Académique Documents
Professionnel Documents
Culture Documents
*
Dean and Professor of Law, University of Sharjah, UAE. Department of Law, Yarmouk University, LL.B. 1999; James E. Rogers College of Law, University of Arizona,
LL.M. 2001; Washington College of Law, American University, S.J.D. 2005. Special thanks to the reviewers for their insightful critique and helpful comments.
1
See B. Geva, “From Commodity to Currency in Ancient History: On Commerce, Tyranny, and the Modern Law of Money” (1987) 25, Osgoode Hall L.J. 115, 130.
2
See Central Bank of Jordan, Yearly Statistics Series-Check Clearing at http://www.cbj.gov.jo/uploads/si_15.xls [Accessed 28 September 2015].
3
See Geoffrey R. Gerdes and Jack K. Walton II, “The Use of Checks and Other Non-cash Payment Instruments in the United States” (2002) 88 Fed. Res. Bull. 360, 360.
4
The terms “commercial papers” and “negotiable instruments” can be used interchangeably. See Ronald J. Mann, “Searching for Negotiability in Payment and Credit
Systems” (1997) 44 UCLA L. Rev. 951, 983 (the term “commercial paper” generically describes all types of commercial negotiable instruments: promissory notes, drafts,
cheques and certificates of deposit). See also William H. Lawrence, “Diagramming Commercial Paper Transactions” (1991) 52 Ohio St. L.J. 267, 271.
5
See Jordanian Code of Commerce No.12 of 1966 art.123.c.
6
Such leverage, however, is not possible with instruments payable at a definite time such as promissory notes or bills of exchange. Time instruments are not due until the
date specified in the note, and demand for payment cannot be made until that date arrives. See Kurt Eggert, “Held up in Due Course: Codification and the Victory of Form
over Intent in Negotiable Instrument Law” (2002) 35 Creighton L. Rev. 363, 375, 377–389.
7
A cashier’s cheque is one issued by a bank, and sold to its customer to be payable to a third party, while a teller’s cheque is drawn by a bank on another bank. A traveller’s
cheque is an instrument issued by banks and non-banks that is payable to the order of the purchaser and is payable on demand. See Alex Y. Lieberman, “Checking in and
Cashing out: Cashier’s Check Fraud, Depository Liability and Proposed Solutions” (2008) 12 N.C. Banking Inst. 353, 356. See Gregory E. Maggs, “Determining the Rights
and Liabilities of the Remitter of a Negotiable Instrument: A Theory Applied to Some Unsettled Questions” (1995) 36 B.C. L. Rev 619. See also Henry H. Perritt Jr, “Legal
and Technological Infrastructure for Electronic Payment Systems” (1996) 22 Rutgers Computer & Tech. L.J. 1, 10–13.
8
See Leona Beane, “Rights of Drawers, Banks, and Holders in Bank Checks and Other Cash Equivalents” (1984) 19 Tulsa L.J. 612.
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Contradictory Terms in Cheques: Formalism and Practice 33
9
See Jordanian Code of Commerce No.12 of 1966 art.229. See also Court of Cassation, Case No.1731/2005, Adaleh Publications (2005).
10
See Jordanian Code of Commerce No. 12 of 1966 art.228.a. See also Court of Cassation, Case No.258/88, Journal of Bar Association 328 (1990).
11
See Jordanian Code of Commerce No.12 of 1966 art.228.b.
12
See Court of Cassation, Case No.153/87, Journal of Bar Association 1028 (1988) (The cheque is not considered a negotiable instrument if it contained a condition that
it would be paid if the land is sold.) See also Court of Cassation, Case No.1785/2006, Adaleh Publications (2006).
13
See Jordanian Code of Commerce No.12 of 1966 art.231.a.
14
Jordanian Code of Commerce No.12 of 1966 art.228.b.
15
Jordanian Code of Commerce No.12 of 1966 art.228.c, d and e.
16
Jordanian Code of Commerce No.12 of 1966 art.230. See also Arthur Lewis, Banking Law and Practice (Tudor Business Publishing, 1998), p.155.
17
Prescription is a mode of barring of actions as a result of inaction for a period of time. Prescription is not merely a mechanism for the release of debts; rather, it is a mode
of extinction of claims. See Mahir Jalili, “Time Bar Clauses in Saudi Arabian Contracts,” (1996) 13 Int’l Construction L. Rev. 488, 490–91. See also Reinhard Zimmermann,
Comparative Foundations of the Law on Set-Off and Prescription (2002), 76.
18
See Jordanian Code of Commerce No.12 of 1966 art.228.f.
19
Jordanian Code of Commerce No.12 of 1966 art.123.
20
Jordanian Code of Commerce No.12 of 1966 art.233.
21
Jordanian Code of Commerce No.12 of 1966 art.230.
22
See James E. Byrne, “Negotiation in Letter of Credit Practice and Law: The Evolution of the Doctrine” (2007) 42 Tex. Int’l L.J. 561, 563–564.
23
See Jordanian Code of Commerce No.12 of 1966 art.239. See Court of Cassation, Case No.4179/2005, Adaleh Publications (2006).
24
See Jordanian Code of Commerce No.12 of 1966 art.144.
25
Jordanian Code of Commerce No.12 of 1966 art.240.
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34 Journal of International Banking Law and Regulation
An endorsement can be a “blank endorsement” which establish his case for recovery by simply producing the
specifies no specific person and just consists of a cheque and establishing the authenticity of the drawer’s
signature.26 A blank endorsement can convert a cheque signature. Once the case is substantiated, the payee is
into a bearer cheque. An endorsement can be also a entitled to recover unless the drawer establishes a defence.
“special endorsement” which specifies the person to In this case, the payee can recover the unpaid amount of
whom order the cheque is payable and requires that the cheque, interests, and other charges.
person’s endorsement to enable further negotiation of the
instrument. Thus, a blank endorsement can be converted Formalism and practice: A dissonance
into a special endorsement by adding words identifying
the person to whom the instrument is to be paid. The largest volume of negotiable instruments handled by
In general, negotiation of a cheque cannot be prevented. banks is cheques. Cheques are simplified documents with
However, it is possible to restrict further negotiation by certain pre-determined requirements. The volume of
indicating in the endorsement that it is “for collection” papers involved in cheques forced banks in Jordan to
or “for deposit”.27 In this case, there can be no further resort to automation and computerisation.32 Some legal
negotiation and the cheque enters into the bank collection requirements for a cheque can be outdated in the digital
process. A way to increase the value of the instrument is age. In practice, banks ignore some formalities as a result
by an endorsement “collection guaranteed”.28 This type of the volume of paper involved. However, courts have
of endorsement gives rise to liability in the guarantor only been unprepared to go along with bank’s practices.
when the cheque after being presented was not honoured. One area of divergence between formalism and practice
is contradictory terms. The law in Jordan does not provide
specific provisions that address for example the case
Presentment and payment
whereby typewritten terms on the cheque differ from
A cheque is payable on demand.29 Presentment is the printed terms or numbers. In comparison, in the US, the
demand to honour the instrument made upon a drawee Uniform Commercial Code (“UCC”) reconciled
to pay the cheque that has become due. The cheque contradictory terms. For example, the UCC provides that
collection process is not instantaneous. In most cases, the typewritten terms prevail over printed terms and
payee presents the cheque directly to the payor bank for handwritten terms over both. Additionally, words prevail
payment or the payee will deposit the cheque at another over numbers.33 Thus, law in the US expressly attempts
bank for collection which will forward the cheque, usually to reconcile the difference caused by contradictory terms.
through intermediary banks, to the payor bank. The bank In Jordan, courts have stepped in to fill the gap that exists
will review the signature(s) and examine the cheque for in the law. However, banks still do not follow courts’
alterations or other indication of fraud. The depositary decisions and rather follow their own practices. An
bank will require the payee to indorse the cheque and that examination of the divergence between formalism and
endorsement will trigger the collection process. Since practice in Jordan with regard to contradictory terms in
cheques in fact are paid, each collecting bank in the chain cheques is illustrated in the following case.
gives provisional credit for the amount of the cheque to
its predecessor in the chain as the cheque moves toward The case
the payor bank.30 Then, in the unlikely event that the payor
bank dishonours the cheque, the credits can be reversed. On 30 February 2014, the drawer executed a cheque to
In the case that a cheque is presented for payment Waleed Al-Khateeb, the payee, in the amount of Jordanian
before the date indicated as the date of issue, it is payable Dinar (JOD) 7,587 (equivalent to US $10,707) written in
on the day of presentation. Once payment is made, the words.34 However, the amount of the cheque was
drawer and drawee are discharged. If the cheque, JOD7,578 (equivalent to US $10,695) in numbers. Later
presented in due time, is not paid, then the payee can sue on, Waleed presented the cheque for payment to the
the drawer, endorser, and other obligees.31 The payee can Housing Bank for Trade and Finance. The Housing Bank
for Trade and Finance refused to accept the cheque
26
Jordanian Code of Commerce No.12 of 1966.
27
Jordanian Code of Commerce No.12 of 1966 art.148. See Court of Cassation, Case No.601/1988, Journal of Bar Association (1988).
28
See Jordanian Code of Commerce No.12 of 1966 art.149.
29
Jordanian Code of Commerce No.12 of 1966 art.245. See Court of Cassation, Case No.2266/2001, Adaleh Publications (2001).
30
This practice is characteristic of the US cheque collection system. It is reflected in the rules of UCC art.4 concerning the entry of provisional settlements as cheques are
forwarded for collection. See William F. Savino and David S. Widenor, “Commercial Law” (2007) 57 Syracuse L. Rev. 837, 856.
31
See Jordanian Code of Commerce No.12 of 1966 art.260.
32
Jordan adopted an electronic collection for cheques. The purpose of this system is to eliminate the physical movement of paper. Also, the electronic collection of cheques
is intended to speed up the cheque collection process and to expedite the availability of funds to depositors. The depository bank, instead of physically sending a cheque
for collection, simply forwards a computerised image. See “Jordan Starts the System of Electronic Collection of Checks” (February 2008) Vol.27 Banks in Jordan Magazine
34.
33
See UCC § 3-114 (2005).
34
See Court of Cassation, Case No.4010/2014, Adaleh Publications (20 December 2014).
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Contradictory Terms in Cheques: Formalism and Practice 35
because of the difference between words and numbers. The Court of Cassation saw in Waleed’s case an
Waleed filed suit in Amman Court of First Instance on opportunity to settle the question of contradictory terms.
June 13, 2013 against the drawer and the Housing Bank The foundation of the Court of Cassation decision is
for Trade and Finance.35 The Court of First Instance ruled instructive. There is no clear text in the law that would
in favour of Waleed.36 The Court of Appeals reversed. guide the court in making its decision. Code of Commerce
The court reasoned that the Instructions of the Central art.3 provides the court with the authority to resort to
Bank No.23 of 1971 and their amendments permit banks judicial precedents and reasoning if the law is silent.
to refuse to accept a cheque for irregularities. Also, the The Court of Cassation provided a well-reasoned
Court of Appeal based its decision, in part, on Egyptian decision when it announced that in case of contradictory
jurisprudence. terms words prevail over numbers. In writing out
The Court of Cassation rejected the argument made by numbers, more care has been taken to make sure the right
the Court of Appeal. The Court of Cassation stated that term has been used. The Court of Cassation could simply
the Instructions of the Central Bank No.23 of 1971 and have referred to the practice and custom of banks. The
their amendments apply to relationships among banks notion of interpreting terms by referring to custom or
and do not address the relationships between banks and practice is not alien to Jordanian law. In order to achieve
their customers.37 Therefore, the Court of Appeal erred uniformity and consistency with respect to cheques law,
in basing its decisions on the Instructions of the Central the court entertained a discussion of why words should
Bank. prevail over numbers. The court tried to harmonise
The Court of Cassation stated that the cheque in divergent practices of banks with regard to contradictory
question is unclear and ambiguous as there is a difference terms.
between words and numbers. The court found that words Thus, the test that emerged from Waleed’s case is
prevail over numbers on the basis of the presumption that instructive. The court did not, for example, leave it to
by writing out numbers, more care has been taken to make banks to determine whether to accept a cheque with
sure the right term has been used.38 The Court of Cassation contradictory terms for the lesser amount, larger amount,
drew a parallel to earlier precedents to support its position pay according to words, or pay according to numbers. In
that words prevail over numbers.39 fact, the court’s test is clear. If contradictory terms exist
in a cheque, then according to the court, words should
Analysis prevail over numbers.
In so ruling, the Court of Cassation could have referred
The law in Jordan does not address the case whereby the to the laws of other countries such as the US. In the US,
amount of the cheque as written out is different from the there is an explicit provision concerning the issue of
amount stated in numbers. The practices of banks varied contradictory terms.42 However, the Court of Cassation
when faced with a cheque that has conflicting terms. did not refer to foreign laws and jurisprudence as the
Some banks refuse to accept the cheque if the amount Court of Appeal did. The reason for the approach adopted
written in words is different from the amount written in by the court could be attributed to the fact that Jordanian
numbers.40 So, banks send such a cheque to the drawer law does not create significant externalities. Many in
for correction. Other banks accept a cheque whereby Jordan would resist the temptation to apply foreign laws
words differ from numbers. However, in the latter case, into domestic legal issues. Domestic courts should address
these banks pay the lesser amount.41 For example, suppose only local matters. Foreign laws are written for different
a cheque is made for JOD22,000 in numbers and for environments or circumstances that do not necessarily fit
JOD2,200 in words. In this case, banks would pay the well in Jordan. For the moment, however, the Court of
JOD 2,200 since it is obviously the lesser amount. Also, Cassation believed that local jurisprudence suffices to
if the cheque is made for JOD2,200 in numbers and for solve local matters.
JOD22,000 in words, banks would pay JOD2,200 since
it is the lesser amount. In sum, banks would pay the lesser
Legislative solutions
amount in the cheque whether it is the written words or
numbers. The decisions of the Court of Cassation make it clear for
banks that in case of contradictory terms in a cheque,
words prevail over numbers. However, banks in Jordan
35
The Judiciary branch in Jordan is divided into three categories: regular courts, religious courts, and special courts. Regular courts, Nizamiyya, have jurisdiction in all
matters, including trade. Trade cases, if they are within JOD3,000 value limit, which is updated from time to time, could be heard before Courts of Peace, akin to small
claims courts in the US. Trade cases could also be heard before Courts of First Instance, Court of Appeal, and Court of Cassation which stands at the apex of the judiciary.
Currently there are 73 courts in Jordan. The Court of Cassation decides on matters of law or procedure. It could affirm the decision of the Court of Appeal, or remand it for
further reconsideration. See Jordan CONST. art.99. See also Law of Courts of Peace No.15 art.3.1, Official Gazette No.1102 (16 March 1952) as amended by Law No.13
of 2001, Official Gazette No.4480 (3 March 2001).
36
Court of Cassation, Case No.4010/2014, Adaleh Publications (20 December 2014).
37
Court of Cassation, Case No.4010/2014, Adaleh Publications (20 December 2014).
38
Court of Cassation, Case No.4010/2014, Adaleh Publications (20 December 2014).
39
See Court of Cassation, Case No.46/94, Journal of Bar Association 1789 (1994) (the cheque must be free of any ambiguity. Therefore, there is an ambiguity in a cheque
drawn for US $60,000 in writing and JOD60,000 in numbers).
40
See “Judicial Activism in Checks” (November 2005) Vol.24 Banks in Jordan Magazine 44.
41
“Judicial Activism in Checks” (November 2005) Vol.24 Banks in Jordan Magazine 44.
42
See UCC § 3-114 (2005).
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36 Journal of International Banking Law and Regulation
still follow their own practices and ignore decisions of The law on negotiable instruments was drafted more
the Court of Cassation. In case of contradictory terms, than 60 years ago and is in need of revision. The law
banks refuse to accept the cheque or pay the lesser should modernise language and take into account
amount.43 Banks reason that in such a case, they assume technological developments and changes in business
bad faith on the part of the drawer and desire to avoid practice. In addition, the revision resolves conflicting
being entangled in litigation. The reasoning of banks is lines of case authority. In sum, the law should promote
all but flawed. Although conflicting terms of words and simplicity, clarity, and uniformity. To achieve these goals,
numbers can be attributed to bad faith on the part of the the law could have rules governing virtually all of the
drawer, the conflicting terms could be the result of commonly arising problems. Alternatively, the law could
mistake or negligence. contain rules general and flexible enough to permit courts
Reforming the law regarding contradictory terms seems to shape predictable answers to unforeseen questions.
the viable solution. Any sound legislative solution must This generality could be achieved by incorporating an
address the customer right to know, before an account is element of judicial discretion into the rules. Without this
opened and periodically after it is opened, the general flexibility a court would not be able to stretch the rules
policy of the institution with regard to cheques. Further, to accommodate unforeseen circumstances.
the customer needs to be informed of the bank’s decision Courts’ decisions construing contradictory terms in
to place a hold on any specific item. The law must also cheques are clear. For example, words prevail over
restrict the opportunity for banks to vary their practices numbers whenever there is a conflict between them. These
by providing explicitly that words should prevail over decisions provide a sound rationale; by writing out
numbers in case of contradiction and provide an numbers, more care has been taken to make sure the right
appropriate penalty for violations. term has been used. At first blush, these decisions seem
The amendment of law with regard to conflicting terms to solve the matter. However, the matter is far from
will help mitigate the burgeoning problem of returned reconcilable and even raises bigger issues.
cheques in Jordan.44 Moreover, the amendment will A court must explicitly state that its interpretation is a
provide certainty for payees in the face of divergent court general one and is not intended to be limited to the
decisions and bank practices. specific facts of that case. Courts deciding cases must
hold that even if banks prove its conformity with local
Conclusion practice, banks will have to follow courts’ jurisprudence.
When the law has been in force for a time, has been
The bulk of payments in the Jordanian economy are made interpreted in a series of judicial decisions, these decisions
by cheques. Currency forms only a small portion of the themselves become part of the law complex: the meaning
monetary system. In a sense, therefore, cheques are of the law must now be sought not merely in the legal
considered currency substitutes. The viability of using text but in the law and the cases that have been decided
cheques in the payment system depends on the clarity under it.
and consistency of the law, courts’ decisions, and banks’ The failure of banks to embrace courts’ decisions
practices. should be taken not as proof of satisfaction with the
The law, as currently stands, fails to provide present law but as a clear demonstration of disregard to
comprehensive rules for cheques. For instance, although courts’ jurisprudence. Unless there is a re-evaluation of
they were in use, there is no mention in the law of basic concepts, the rationalisation of payment systems
cashier’s cheques or teller’s cheques. The uncertainty law will continue to be an elusive goal. Until the
with regard to contradictory terms in cheques not only Government acts, courts should continue to construe
threatens to jeopardise the viability of cheques as an cheques in light of their jurisprudence.
integral part of the current payment system, but promises
to generate increased litigation.
43
Telephone Interview with Khaled Badawi, Branch Manager, Amman-Arab Bank (11 November 2014).
44
See Ali Shaheen, “Returned Checks in Jordan and the Role of Monetary Policy and Banking Management in Addressing the Issue” (2003) Vol.6.2 Irbid Journal for
Research and Studies 65, 70 (the number of returned cheques in Jordan is increasing). See “The Central Bank Issues Instructions of the Returned Checks Unit” (July 2005)
Vol.24 Banks in Jordan Magazine 16–18 (On 4 August 2005, the Central Bank of Jordan issued the Instruction for the Unit of Returned Checks in order to minimise the
phenomenon of returned cheques). See also Isam Qadamani, “Bounced Checks” Al Ra’I Newspaper, 20 April 2008 (the percentage of bounced cheques in Jordan reached
76%).
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