lb. of flesh. Because A could
not pay, S now was demanding his 1 lb. of flesh. …
Clark v. Sellner
The consideration that supports the obligation of the accommodation party is the consideration that
supports the obligation of the party accommodated. There need not be an independent consideration
for the obligation of the surety. You find that in civil law.
Jose v. CA
Jose was claiming a certain property belonging to the client of Atty. Beltran. There was a settlement.
She agreed to give up his claims for a certain amount and to facilitate the settlement Atty. Beltran
signed a check to pay Jose. Whose check was that? It was the check of the company of which he
was president. So he and the VP co-signed the check representing the amount to be paid to Jose to
give up her claim against the property of client of Atty. Beltran. When Jose tried to collect on the
check. Check bounced for lack f funds. She now sued corp. headed by Atty. Beltran.
SC: NO, the issuance of the check was ultra vires. No biz purpose so far corp. is concerned.
Remember, as a general rule, a corp. cannot be a surety for the obligation another because it has no
business purpose. When Atty. Beltran and the VP signed that check, in behalf of corp. they were
exceeding their authority as agents of corp. The rule is that when the agent exceeds its authority it
becomes personally liable. It is Atty. Beltran who should be sued and held personally liable.
SECTION 30
That’s why I told you in some decisions one penned by Justice Martin and one penned by
Justice Romero where holder of check w/ a forged indorsement was ordered to return the money. SC
said that under sec 66 the general indorser warrants the instrument what it purports to be. That is
wrong. That is not negotiation because the holder did not transfer the check to the drawee. That was
presentment for payment. The holder signs the check at the back to acknowledge receipt of payment
and not form purpose of transferring title.
Now if the instrument is payable to order, to negotiate sign at the back then deliver. If it’s
payable to bearer, mere delivery is sufficient. But if the party indorses and delivers it, that is also
negotiation.
Caltex case
This is where Angel dela Cruz who had a deposit with Security Bank with a certification. “This is to
certify that bearer has so much of deposit repayable to the depositor. He pledged that to Caltex as
collateral for his credit line. Then he told SB that it got lost and asked for a replacement and gave it
as a collateral for a loan w/c he got from SB. He disappeared. Dispute is who had a better right to
the proceeds of the cert. Caltex said this was pledged to us.
SC: This is a NI. But there are no provisions in NIL governing pledge of NI. So we should fall back
on NIL. NIL says for a pledge of a NI to bind 3 rd parties pledge must appear in a public instrument
and the pledgor must indorse the instrument. These requirements were not complied w/. Pledge
was not notarized. and Dela cruz didn’t indorse certificate. SB had better right.
SECTION 31
To negotiate, to indorse, one mist write on the instrument or a paper attached to it (allonge). That is
sufficient, it works as an indorsement because by operation of law that is what happens. Just like in
your sale. The seller by simply signing the deed of sale warrants that the thing he sells is free from
hidden defects and he also warrants against eviction even though the contract is silent. His mere act
of signing the law imposes those liabilities upon him.
SECTION 32
“Indorsement must be of entire instrument”
Exception: If instrument is paid in part, for example when it is paid on installments. 1 st installment
has been paid then it can be indorsed w/ respect to the balance. The law requires that there must be
indorsement of entire instrument because we said NI are intended to circulate and it would be very
difficult to negotiate that further if you could have partial indorsemenst. You have a check for
100K and payee will indorse 50K of that. who keeps the check. The indorsee now will indorse 30K of
that to another party. That another party will indorse 15K of that. It’s very very difficult. That’s
why law prohibits that. Now if a partial indorsement is made, the effect of that will be an
assignment not negotiation so personal defenses can be raised. Law also prohibits transfer to 2 or
more indorsees. For instance you have a check for 100K to Jose Cruz 50K and Manuel Santos
50K.
This classification is not mutually exclusive. You can have indorsement w/c is the combination of
these. You can have an indorsement w/c is conditional and facultative.
SECTION 34
SPECIAL- specifies person to whom it is being indorsed. Like if co-payee writes at the back to Jose
Cruz, then signs it. That’s special indorsement. And to negotiate further Jose Cruz must indorse if
payable to bearer. If payable to bearer it can be negotiated further by mere delivery.
BLANK- does not name any person. The co-payee just signs at the back. That become payable to
bearer under Sec. 9 so it may be negotiated further by mere delivery.
SECTION 35
A holder may convert a blank indorsement into special by writing over signature of the indorser in
blank any contract consistent with the character of indorsement. Because if an order instrument is
indorsed in blank it becomes payable to bearer. Holder may be afraid if he loses that the finder may
be able to collect payment because it is payable to bearer. To protect himself, he can insert his
name to change blank to special so instrument will not be payable to bearer and therefor his
indorsement will be needed to negotiate that further. But the contract must be consistent with the
blank indorsement . It cannot add there notice of dishonor waived .
SECTION 36
Restrictive Indorsement
SECTION 38
Such indorsement does not affect negotiability but if it is dishonored because of insolvency of maker
or acceptor the indorser will not be liable especially if instrument will fall due after a long period of
time like 5 yrs. Indorser may be reluctant to indorse that as a general indorser bec if the maker does
not pay I will be solidarly liable and I’m not willing to take that risk. 5 yrs is too long a time. I don’t
know what will happen to him 5 yrs form now. Now however indorser is not completely out of the
woods bec. under sec. 65 he has certain warranties. He warrants that the instrument is genuine in
SECTION 39
If indorsement is conditional, maker or acceptor is given the choice. He may disregard the condition
and pay on the date of maturity or abide with the condition and refuse to pay and wait and see if
condition will be fulfilled. He can disregard bec. he bound himself to pay unconditionally and you
cannot change the contract w/o his consent so you can say disregard condition because you can say
I am very solvent now but I don’t know what will happen in the future so I would rather get it over
w/ and settle this obligation now. If he pays and disregards condition and later condition not fulfilled,
holder cannot run after the acceptor: why did u pay? Bec he has been discharged and law allows him
to disregard. Remedy of conditional indorser is to run after indorsee to get back the money.
SECTION 40
I signed P/N payable to bearer. If payee indorses that by special indorsement to Jose Cruz, JC can
negotiate further by mere delivery. Why? bec he cannot change my contract. I bound myself to pay
to the bearer. Payee cannot change my contract and make that instrument payable to order. I made
that payable to bearer bec I don’t want to assume the risk of forge indorsement. That’s why I agreed
to pay bearer. Bec if I made that payable to order and it turns out that there was a forged
indorsement I pay the wrong person. Person entitled can run after me. If you pay the wrong person
that person has no title. His title is based on a forged indorsement you are still liable. I don’t want to
take the risk. Other parties cannot change my contract bec I don’t want to take that risk. Now that if
that person indorses it. So if bearer inst. A-B-C-D. B indorses it to C by special indorsement but C
merely delivered it to D w/o indorsement D cannot run after B bec. C didn’t indorse it to him so D
cannot raise his title to B
SECTION 41
General Rule: If instrument is payable to 2 or more payees like if payable to Mr. and Mrs. Antonio
Cruz, they must both indorse.
Exceptions: if 1 has POA form another or if they are partners. Theory in partnership, there’s mutual
agency.
SECTION 48
Under Section 48, the holder may at any time strike out any indorsement which is not
necessary to his title. The indorser whose indorsement is struck out, and all indorsers subsequent to
him, are thereby relieved from liability on the instrument. For example,
A B C D E
Because this is payable to order and therefore, the indorsement of B is needed in order to
negotiate that because it’s payable to the order of B. But if this were payable to bearer, then all the
indorsements can be crossed out. Now, the effect of striking out the indorsement is that the
indorsers whose signature was cancelled and all the indorsers subsequent to him would be relieved
from liability. So that if E strikes out the indorsement of C, C will be relieved from liability and also
D. Why? Because D has been prejudiced. Striking out of the signature of C deprived him of his right
of recourse against C. Since he has been prejudiced because he could no longer run after C, the law
will relieve him also.
SECTION 49
SECTION 50
Now under Section 50, if an instrument is negotiated back to a prior party, he may further
negotiate it, but he cannot enforce it against any intervening party to whom he is personally liable.
A B C D E
So here if this is indorsed to B, under this provision, B can negotiate it further but B in case A
refuses to pay, he cannot run after C,D, E. Why? Because they in turn can run after him, so there
will be compensation. His liability to them will be offset by their liability to him because while they
are liable to him, in turn, he liable to them. SO he will run after C,D,E and in turn, they will run
after him. So, since there will be compensation of liabilities, he cannot run after them. But you see
the law is based on the premise that there will be compensation that’s why he is precluded from
running after them. So if he can run after them, but they cannot run after him, this will not apply,
so he can run after them. For instance, he indorsed this, qualified indorsement, without recourse,
but C, D,E are general indorses, well he can run after them because they cannot run after him. And
the reason of the law which is based on the assumption that there will be offsetting of liabilities will
not apply, that’s why now, he can run after them.
SECTION 51
Section 51 talks of the rights of a holder. A holder may sue in his own name and payment to
him in due course will discharge the instrument. Payment is in due course if it was made at or after
maturity to the holder in good faith and without notice that his title is defective.
SECTION 52
Section 52 deals with an important provision – Holder in Due Course. Well, Section 52 lays
down the requisites to be considered a holder in due course – (1) The inst must be complete and
regular upon its face; (2) He must have become a holder before it was overdue and without notice
that it had been previously dishonored, is such was the fact; (3) He took it in good faith and for
value; (4) 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.
Subsection (d) is an elaboration of Subsection (c). It explains the meaning of taking the
instrument in good faith. In other words, that the party who took it had no notice of any infirmity in
the instrument or defect in the title of the person negotiating it.
Then, section 55 elaborates on subsection (d). It explains when the title is defective.
Section 56 also elaborates on that. It says when there is notice of defect. If the holder took it on
the day it was due, he’s still a HDC because its not yet overdue.
Now, instruments payable in installments. If an installment was not paid and he was aware
of that, there is no acceleration clause, he will not be a HDC with respect to the installment that was
already overdue but he will be a HDC with respect to the installment which are not yet due. If
there’s an acceleration clause and it is automatic and he was aware that there was a default, then he
will not be a HDC because he is aware that the entire amount is already overdue but if he is not
aware, then he will be a HDC with respect to the installments which are not yet overdue on the face
of the inst.
SECTION 53
Now Section 53 says if an instrument payable on demand is negotiated an unreasonable
length of time after its issuance, the holder is not a HDC. In determining what is a reasonable time,
that is mentioned in the law, Section 193 – you consider the nature of the instrument, customs and
the facts of each particular case.
SECTION 54
Now under Section 54, if a transferee receives notice of any infirmity before he has paid the
full amount agreed, he will be deemed a HDC only to the extent of the amount paid by him. For
instance, here is somebody who is the payee of a post-dated check for over P100,000. And he told
a friend, Jose Cruz, “this is due next month but I need money very badly now. I cannot wait for
next month to get the P100,000. So, I am offering to negotiate this to you at a discount. You pay
me P80,000. I’m willing to indorse this to you.” So, Jose Cruz said, “well, I don’t have P80,000
now. I’ll give you P40,000. Come back three (3) days later. I will give you the balance.” The
following day, he found out that was issued for a fake ring. But then he gave the P40,000 just the
same. The check was presented. It was dishonored because there was a stop-payment order. So,
he now sues the drawer. Can he collect? Partially, YES. How much? P50,000. Because the
agreement was that he will pay P80,000 for the P100,000 check. So the consideration corresponds
to the face value on a ratio of 4:5. For every P5 of the face value, he will give P4 as consideration.
So in determining whether he is a HDC, there should be a proportionate of the amount he paid with
the face value of the check.
SECTION 55
Now Section 55 elaborates on Section 52(d). When is the title defective - The title is
defective when the party obtained by fraud, duress, force and fear, other unlawful means or illegal
consideration, or when he negotiates in breach of faith or under circumstances amounting to fraud.
So he negotiated it by fraud, like he negotiated it for payment for a fake ring. Duress, check as
ransom money. Unlawful means, like it was stolen. Illegal consideration – it was issued to pay for
marijuana.
SECTION 56
Now, Section 56 elaborates on Section 52. It says when there is notice of defect, the person
to whom it is negotiated must have actual knowledge of the infirmity or defect or knowledge of
such facts that his action in taking it amounts to bad faith. Negligence is not enough. They must
know something is wrong. They must either know exactly what is wrong or knowledge of such facts
that their actions amount to bad faith. They do not know what is wrong but they know something is
wrong and yet the holder still took the instrument. THE END.
SECTION 57. Rights of a Holder in Due Course.- A holder in due course holds the
instrument free from any defect of title of prior parties, and free from defenses available
to prior parties among themselves, and may enforce payment of the instrument for the
full amount thereof against all parties liable thereon.
May sue for payment in his own name, may receive payment
Holds it free from personal defenses
May enforce payment against all parties liable thereon.
Exception: when he cannot recover full payment, as found in Sections 37, 55 and 124
But the fact that real defense is available even against HIDC does not mean that everyone can
invoke it. Recall that an indorser who became a party after the forgery cannot invoke forgery
because of his warranty. He warrants that it is genuine in all respects what it purports to be.
Likewise, an acceptor warrants and admits the authority of the drawer to draw the instrument.
Under the Civil Code, gambling is a personal defense. So if an instrument is issued to pay for a
gambling debt and such is indorsed, the HIDC will be exempt from that defense
SECTION 58. When subject to original defense – In the hands of any holder other than a
holder in due course, a negotiable instrument is subject to the same defenses as if it were
non-negotiable. But a holder who derives his title through a holder in due course, and
who is not himself a party to any fraud or illegality affecting the instrument, has all the
rights of such former holder in respect of all parties prior to the latter.
Personal defenses may be raised against someone who is not a HIDC, but it does not mean that
one who is not a HIDC cannot collect. It only means that personal defenses may be raised
against him.
2nd Sentence - “But the holder who derives his title from a holder in due course…”
Example: A – B – C – D –E
A issued check for a ring he was buying from B. It turned out that the ring was fake. The
check was indorsed down the line to D who was a HIDC, then indorsed it to E who was aware
that the check was issued for a fake ring.
Under this provision, if the check bounces, A cannot raise the defense that E
knew that the check was issued for a fake ring. The purpose of the provision is to protect
a HIDC (in this example, to protect D.
nd
If the 2 sentence were not there: If you are D, and you needed money very badly such that
you can no longer wait for the instrument to mature, you have to keep looking for someone
who is a HIDC because no one who is aware of the defect will take the check. So how does
that prejudice D? Simple. Since he has to keep looking for someone who is a HIDC, his
choice of people to whom he can indorse it is limited.
If D is not a HIDC, he can’t transfer that to E who is a HIDC, and then asks E to negotiate it back
to him. That’s bad faith. If you are not a HIDC, you can’t improve your hand by indorsing it to a
HIDC then getting it back.
SECTION 59. Who is deemed a holder in due course.- Every holder is deemed prima facie
to be a holder in due course; but when it is shown that the title of any person who has
negotiated the instrument was defective, the burden is on the holder to prove that he or
some person under whom he claims acquired the title as holder in due course. But the
last-mentioned rule does not apply in favor of a party who became bound on the
instrument prior to the acquisition of such defective title.
This is an important presumption. The law realizes that one of the features of a negotiable
instrument is exemption from personal defenses.
SECTION 60. Liability of maker – The maker of a negotiable instrument, by making it,
engages that he will pay it according to its tenor, and admits the existence of the payee
and his then capacity to indorse.
Reason: an instrument is intended to be negotiated, and unless the payee exists and is
capacitated to enter into a contract, the instrument cannot be negotiated
ARANETA v. PEREZ
Facts: P executed a promissory note in favor of A. P failed to pay. A sued him. P’s defense:
“I used the money that I borrowed from A to pay for the medical expenses for my daughter. My
daughter is the beneficiary of a trust being administered by A. Because of the trust, A should
have paid for the medical expenses, so I don’t have to pay him”
Held: P’s argument is untenable. He signed the promissory note. There is an absolute and
unconditional promise to pay. So he must pay according to the tenor thereof. What he did with
the money is not the concern of the payee.
SECTION 61. Liability of the drawer - The drawer by drawing the instrument admits the
existence of the payee and his then capacity to indorse; and engages that, on due
presentment, the instrument will be accepted or paid, or both, according to its tenor, and
that if it be dishonored and the necessary proceedings on dishonor be duly taken, he will
pay the amount thereof to the holder or to any subsequent indorser who may be
compelled to pay it. But the drawer may insert in the instrument an express stipulation
negativing or limiting his own liability to the holder.
A drawer is liable to holder and any of the prior indorsers who will be compelled to pay. The
drawes can negate liability by putting “without recourse”, then he can’t be liable.
The drawee is not liable unless he accepts. Before the bill is accepted. The only parties
primarily liable are the maker and the acceptor. The drawer’s liability is only secondary (liable
only if instrument is dishonored)
CEBU INTERNATIONAL FINANCE CORP v. CA
Facts: A check was drawn against BPI. When presented for payment, BPI debited the
account of the drawer, but it did not deliver the money to the holder (there were certain
questions about some anomalies, so BPI withheld payment pending investigation). The holder
runs after the drawer.
Drawer’s argument: I’m not liable. Bank already debited my account.
Held: No, D is still liable. As drawer, you warranted that it will be paid. And if not, that
you’ll make good the check.
SECTION 63. When a person deemed indorser. — A person placing his signature upon an
instrument otherwise than as maker, drawer, or acceptor, is deemed to be indorser unless
he clearly indicates by appropriate words his intention to be bound in some other
capacity.
If a person places upon the instrument the words “I guarantee the identity of the payee” –
liable only if the payee is an impostor.
In case of doubt, the person shall be presumed to be an indorser, because among the parties
to the instrument, the indorser has the least liabilities. Doubts are always resolved against the
assumption of liabilities.
SECTION 64. Liability of irregular indorser. — Where a person, not otherwise a party to an
instrument, places thereon his signature in blank before delivery, he is liable as indorser,
in accordance with the following rules:
(a) If the instrument is payable to the order of a third person, he is liable to the payee
and to all subsequent parties.
(b) If the instrument is payable to the order of the maker or drawer, or is payable to
bearer, he is liable to all parties subsequent to the maker or drawer.
(c) If he signs for the accommodation of the payee, he is liable to all parties subsequent
to the payee.
Irregular indorser – someone who is not a party to the instrument, but signs the same before
delivery
Example: A ---- B ---- C ----D ---- E (instrument is payable to B)
X indorsed it. X is an irregular indorser because normally, you will see the signature of B as the
1st signature. X is liable to B, C, D, E.
If payable to order, maker, drawer or bearer, he shall be liable to all parties subsequent
thereto.
If he signed as an accommodation payee, he shall be liable to all parties subsequent to the
payee.
Irregular indorser must not be a party because he is signing as an accommodation party to
improve the credit standing. If he is already a party, it will not improve the credit standing of
that instrument because he is already bound.
If he signs after delivery, he shall be liable as an indorser (Sections 17 (f), 63)
SECTION 66. Liability of general indorser. — Every indorser who indorses without
qualification, warrants to all subsequent holders in due course:
(a) The matters and things mentioned in subdivisions (a), (b), and (c) of the next
preceding section; and
(b) That the instrument is, at the time of his indorsement, valid and subsisting;
And, in addition, he engages that, on due presentment, it shall be accepted or paid,
or both, as the case may be, according to its tenor, and that if it be dishonored and the
necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the
holder, or to any subsequent indorser who may be compelled to pay it.
Warrants the same matters mentioned in Section 65. The only difference is the last
subsection – “valid and subsisting”
If maker is insolvent, even if the general indorser is not aware, he will be liable
The general indorser engages that the instrument shall be paid or accepted and paid. If not,
he will pay provided that the necessary measures are taken.
Case of HARAM (?)
Facts: Holder deposited a check with a chartered bank (CB), drawn against the Bank in NY.
He was able to withdraw money although the check was not yet cleared. When the CB
presented the check to the bank in NY, it was dishonored on the ground that the signature was
forged. CB asked the holder to return the money. Holder refused, so CB sued. The holder
argued that CB failed to prove that the signature was forged.
Held: All that the CB has to prove is that it was not paid. When the holder deposited the
check with CB, he indorsed it. He warranted that it will be paid. Hence, holder should pay,
whether or not the reason given by the drawee for the dishonor is false.
Where the signature of an indorser was forged, the payee must reimburse the drawee
because of Section 66. But according to Jack, that is not correct. Payee did not transfer title to
the drawee bank. Payee presented it for payment, and not for indorsement. Payee’s signature
at the back was to acknowledge payment and not to indorse.
There is a dispute as to whether the warranties apply only to HIDC. The wording of the law
refers only to all HIDC. But according to Jack, the better view is that espoused by Prof.
SEC 70. - Effect of want of demand on principal debtor. Presentment for payment is not
necessary in order to charge the person primarily liable on the instrument; but if the
instrument is, by its terms, payable at a special place, and he is able and willing to pay it
there at maturity, such ability and willingness are equivalent to a tender of payment upon
his part. But except as herein otherwise provided, presentment for payment is necessary
in order to charge the drawer and indorsers.
Meaning of presentment for payment:
Production of a BOE to the drawee for his acceptance, or to the drawee or acceptor for payment
or the production of a PN to the party liable for the payment of the same
The rule is the same, i.e, no need to present for payment, the only difference is that if the
acceptor/maker is able and willing to pay at PNB at maturity, it is equivalent to a tender of
payment on the part of the acceptor and the holder loses his right to recover interest due
subsequent to maturity and costs of collection, but he can still hold the acceptor liable
Pia (drawee)
Sec 71 read in connection w/ the last sentence of Sec 70 simply means that
the instrument must be presented for payment on the date and period therein mentioned to
charge the persons secondarily liable such as drawers and indorsers. Instrument must be
presented on date of maturity, if it is payable on a fixed date.
- or w/in a reasonable time after issue if its a PN, or w/in a reasonable time after last
negotiation, if its a BOE otherwise drawers and indorsers are discharged.
Necessary steps to charge persons secondarily liable in BOE (drawer and indorsers):
if one step is omitted, persons secondarily liable are discharged
1. In the 3 cases required by law, presentment for acceptance to the drawee or
negotiation w/in a reasonable time after acquisition (Sec 143 and 144 ) unless excused (Sec
148 ). In other cases aside from the 3 three, there is need for presentment for acceptance.
2. If the bill is dishonored by non acceptance, (a) notice of dishonor by non acceptance
must be given to persons secondarily liable (Sec 80 ) unless excused ( Sec 117 ) and, in
case of foreign bills, (b) protest for dishonor by non acceptance must be made (Sec 152 )
unless excused (Sec 159 and 117 ).
3. If the bill is dishonored by non payment, (a) notice of dishonor by non payment must
also be given to person secondarily liable (Sec 80 ) unless excused and, in case of foreign
bills, (b) protest for dishonor by non acceptance must be made (Sec 152 ) unless excused.
Sec. 71. Presentment where instrument is not payable on demand and where payable
on demand. Where the instrument is not payable on demand, presentment must be made
on the day it falls due. Where it is payable on demand, presentment must be made within
a reasonable time after its issue, except that in the case of a bill of exchange,
presentment for payment will be sufficient if made within a reasonable time after the last
negotiation thereof.
Sec. 73. Place of presentment. Presentment for payment is made at the proper place .
(a) Where a place of payment is specified in the instrument and it is there presented;
(b) Where no place of payment is specified but the address of the person to make
payment is given in the instrument and it is there presented;
(c) Where no place of payment is specified and no address is given and the instrument is
presented at the usual place of business or residence of the person to make
payment;
(d) 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.
Sec. 74. Instrument must be exhibited. The instrument must be exhibited to the
person from whom payment is demanded, and when it is paid, must be delivered up to the
party paying it.
Sec. 75. Presentment where instrument payable at bank. Where the instrument is
payable at a bank, presentment for payment must be made during banking hours, unless
the person to make payment has no funds there to meet it at any time during the day, in
which case presentment at any hour before the bank is closed on that day is sufficient.
Sec. 76. Presentment where principal debtor is dead. Where the person primarily
liable on the instrument is dead and no place of payment is specified, presentment for
payment must be made to his personal representative, if such there be, and if, with the
exercise of reasonable diligence, he can be found.
Sec. 78. Presentment to joint debtors. Where there are several persons, not partners,
primarily liable on the instrument and no place of payment is specified, presentment must
be made to them all.
Sec. 79. When presentment not required to charge the drawer. Presentment for
payment is not required in order to charge the drawer where he has no right to expect or
require that the drawee or acceptor will pay the instrument.
Sec. 80. When presentment not required to charge the indorser. Presentment is not
required in order to charge an indorser where the instrument was made or accepted for
his accommodation and he has no reason to expect that the instrument will be paid if
presented.
Illus case:
Presentment not required to charge the drawer in the ff cases:
1. In case of a check where payment has been stopped.
2. Where the drawer’s balance is less than the amount of the check unless the drawer has
reasonable grounds to believe that the check will still be paid.
3. Where drawer of a bill containing words “Pay from balance” had no money on deposit w/ the
drawee but expected to arrange w/ the broker to cover drafts.
Sec. 81. When delay in making presentment is excused. Delay in making presentment
for payment is excused when the delay is caused by circumstances beyond the control of
the holder and not imputable to his default, misconduct, or negligence. When the cause of
delay ceases to operate, presentment must be made with reasonable diligence.
Sec. 82. When presentment for payment is excused. Presentment for payment is
excused:
(a) Where, after the exercise of reasonable diligence, presentment, as required by this
Act, cannot be made;
(b) Where the drawee is a fictitious person;
(c) By waiver of presentment, express or implied.
Implied waiver:
1. Declaration, acts or conduct w/c mislead the holder and induce him from taking the necessary
steps to make presentment.
2. Drawer Pat tells holder Miles that she will take care of collecting the bill.
3. Holder failed to make presentment to drawee. Thereafter, drawer paid part of the bill and
promised orally to pay the rest.
4. Where maker, b4 maturity of note, was adjudged a bankrupt partly upon his written admission of
inability to pay the debts w/ willingness that he be adjudged a bankrupt.
5. Where indorsers of a note payable at a bank had assured the holder that it could not be paid at
maturity and knew that the maker, a corporation, had no money to pay for it.
6. Where indorsers assured the holder, before maturity of the note, that a note for the same
amount w/ his indorsement will be given in renewal, such assurance, if relied by the holder.
7. When maker on day of maturity of the note telephoned the holder that he could not then pay the
note and the holder then telephoned the maker consenting in giving further time to the maker.
Sec. 84. Liability of person secondarily liable, when instrument dishonored. Subject
to the provisions of this Act, when the instrument is dishonored by non-payment, an
immediate right of recourse to all parties secondarily liable thereon accrues to the holder.
Sec. 85. Time of maturity. Every negotiable instrument is payable at the time fixed
therein without grace. When the day of maturity falls upon Sunday or a holiday, the
instruments falling due or becoming payable on Saturday are to be presented for payment
on the next succeeding business day except that instruments payable on demand may, at
the option of the holder, be presented for payment before twelve o'clock noon on
Saturday when that entire day is not a holiday.
Sec. 86. Time: how computed. When the instrument is payable at a fixed period after
date, after sight, or after that 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. 87. Rule where instrument payable at bank. Where the instrument is made
payable at a bank, it is equivalent to an order to the bank to pay the same for the account
of the principal debtor thereon.
Sec. 88. What constitutes payment in due course. Payment is made in due course
when it is made at or after the maturity of the payment to the holder thereof in good faith
and without notice that his title is
Definition:
Notice of dishonor - 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
proceedings taken, has not been accepted or has not been paid, and that the party notified is
expected to pay it
Illustration:
Gossip Guru Litong-litong Lito, aspiring to become 2B’s next president (kaya siguro ang sipag
niyang Treasurer, nangangampanya lang pala siya), makes a note payable to The Naive Ning so
that she would tell him the name of Sweetik Shiela’s boyfriend. The Naive Ning negotiates it to
Alluring Arab, Alluring Arab to Daring Denice, Daring Denice to Bossy Booey. Bossy Booey
makes a presentment for payment to Litong-litong Lito, maker, on the date of maturity. Litong-
litong Lito, kuripot as he is, refuses to pay (kahit na katakut-takot na pagpapa-cute na ang
ginawa ni Bossy Booey. Buti na lang at hindi si Monstrous Maggie ang payee, kung hindi,
nakakatakot na pagpapa-cute ang nangyari). Since Bossy Booey is so tamad, she failed to give
notices of dishonor to The Naive Ning, Alluring Arab, and Daring Denice. Because of that, three
of 2B’s dropdead gorgeous dudettes were discharged from the instrument.
Burden of proof:
It is on the holder. In other words, it is not presumed.
Section 90. By whom given. - The notice may be given by or on behalf of the
holder, or by or on behalf of any party to the instrument who might be compelled to pay it
to the holder, and who, upon taking it up, would have a right to reimbursement from the
party to whom the notice is given.
A total stranger cannot give notice of dishonor in his own behalf (a party discharged from the
instrument is considered a stranger).
A maker cannot give a notice of dishonor in his own behalf, but just like a stranger, he can give
notice as an agent in behalf of those who are entitled to give notice.
Section 91. Notice given by agent. - Notice of dishonor may be given by any agent
either in his own name or in the name of any party entitled to give notice, whether that
party be his principal or not.
Definition:
benefit - the right to charge the person secondarily liable who received notice
The party to whom this benefit inures can charge the party receiving notice of dishonor, even if
he himself did not give notice.
Notice of dishonor given by or on behalf of a holder inures to the benefit of (1) all parties prior to
the holder, who have a right of recourse against the party to whom the notice is given; and (2)
all holders subsequent to the holder giving notice.
Section 93. Effect where notice is given by party entitled thereto. - Where notice is
given by or on behalf of a party entitled to give notice, it inures to the benefit of the
holder and all parties subsequent to the party to whom notice is given.
Section 94. When agent may give notice. - Where the instrument has been
dishonored in the hands of an agent, he may either himself give notice to the parties liable
thereon, or he may give notice to his principal. If he gives notice to his principal, he must
do so within the same time as if he were the holder, and the principal, upon the receipt of
such notice, has himself the same time for giving notice as if the agent had been an
independent holder.
Illustration:
Big Mama commissioned Karl “The Nail Cutter Man” to look for a suitable Big Papa. After
introducing Toti to Big Mama, the latter gave The Nail Cutter Man a note in exchange of his
services (delivery of Big Papa [aside from the usual manicure and pedicure fee of course]).
Thereafter, The Nail Cutter Man delivered the note to Chikiti China, who then indorsed it to Big
Boy Ramby. Lito the self-proclaimed “Babe Killer” of 2B and Big Boy Ramby’s agent, makes a
presentment for payment to Big Mama, maker, on 20 October 1998.
Section 95. When notice sufficient. - A written notice need not be signed and an
insufficient written notice may be supplemented and validated by verbal communication.
A misdescription of the instrument does not vitiate the notice unless the party to whom
the notice is given is in fact misled thereby.
Section 96. Form of notice. - The notice may be in writing or merely oral and may
be given in any terms which sufficiently identify the instrument, and indicate that it has
been dishonored by non-acceptance or non-payment. It may in all cases be given by
delivering it personally or through the mails.
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.
Section 99. Notice to partners. - Where the parties to be notified are partners,
notice to any one partner is notice to the firm, even though there has been a dissolution.
Section 100. Notice to persons jointly liable. - Notice to joint persons who are not
partners must be given to each of them unless one of them has authority to receive such
notice for the others.
Section 101. Notice to bankrupt. - Where a party has been adjudged a bankrupt or
an insolvent, or has made an assignment for the benefit of creditors, notice may be given
either to the party himself or to his trustee or assignee.
Section 102. Time within which notice must be given. - Notice may be given as
soon as the instrument is dishonored and, unless delay is excused as hereinafter provided,
must be given within the time fixed by this Act.
Section 103. Where parties reside in same place. - Where the person giving and
the person to receive notice reside in the same place, notice must be given within the
following times:
(a) If given at the place of business of the person to receive notice, it must be given
before the close of business hours on the day following.
(b) If given at his residence, it must be given before the usual hours of rest on the day
following.
(c) If sent by mail, it must be deposited in the post-office in time to reach him in usual
course on the day following.
Section 104. Where parties reside in different places. - Where the persons giving
and the person to receive notice reside in different places, the notice must be given within
the following times:
(a) If sent by mail, it must be deposited in the post-office in time to go by mail the day
following the day of dishonor, or if there be no mail at a convenient hour on last
day, by the next mail thereafter.
(b) If given otherwise than through the post-office, then within the time that notice
would have been received in due course of mail, if it had been deposited in the
post-office within the time specified in the last subdivision.
Definition:
same place - the corporate limits of a town or city where the presentment is made or where
the holder resides
SHERRYL KHOSIKING
Under Section 111, the waiver of protest is a waiver not only of protest but also of presentment
and notice of dishonor because protest includes all the steps to charge the parties therein liable.
Under Section 112, notice of dishonor is dispensed with if despite reasonable diligence, it cannot be
given, or does not reach the person to be charged, in other words, it is due to a fortuitous event.
And delay in giving the notice is also excused if it is due to a fortuitous event.
Now Section 114, the notice need not be given where the drawer and the drawee are the same
person. For example, a manager’s check. The drawer is a bank. Who is the drawee? The same
bank. So the drawer and the drawee are the same person.
When the drawee is a fictitious person or a person not having the capacity to contract.
Subsection C. When the drawer is the person to whom the instrument was presented for payment.
So the holder went to the office of the drawee, the drawee was not there. And whom did he find?
The drawer who was the office manager. So he made the presentment to the drawer because he
was in charge of the office of the drawee. And the inst. was dishonored.
And when the drawer has no right to expect or require that the drawee or acceptor will honor the
instrument. That’s why in the case of Nora Hulik where she withdrew her funds from the bank.
Remember she was given pieces of jewelry to be sold. When she was not able to sell that, she
returned it to Muntod and then she did not fund the check which she issued to cover the expected
proceeds from the sale. And when the check which was rediscounted by the Sate Investment House
bounced, and she was sued, and her defense was “I was not given a notice of dishonor!” the court
said you had no need because you had no right to expect the check to be paid because you withdrew
your funds from the bank, you knew you did not have funds.
And when the drawer has stopped payment. So here it is an act of the drawer himself which caused
the dishonor. So he knows. So there is not need to notify him.
That’s why if you analyze this provision, notice of dishonor is not required to be given in those cases
where the drawee knows that the instrument has been dishonored. As when the drawee is the same
with the drawer, the drawer is the one to whom he has presented for payment, or he has no right to
expect that he would be paid, or has stopped payment. Then when the drawee is fictitious, then
there is no one to whom it can be presented for payment.
Or where the indorser is the person to whom the instrument is to be presented for payment, like the
holder went to the office of the drawee who was absent. And the person who was there was the
indorser who was the office manager.
Or where the instrument was made or accepted for his accommodation. Since here the
accommodated party is the principal debtor, and he is the one who is supposed to make
arrangements to pay this instrument when it falls due.
Under Section 116, when notice of dishonor by non-acceptance is given, notice of dishonor for non-
payment is not necessary unless in the meantime the instrument was accepted. So this should be
correlated with Section 151. It provides that if the bill is dishonored by non-acceptance, the holder
has the immediate right of recourse against the drawer and the indorses. He need not lake a
presentment for payment.
Under section 117, failure to give notice of dishonor, does not prejudice a HIDC who became a
holder after the failure to give notice of dishonor. Here is the holder of an instrument payable on
Feb. 15, 2002. He went to the drawee today to present it for acceptance, and the drawee
dishonored it. Then next week he negotiated it to a HIDC, well the HIDC, then he can still run after
the indorses. So when he presents it fort acceptance and it is dishonored, he can still run after the
drawer and the indorses.
Well under Section 118, protest is not required except in the case of foreign bills of exchange.
Now section 119 says when it is discharged by payment in due course by or on behalf of the
principal debtor or the maker or the acceptor, by payment in due course by the party accommodated
if the instrument is made or accepted for his accommodation. Why? Because if the party
accommodated is the one ultimately liable, he is the one who should make arrangements to pay.
Remember, if the accommodation party is the one who paid, there are still scores to be settled.
Because he is entitled to demand reimbursement from the accommodated party. Now if the
payment is made by a 3rd party, the instrument is not discharged because remember under the civil
code, when payment is made by a third party, he is entitled to demand reimbursement form the
debtor.
By intentional cancellation by the holder. If he tears it up, burns it, or writes, “cancelled”.
By any other act which will discharge a contract for the payment of money. You find that in the Civil
Code. Payment. Well, loss will not apply because remember in civil law, loss does not apply to
pecuniary obligations because the obligation to pay money is generic. ?Et genis … perit?
Condemnation, confusion, compensation, novation, annulment, recission, but not fulfillment of a
resolutory condition because remember, for the instrument to be negotiable, the order or promise to
pay must be unconditional. So fulfillment of a resolutory condition does not apply for the
extinguishment of the obligation.
When the principal debtor becomes holder of the instrument at or after maturity in his own right. It
means, in his personal capacity. Because if you reacquired it as trustee, it will not apply, because it
is in his own right. Now if he required it before maturity, that will be a renegotiation to him, so he
can still renegotiate that further. But if he paid before maturity and he did not renegotiate the
instrument, he held on to it until it became due, the instrument will be discharged under subsection
E. That will then be the case where the principal debtor will be holder at or after maturity in his own
right.
Now, section 120 provides when a drawer and an indorser become discharged. First by any act
which discharges the instrument under Section 119.
By the discharge of a prior party: PN. A payable to B indorsed to C. B was discharged. C will also
be discharged because C has lost his right of recourse against B.
By the valid tender of payment of a prior party. So if B offered to pay but D refused it, C will also be
discharged because if that is not the rule, C will be prejudiced, so under the law he will be
discharged.
By release of the principal debtor unless the holder expressly reserves his right of recourse against
the parties in there liable. So if E here discharges A, B and C will be discharged unless he expressly
reserves the right of recourse against them.
Then Subsection F. By any agreement to extend the payment unless made with the assent by the
parties in there liable or the right of recourse against them is expressly reserved. Note that under
section F the parties in there liable are not discharged if the agreed to the extension. Unlike in
Subsection E, where even if the parties liable agree to the release of the principal debtor, they will
be discharged.
Now there are other grounds for discharge of parties in there liable, they are found in sections 89,
142, 144, and 188.
Now under Section 121, if the instrument is paid by parties in there liable, it is not discharged. If
this is paid by B, it is not discharged because there are still scores to be settled. They are still
entitled to demand reimbursement by A. But A will be remitted to his former rights with regard to
prior parties. Suppose C was the one who paid this to B. If at the time he took this inst., he was a
HIDC, he was not aware that this PN was issued to pay for a fake ring. But at the time he is paying
B, he was not aware of that, he will be restored to his rights of a HIDC, so he cannot raise that
defense against him. If that were not the rule, if you were C, you would not pay. “Why will I pay
you? I cannot recover from A because I am not aware. The same way if he were not a HIDC, he
will also remain as one who is not a HIDC. Remember as we said if you are not a HIDC, you cannot
improve your situation by negotiating it to a HIDC and getting it back. And he may strike out his
indorsements and all subsequent indorsements. So here if B paid, he can strike out his indorsement
and the indorsement of C. And he may negotiate the inst. again except id it was payable to a 3rd
person who was paid by the drawer or it was made for his accommodation and was paid by the party
accommodated because the party accommodated was the party ultimately liable.
Now under section 122, a holder may expressly renounce his rights against any party before , at,
or after maturity. Absolute and unconditional renunciation made at or after maturity discharges the
inst. But renunciation does not affect the rights of a HIDC without notice. So if C renounced all his
rights before this PN fell dues. But he indorsed it to D who is a HIDC, D can run after A and B.. The
cannot make the defense that C made the renunciation. IT will not bind D. But the renunciation
must be in writing unless it is delivered to the person primarily liable.
So a verbal renunciation which is not coupled by the surrender of the instrument is not effective.
There was a case in New York where the vice president of a bank told the maker of a PN, “O, never
mind, your debt is condoned.” The court said that is not binding because it was oral and the PN was
not surrendered. And a similar ruling was handed down by the CE of England where the holder said
he was renouncing the right but it was verbal, and the PN was not surrendered. Cancellation made
Unintentional.. well I had a client before who was the cousin of Justice Relova. That cousin of his
had a big parcel of land in Bacoor. He and his brothers owned that vast track of land. He was
telling me there were 2 developers of roads then. They said “Why don’t we from a joint venture.”
Your land is raw land. We will develop it, subdivide it, sell the land to the public, and divide the
profits equally among the four of us. 25% each. … But of course it will take time to develop and sell
the lots to the public. While we are not yet selling the lots to the public, every month, we will five
you and your brother PhP2,000 each drawing allowance, which will be an advance on your share in
the profits. First month, the first developer arrived in a Cadillac and expensive suit and paid the
allowance.. the second month, it was the second developer. The third moth it was the turn of the
fellow who came with the expensive suit. He said “Pare, medyo gipit ako, puwede bang abunuhan
mo?” So this fellow advanced. The fourth moth this fellow paid again, it was his turn. The next
time they had a meeting it was a heated altercation. Cause this fellow who reimbursed the 2 nd
developer issued a bouncing check. He said “pare, yung cheke mo tumalbog, ito ba yung cheke mo?
Ha?” He crumpled it. “Ibukha mo bibig mo! Ipakakain ko saiyo ‘to!”
Although he crumpled the check, there was no cancellation of the obligation. He did not intend to
cancel the obligation, if fact, he crumpled it in an outburst of anger.
Or by mistake like it was included in a batch of paper that was fed to the paper shredder by mistake.
Or without authority. Like there is somebody who was a visitor at the office and saw that lying
around and started doodling. That will not cancel the neg. inst.
Section 124 talks about alteration. If the instrument is materially altered without the assent of all
parties, it is avoided, except as against the party who has himself made, authorized, or assented to
the alteration, and subsequent indorsers.
This is what the rule is saying. A issued a PN to be for 4K and C altered it to 40K.. What the Law is
saying is that since C altered it, the instrument is avoided as against A and B. However, C and D will
be liable for 40F because C was the one who made the alteration and D is an indorser, he warrants
that the instrument is genuine in all respects what it purports to be. So what is the liability of E? It
depends. If he is HIDC, he can enforce it from A and B in the original amount of 4K.. That’s what
the law says. If he is not a HIDC, he cannot collect form A and B. A and B cannot be liable on the
40K, whether or not B is a HIDC because they bound themselves for 4K. You cannot change the
contract without their consent. So the most that he can collect as a HIDC is 4K. But whether or not
he is a HIDC, he can collect from C and D 40K. Because C altered the inst. and D is an indorser.
Remember we said that an indorser is liable whether or not the holder is a HIDC
And Section 125 states when there is material alteration … First when the date is changed.
Second, when the sum payable, either as the principal or interest, is changed. Third when the time
or place of payment is changed. Why? This will affect the swiftness with which indorses can be
notified of dishonor. And that is crucial for indorses because they have potential liability, and they
would want to terminate that potential liability as soon as possible. Then when the number or
relations of the parties is amended. Like when there is only one maker, you added another maker.
The medium or currency of payment to be made. Provides for payment in pesos, it was changed to
dollars. Or which adds a place of payment where none was specified. Or any other change which
alters the effect of the instrument. So that is the test. Does it alter the effect of the inst.? So you
placed a witness where there was no witness. That is not material alteration. It does not change
the effect of the provisions of the instrument. Now in that PNB vs. CA, where the serial number of
the check was changed, and PNB paid it, and when they discovered the changed, the wanted to get
back the money. The court said no, that was not a material alternation.. The change in the serial
Montinola case: In the old days, the provincial treasurers were the ex officio representatives of
PNB so automatically they had a branch in every province. The government issued a check in favor
of a treasurer for the expenditures of the USSAFE. But Jonathan Wayneright surrendered all the
members of the USSAFE. And so the money was not spent. The treasurer/payee became sick. He
needed money to pay for medicines. So he indorsed the check it part to Montinola. Now Montinola
studied the law. said check. The drawee is not liable unless he accepts, and a partial indorsement is
not valid. He obliterated, he smudged the partial indorsement, and made another indorsement
below that. The indorsement was a forgery. And he know that the indorser is not liable so he made
it appear that it was issued by the provincial treasurer in his capacity as representative of PNB.
Because if so, the drawer and drawee is PNB, the same person. So he can treat it as a promissory
note, so he can sue even if it has not been accepted. But Justice Sanchez said it was forgery,
material alteration. Because it was indorsed in part only. He made it appear as though it were
indorsed again for the whole amount. And he altered the capacity in which the treasure signed it.
He sighed that as treasurer, and not as representative of the PNB. Why, because it was counter-
signed by the auditor. Because if that was signed as representative of the PND, the auditor would
not have counter-signed. That’s why the court said he could not collect, because there was material
alteration.
2. Trade acceptance
This is not covered anymore because purchases are usually financed by letters of credit
instead.
Joson vs. Hernandez Hermanos (???)
o Where the seller would draw a bill of exchange and would be accepted by the buyer.
That is how the payment for the articles bought would be relayed.
4. Banker’s acceptance
Connected with letters of credit
“Here is a company(XYZ, Corp.) that wants to buy chemicals from let’s say Du
Pont in the United States. So they will say, OK, you apply for a letter of credit (We will take
that up later when we get to the Code of Commerce). Just like the principle of a credit card,
9. Sight bills
Payable on demand
Section 127
A bill, does not of itself, operate as an assignment of the funds in the hands of the drawee and
the drawee is not liable unless and until he accepts.
That’s why the drawer can stop payment
Section 128
A bill may be addressed to two or more drawees jointly.
E.g to Jose Cruz and Manuel Santos . BUT NOT in the ALTERNATIVE. You can’t say to Jose Cruz
OR Manuel Santos, or Jose Cruz OR IN HIS ABSENCE, Manuel Santos.
Section 130 – if the drawer and the drawee are the same person (e.g. manager’s check/cashier’s
check); or the drawee is a fictitious person or a person not having capacity to contract (e.g minor),
there is no one to whom presentment can be made -- the holder may treat the instrument as a bill
of exchange or a promissory note, at his option.
In case of drawer and drawee are the same, the holder may treat it as a promissory note or bill
of exchange because there are no two parties who are the drawer and drawee. That’s why he’s
given that option.
The Supreme Court recently said in a case where a cashier’s check/manager’s check, you don’t
need to present it for acceptance because the drawer and drawee are the same. But they said
that this option is important because in case the holder fails to make a protest, he can still run
after the drawer and indorsers by exercising the option to treat it as a promissory note.
Section 131 – That in case of need, the drawer and indorser may insert the name of a person
whom the holder may go to in case of need. This is when the bill is dishonored by non-acceptance
or non-payment.
Holder’s option whether to resort to the referee in case of need.
ACCEPTANCE
Section 133
Holder is entitled to the acceptance be written on the instrument, and if that is refused, he should
treat the bill as dishonored and give notice of dishonor to the drawer and indorsers.
Section 134
Acceptance may be made on a paper other than the bill.
the separate piece of paper may refer to a bill that already exists, or may refer to a bill that’s
still to be drawn in the future, it does not yet exist
the section only applies to bills already existing
it will not bind the acceptor except in favor of a person to whom it is shown and who, on the faith
of it, receives the bill for value.
Because if he never saw the acceptance, it cannot be said that he relied on that acceptance for
making the decision to take the bill.
Section 135 - contemplates the situation where an acceptance is made on a bill that has not yet
been drawn.
it’s an unconditional promise to accept a bill before it is drawn is deemed an actual acceptance in
favor of every person who, upon the faith thereof, receives the bill for value.
It is not necessary that the holder see the separate acceptance (e.g. letter of credit – that is an
acceptance made by a bank on a separate document for a bill of exchange that has not yet been
drawn.)
Ochid Manufacturer’s Bank and Trust vs. Marfazan case – this fellow imported riding balls(???)
from Japan, and to pay for that, he applied for a letter of credit with Manufacturer’s Bank. So
the Japanese company drew ________ draft, to collect the proceeds, and the bank paid.
Because he failed to reimburse the bank, he was sued. His defense : I’m not liable because I
never accepted the Bill of Exchange/draft. The court said No, because in your application for the
letter of credit, there’s a stipulation. You said you will accept the draft to be drawn. That is
acceptance on a separate instrument, and so you are liable.
Section 136 – the drawee is allowed 24 hours to decide whether or not he will accept the bill.
if accepted, it will be dated as of the date it was presented.
Suppose a bill of exchange is drawn: pay 30 days after sight. And it was presented for payment
today and it is accepted the following day, the acceptance will be dated as of today. So you count
the 30 days as of today, not from the next day.
Section 137 – when the drawee destroys the bill or refuses within 24 hours or such other period as
the holder may allow to return the bill, it will be deemed accepted.
this is constructive acceptance.
The destruction must be intentional. If it was just by accident that it was destroyed (e.g.
included in a batch of papers that was fed to the paper shredder accidentally) that will not be
acceptance. It must be intentional.
The mere retention of the bill will mean acceptance.
If the holder demands the return of the bill, in less than 24 hours, he must return. The holder is
the owner of the bill of exchange. He is the one entitled to the possession of the bill. If he
decides to ask for the return, the drawee must return.
The law gives the drawee 24 hours to make up its mind whether he will accept or not. But he is
not entitled to keep the bill for 24 hours while he is making up his mind. So if that was
Section 138
A bill may be accepted before it has been signed by the drawer or while incomplete, or when it is
overdue, or after it’s been dishonored by refusal to accept or by non-payment.
But, when a bill payable after sight is dishonored by non-acceptance and is later on accepted, the
holder is entitled to have it dated as of the date of the first presentment. (e.g. if it was presented
for payment on a Monday, and the drawee said, the drawer has no funds with me, come back 3
days later, the drawer may have funds with me. And the drawer came back three days later, he
accepted it, the acceptance would be dated as of Monday, not as of Thursday.
Section 139
Acceptance is either general or qualified.
General acceptance – assents without qualification to the order of the drawer.
Qualified acceptance – varies the effect of the bill.
Section 140
An acceptance to pay at a particular place is general acceptance, unless it says : to be paid there
only and not elsewhere
e.g. a bill of exchange is drawn as payable at the head office of the Bank of the Philippine Islands
only.
But if it only says payable at the head office of the Bank of the Philippine Islands, that is not a
general acceptance.
Section 141
When the acceptance is qualified:
1. Conditional – which makes payment dependent on the fulfillment of a condition
e.g. I’ll accept if you will pass the government examination.
2. Partial – is only for the part of the amount of the bill
Bill for P50,000, accepted for P40,000 because that’s all the drawer has with me.
3. Local – payable at a particular place only
4. Qualified -- e.g. the instruction is pay 30 days after sight and the acceptor ordered payable 60
days after sight.
There are several drawees, but only some but not all accepted.
Section 142
The holder may refuse a qualified acceptance and he may treat the bill as dishonored and give
notice of dishonor to the drawer and indorsers
If the holder takes a qualified acceptance, the drawer and indorsers are discharged from liability
on the bill (as a rule) because they warranted that will be accepted according to the tenor as
drawn. Thus, if the acceptance was qualified, that would be changing the terms and conditions
of the contract without their consent. And that is not the contract they warranted.
However, if they expressly or impliedly authorize the holder to take a qualified acceptance, or
subsequently agree to it, they will remain liable.
When the drawer or indorser receives notice of the qualified acceptance, they must, within a
reasonable time, express their dissent, otherwise they will be deemed to have agreed.
Section 143
Presentment for acceptance must be made:
1. If the bill is payable after sight, because otherwise you cannot fix the date of maturity
2. Where the bill stipulates that it should be presented for acceptance
3. Where it is payable at a place other than at the residence or place of business of the
drawee
So that the drawee will know when the place of payment is not his residence, it’s not his
office.
E.g. he resides in Paranaque. His office in Makati. The bill is payable in Baguio City.
Since that is not his residence or his place of office, you would not expect him to be there
on the date of maturity.
Presentment for acceptance is required so that he would have advanced notice. Here is a
bill of exchange, drawn against you, payable at that place, which is not your residence,
not your office, so you better be there on the date of maturity to pay.
In no other case is presentment for acceptance necessary.
Prudential Bank vs. IAC
Involves a letter of credit opened by Prudential Bank to finance an importation
and it paid the draft/bill of exchange drawn by the exporter. When Prudential Bank asked
the importer to pay, he said I’m not liable, I’ve not accepted the draft. Court said,
presentment for acceptance was required where the draft was payable at sight.
Under Sec. 143, that is required.
Section 144
The holder must, unless exempted, to present the bill for acceptance or negotiate it within a
“reasonable time”.
Failure to do so would discharge the drawer and all indorsers
Section 145
How presentment for acceptance must be made:
by or on behalf of the holder
at a reasonable hour
on a business day
before the bill is overdue
to the drawee or some other person authorized to accept or refuse
1. Bill addressed to two or more drawees who are not partners – presentment made to
all unless one is authorized to accept or refuse for the others
2. Drawee is dead – presentment may be to his personal representative
3. Drawee declared bankrupt or insolvent, or has made an assignment for the benefit of
creditors – presentment to drawee or his trustee or assignee
Section 146
Days when presentment made
Any day on which a negotiable instrument may be presented for payment
If on a Saturday, as long as not a holiday, made before 12:00 noon
Section 148
Presentment for acceptance excused and bill treated as dishonored by non-acceptance:
1. If drawee is dead, or has absconded, or is a fictitious person, or a person not having capacity to
contract
Includes minor, insane, deaf-mute who cannot write, person suffering from civil interdiction
2. Where after exercise of reasonable diligence it cannot be made
3. Where presentment was irregular, acceptance has been refused on some other ground
E.g., it was presented on a Sunday but the drawee did not reject it on that ground but
because he says the drawer has no funds with me
Section 149
A bill is dishonored by non-acceptance:
1. If it is presented for acceptance and acceptance as prescribed by the law is refused or cannot be
obtained
2. If presentment for acceptance is excused and bill is not accepted
Contemplates the situation where presentment is required under section 143 but is
excused under section 148
Section 150
When a bill is presented for acceptance and is not accepted within the prescribed time,
the person presenting it must treat the bill as dishonored or he loses the right of recourse
against the drawer and indorsers
There must be notice of dishonor
Section 151
If a bill is dishonored by non-acceptance, an immediate right of recourse against the
drawer/indorsers accrues to the holder
He need not make any presentment for payment
E.g. bill payable Feb. 2002. Presentment for acceptance made but was not accepted by drawee
today. Holder need not wait for Feb. 2002, he can immediately run after the drawer/indorsers.
PROTEST
Section 152
If it is a foreign bill of exchange and it is dishonored, a protest must be made.
Foreign element present
Protest is made by a notary public or by a respectable resident of the place where the bill is
dishonored in the presence of two or more credible witnesses (Sec. 154)
Law requires that there must be somebody who is acceptable internationally to make the protest
Section 158
A protest for better security may be made if the acceptor has been adjudged bankrupt or
insolvent
Section is merely permissive
Purpose is to notify drawer/indorsers that the acceptor is insolvent therefore he cannot pay, and
that they should already make arrangements to pay
If it is not done, they will still not be discharged
Section 159
Protest is dispensed with under the same circumstances which would dispense with giving a
notice of dishonor
Delay is also excused if caused by a fortuitous event beyond the control of the holder
Section 160
When a bill is lost or destroyed or wrongly detained, protest may be made on a copy of it
BILL IN SET
Section 178. Bills in set constitute one Bill. – Where a bill is drawn in a set, each part of
the set being numbered and containing a reference to the other parts, the whole of the
parts constitutes on bill.
This is common in letters of credit. When the exporter of the good will collect from the bank
the proceeds of the letters of credit, for the goods he sold to an importer, he will draw a bill in set
usually in 2 parts, e.g. first of two parts… and then second of two parts. They will be mailed usually
one week apart to provide for contingency that if one is lost, the other part can, most probably, still
be received and thus, there can still be collection. (it’s the main idea behind bill in set: to provide for
the contingency that one part is lost in the event there is miscarriage in the mails).
Section 179. Right of Holders where different parts are negotiated. – Where two or more
parts of a set are negotiated to different holders in due course, the holder whose title first
accrues is, as between such holders, the true owner of the bill. But nothing in this section
affects the right of a person who, in due course, accepts or pays the parts first presented
to him.
If bills in set are negotiated to holders in due course, the one whose title first accrues is the
true owner. But, if the other party is able to get acceptance or payment first, then he is the one
who will be able to collect. In other words…
C ------ E -------- G
A - Draws a Bill in Set payable to B
- Addressed to X D ------ F -------- H
A with a bill in set , addressed X that bill is payable to B. B indorsed one part to C and the other
part to B. If the endorsement was first made to C, as between C and D, C will have a better right.
However, if D was able to go to X first and get the bill accepted, then D will be the one who will be
entitled to collect from X.
Section 180. Liability of holder who indorses two or more parts of a set to different
persons. – Where the holder of a set indorses two or more parts to different person he is
Section 181. Acceptance of bills drawn in sets. – The acceptance may be written on any
part and it must be written on one part only. If the drawee accepts more than one part
and such accepted parts are negotiated to different holders in due course, he is liable on
every such part as if it were a separate bill.
Acceptance may be written on any part, and should be written on one part ONLY. Now if the drawee
ACCEPTS both parts, then he will be liable on both parts. Well, that is his fault if he accepted both
parts.
Section 182. Payment by acceptor of bills drawn in sets. – When the acceptor of a bill
drawn in a set pays it without requiring the part bearing his acceptance to be delivered up
to him, and the part at maturity is outstanding in the hands of a holder in due course, he
is liable to the holder thereon.
If an acceptor of a bill drawn in set pays it without requiring the part, bearing his acceptance,
to be delivered to him, and that part is still out standing at maturity and it falls in the hands of a
holder in due course – then he ( acceptor) can be held liable. It is his fault for paying the holder
although the holder did not surrender to him the part which contains his acceptance.
Section 183. Effect of discharging one of a set. - Except as herein otherwise provided,
where any one part of a bill drawn in a set is discharged by payment or otherwise, the
whole bill is discharged.
Where any one part (of a bill in set) is discharge by payment, the whole bill is discharged
because the different parts constitute only one bill. So that, if the acceptor pays, he cannot require
the holder to produce all the parts. Precisely the bill is in set for the contingency that one party may
be lost so that the holder can still collect in the event one part is lost.
Section 184. Promissory note, defined. A negotiable promissory note within the meaning
of this Act is an unconditional promise in writing made by one person to another, signed
by the maker, engaging to pay on demand, or at a fixed or determinable future time, a
sum certain in money to order or bearer. Where a note is drawn to the maker’s own
order, it is not complete until indorsed by him.
Definition of a promissory note states that it is payable to the order of the maker. It is not
complete until he (maker)indorses it. This is because you need 2 parties to a contract. If the maker
and the payee are the same, you don’t have a contract. It the maker indorses it, he will be liable as
maker and indorser.
The Agbayani book mentions certain types of promissory notes like certificate of deposits...
well, those will be negotiable if it complies with the requisites of the negotiable instruments law.
Remember the case of Caltex. Angel dela Cruz and the negotiable certificate of time deposit with
Security Bank and Trust. It says “ This is to certify that bearer has so much on deposit repayable to
the depositor. “
Bonds are nice looking promissory notes that looks like a diploma. This usually refers to
promissory notes involving huge amounts which will have a long maturity date. You’ll be talking
about hundreds of millions of dollars or pesos with maturity date of 5 years. (This was why Mr.
Villar got into trouble, remember that he floated a dollar bond in Europe when the rate of exchange
was 26:1. Note that he needed to stay in power, otherwise the bank will close in.)
Bank Notes
“Wala na rin iyan” because in the old days these were used. If you were in possession of that
they will replace that in cash. This is just like what they use in Hong Kong as money. The bills
issued by HK Shanghai Bank and Chartered Bank, these are bank notes, and because the bank
will replace it with legal tender and when you surrender it, people will freely accept them – just
like money.
Today, these notes are prohibited (as stated in the Central Bank Act). One of the phenomenons
of WWII, each country had a central bank for monetary policies. To be able to control the
amount of cash, the government prohibited the use of Bank notes as people would treat them as
cash thus making it difficult to control the money in circulation. Control of money in circulation is
important to be able to respond to times of inflation or deflation. Although now, government
cannot control money as they used to because of credit cards. Even if banks reduce the money
in circulation, people may still use their credit cards. (Tells the story during the U.S. Recession
where people purchase cars on credit, no interest, no down, no monthly installments - 3 zero
scheme)
Section 185. Check defined. – A check is a Bill of Exchange drawn on a bank payable on
demand. Except as herein otherwise provided, the provisions of this Act applicable to a
bill of exchange payable on demand apply to a check.
Checks are spelled by the British people as cheque, it was called as such because
It is a special type of a Bill of Exchange. It’s a bill of exchange (BOE) , drawn on a bank payable
on demand. So, you don’t need to present them for acceptance, you present them for payment
right away.
This particular BOE had serial numbers, unlike ordinary BOE. To be able to verify the identity of
this particular type of BOE, you would CHECK the serial number. Most commercial transactions
are done through checks.
Provisions of the law on Bills of Exchange are also applicable to checks. This is why AmJur
says that the rule that - if the drawee retains a BOE for 24 hour that amounts to acceptance, is also
applicable to checks. Therefore, if you don’t return the checks for 24 hours, you have deemed
accepted it.
Certified Checks
“Hindi na nagse-certify ng cheque ang mga bangko ngayon” if you go to the bank, they will ask
you to buy a cashier’s of manager’s check instead. This is probably because they are afraid of
complications in the event the amount is altered right after they certify the check.
However, the Rules of Court states that in execution, the sheriff before levying, the debtor can
pay through a CERTIFIED CHECK. And the co-chairman of the committee which drafted that
(ROC) is Justice Feria.
Traveler’s check
Not as popular today because of international credit cards. You can still buy these traveler’s
checks in different denomination (i.e. $20, $50 etc). It was American express who started this.
You sign them above or elsewhere indicated. When you use the TC for payment abroad, you
present your passport to show your identity ‘that you are the person whose signature appears on
the traveler’s check’ and then you sign it. The previous signature will be used as a standard of
the signature you are affixing. Now, together with your passport, they will accept your TC as
payment. In order for the entire scheme to work, the establishment must be assured that the
banks will honor it, without any questions ask (just like your credit cards). Anyway, the whole
scheme is insured.
Means through which you will be able to carry your funds safely
When lost, bank will replace them up to a certain extent . Am Express guarantee $300 outright,
the rest of the amount will be subject to investigations.
Crossed Checks
With parallel lines on the upper left-hand corner
In Bataan Cigar, the court said that the crossing of a check has 3 Effects / Consequences:
1. It cannot be encashed over the counter, but must be deposited in a bank
2. Can be endorsed only once
3. To be a Holder in due course, the holder must inquire:
a. What is the nature of the title of the payee
b. For what purpose did he acquire it
Actually a precautionary measure to assure that the intended payee is the one who will get the
money. This is true especially if you will mail the check.
May be
General
Special – if you name a specific bank. This will mean that you have to deposit the check to
the named bank and no other bank, this is rare. The idea is to require it to be deposited to
avoid loss by theft. Note that the greatest enemy of THIEVES is TIME ELEMENT. She has to
get away before she is discovered.
Now, if she steals a crossed check for deposit. She still needs to open a bank account
in the name of the payee. She will have to fabricate two I.D.’s; deposit the check; wait for
the check to be cleared before she can withdraw the money. By this time, the owner of the
check would have discovered it was lost, informed the drawer about the loss and there could
have been and order for stop payment in the bank. Therefore, it is a precautionary measure
A CROSSED CHECK IS STILL NEGOTIABLE. Chang Juan Case: A check was issued to Chang
Juan, it was crossed. He presented it for encashment over the counter, it was dishonored. He
was running after the drawer. SC says that: you cannot hold him (drawer) liable because you
(Chang Juan) did not make the proper presentment of payment. The check is a crossed check, it
cannot be encashed over the counter. It must be deposited.
Section 186. Within what time a check must be presented. – A check must be presented
for payment within a reasonable time after its issue or the drawer will be discharged from
liability thereon to the extent of the loss caused by the delay.
PNB v. Sito
The SC said, if there is delay in presenting the check for payment, the indorser is discharged.
He need not prove that he is prejudiced. Prejudice is presumed. By the fact that there was undue
delay, the potential liability was unduly prolonged. So long as there is undue delay in the
presentment of check for payment, indorsers are discharged. But the drawer, according to this case
will only be discharged to the extent he suffered the loss because of the delay.
This will only happen if the bank goes bankrupt such that if the check were presented on
time, the check would have been fully paid, but because of the delay, the bank became bankrupt –
hence could only probably get 10 centavo per peso.
If the bank did not go bankrupt, there is no prejudice.
Jamal v. Estacio
Jamal sold ladies underwear to Estacio. Estacio issued a check. However, jamal never
presented the check so it became stale. So now he sued Estacio for payment.
SC: It there was delay in the presentment of the check, under the law Estacio will be
discharged only to the extent of the loss. He has not shown that he has suffered loss because of the
delay. “Hindi naman nabawasan iyong bank account nya e sapagkat walang DINEBIT.”
Therefore, there will be a loss only when the bank is bankrupt. I mentioned this case
because there was an occasion where J. Kapunan said that if there was delay the DRAWER is
discharge from liability/onerous obligation because the civil code provides – when you pay an
obligation with a negotiable instrument. The obligation is deemed paid if the negotiable instrument
is paid OR it is impaired through the fault of the payee – JACK REITERATES: being impaired through
the fault of the payee DOES NOT contemplate a situation where it was not presented for payment.
For example, the payee altered the amount and the bank discovered it, payee cannot go back to the
drawer and ask for another check. This is the penalty that the law imposes upon him.
Now, in a decision this year (still referring to 2001) J. Kapunan this time said “No, although
the check was not presented and became stale, since there was not prejudice or loss cause to the
drawer, the obligation subsists. This is the correct doctrine.
Section 187. Certification of checks; effect of. – Where a check is certified by the bank on
which it is drawn, the certification is equivalent to an acceptance.
Section 188. Effect where the holder of check procures it to be certified. – Where the
holder of a check procures it to be accepted or certified, the drawer and all indorsers are
discharged from liability thereon.
As I have said, banks do not certify checks anymore.
Section 189. When Check operates as assignment. - 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.
In this section, as I have, said Checks are not certified anymore, they are merely presented
for payment.
There was a decision of J. Mendoza which is not correct.
What happened was that there was a real estate transaction, the seller was supposed to pay
for the Capital Gains Tax. The seller did not pay it so the buyer was the one who paid. The Seller
SECTION 190:
Contains definitions like the holder – the payee or indorsee of a bill or note who is in
possession of it, or the bearer thereof. This is why Branan says that the payee can be a holder in
due course.
The person primarily liable is the person absolutely required to pay, that is the maker and the
acceptor. All other are secondarily liable because their liability is conditional on the party primarily
liable failing to pay. These are the drawer, indorsers, persons negotiating by delivery.
Reasonable time – depends on the nature of the instrument, commercial customs (like the
banks here, they honor checks within 6 months), and the facts of each case.
Computing the time – like in civil law, admin code – exclude the first, exclude the last. It
the act falls on a holiday, you have until the next business day to do it.
Any disputes involving negotiable instruments – apply first the law (NIL), if there’s any
deficiency, apply civil law in a suppletory manner. Note that if there’s a provision in NIL, do not
apply other laws. For instance, what is the effect of payment an obligation covered by a negotiable
instrument. This is not provided in NIL, therefore apply Civil Law which states that: the obligation is
deemed paid if the instrument is honored and paid OR impaired through the fault of the payee.