国际结算chapter2

1、CHAPTER 2 Negotiable InstrumentsContents01General Introduction02Bill of Exchange 03Promissory Note04Check2.1 General Introduction01What is negotiable instruments02Characteristics 03Functions04Legal Systemwhat is negotiable instrumentsDocuments are playing more and more important roles in internation

2、al settlement because payments are made against documents rather than the actual goods.Broad meaning of Document Document of Title, evidence that gives rise to a legal right of possession or control of commodities or money.CommercialDocument Financial Document represents the title of goodsrefer to n

3、egotiable instrument made for the purpose of making or collecting paymentsNarrow meaning of Documentpromissory notesDraftschequeswhat is negotiable instrumentsNegotiable instruments: understand from words meaning Negotiable:ransferable from one person to another by delivery or by delivery and endors

4、ement Instrument:Written legal documentNegotiable instruments: Simple definition Written legal document which can be transferred from one person to another by delivery or by delivery and endorsement(背书）what is negotiable instrumentsNegotiable instruments: Professtional meaningA written promise or or

5、der signed by the maker to transfer a specified sum of money on demand or at a fixed future time to the person named on the instrument or to the bearer.Examples of negotiable instruments: Bill of Exchange Promissory Note Checkwhat is negotiable instrumentsEssentials of a negotiable instrument Be in

6、writing Be signed by the maker or drawer Be an unconditional promise or order to pay State a fixed amount of money Be payable on demand or at a definite time Be payable to order or to bearerCharacteristics of Negotiable Instruments1. Right to be paid 设权性：Establishing the claim for a sum certain in m

7、oney(票据创设了付给一定金额的请求权） The aim of issuing instrument is not to prove the existed rights and obligations, but to establish some rights and obligations. Characteristics of Negotiable Instruments2.Non-causative 无因性： Accepting the instruments without investigating or questioning(票据是无因证券，不必追究原因的证券） Once t

8、he instrument is issued, rights on the instrument and reasons why instruments are created are separated，independent to each other.(票据一旦做成，票据上权利即与其原因分离，成为独立的票据债权债务关系，不受先前原因关系存在与否的影响）Characteristics of Negotiable InstrumentsExample: A deposit money in B, and A buys goods from C, then A issued an instr

9、ument to C, paid by B; C transfers the instrument to D because C once borrowed money from D; And D transfers the instrument to E for some value relationship; E asks B to make payment.Characteristics of Negotiable Instruments3.Requisite in Form 要式性：The form of instruments should keep up with law. Onl

10、y those accordance with law can be protected.4. Negotiability 流通性：Instruments is usually capable of being transfered or negotiated, that means the title to a negotiable instrument can be passed from person to person by mere delivery or by endorsement followed by delivery. 5. Recoursement 可追索性：Instru

11、ments has the right of recourse in case of dishonour of payment or acceptance.Functions of Negotiable Instrumentsv Acting as transferable tools(汇兑工具） Direct cash payment in international transaction is inconvenient Traditional functionv Acting as payment tools（支付工具） Substitute for money, basic funct

12、ion Inconvenient for big deals in business, and also risks Widely accepted to take the place of money in circulation Can be endorsed(背书)v Acting as credit tools（信用工具） Core function because credit is the “life” of instrumentFunctions of Negotiable InstrumentsInstruments can take the place of currency

13、 in several aspects, but they are not currency.Instruments rely on private credit of issuer, acceptor or endorser, legal currency is the mandatory circulation(强制流通）by law.The creditor has to accept when the debtor repays with the legal currency, but he has title to refuse accepting the instruments a

14、s repayment if he does not agree.Instruments can be restricted by time, limitation and invalidity, instruments can play the roles of payment and credit, they will no longer have those currency functions following their termination（终结）.Legal System for Negotiable InstrumentsAll legal rules and laws w

15、ith regard to negotiable (credit) instruments fall into two categories:British and US Legal System(英美法系）Representing the British Commonwealth of Nations and USA. Including Bills of Exchange Act established in 1882 in Britain and Uniform Negotiable Instruments Law of 1896 in USA.Continental Legal Sys

16、tem（大陆法系）Representing the main countries in the European ContinentReferring to Uniform Law for Credit Instruments at Geneva which was established in 1931British Commonwealth of Nations Such as: Canada, India, AustraliaAnd New ZealandLegal System for Negotiable InstrumentsThe UN has also drawn laws i

17、n this field in an effort to eliminate the major differences existing in the two systems. Convention on international Bills of Exchange and International Promissory notes Convention on International Check2.2 Bill of Exchange01What is Bill of Exchange02Elements of Bill of Exchange03Acts on Bill of Ex

18、change04ClassificationWhat is Bill of Exchangev A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money,

19、 to, or to the order of, a specified person, or to bearer.v 汇票是由出票人向另一人签发的要求即期、定期或在可以确定的将来时间向指定人或根据其指令向来人无条件支付一定金额的书面命令。v In a simple words, A bill of exchange or draft is a three-party instrument that is an unconditional written order by one party that orders the second party to pay money to a thir

20、d party.What is Bill of Exchangeuthree parties(三个当事人） One party orders another party to pay a “sum certain of money to a third party. “Drawer”Party who draws the bills and orders another to pay the third party. (usually exporter in international trade) “Drawee”(payer) Party who is ordered to pay the

21、 third party. (usually the importer or the appointed banker under a letter of credit in international trade) “Payee”Third party who will receive payment (usually exporter or his appointed bank or person)Bills of ExchangeBills of ExchangeBills of ExchangeElements of Bill of ExchangeuThe word “exchang

22、e” “bill of exchange ”or “draft” E.g “Exchange for 100 USD” or “Draft for 100 USD” The purpose of indicating this word on a bill of exchange is to distinguish a bill from other kinds of negotiable instrument such as promissory notes or cheques.Elements of Bill of Exchangeu an unconditional order in

23、writing (无条件书面支付命令） must be in writing, including printed and typewritten. Oral expression is invalid. Should be imperative, not subjunctive mood. 必须使用祈使句，不能使用虚拟语气 E.g. Pay to john Smith.or Pay to A Co. or order. “Would you please pay to.”or “I shall be pleased if you would pay.”is invalid.Elements

24、of Bill of Exchangeuan unconditional order in writing (无条件书面支付命令） Without any restriction or condition付款人付款不能以收款人履行某项行为或事件为前提。 “pay to .providing”or “pay to . On the condition that.”is invalid. E.g. “pay to A Co. the sum of five thousand US dollars providing the goods they supply are complied with c

25、ontract. (invalid) Pay to john Smith or order the sum of 1000 USD when the ship “Queen” reaches the port of Shanghai. (invalid) The same would be true if payment was made conditional upon the happening of a future uncertain event -a contingency.如果以某一将来不确定事件-偶发事件-的发生作为付款的先决条件，也同样使汇票无效。Elements of Bil

26、l of ExchangeuTenor(付款期限）:Tenor means the time to effect payment and it is indicated in the definition of the bill of exchange as “on demand or at a fixed or determinable future time”. According to tenor, there are two board types of bill: demand bill and usance bill. Demand bill (or sight bill) a b

27、ill payable on demand. The drawee will be required to pay at once when he sees the bill or when the bill is presented to him for payment. A demand bill (or sight bill ) can be expressed in the following ways: On demand pay. On presentation pay. At sight pay.Elements of Bill of ExchangeuTenor(付款期限）Us

28、ance bill Payable at a future time, Also called time bill or term bill Usance bill is usually expressed in the following ways: Payable at a fixed time after sight E.g. “Pay 30 days after sight.”means 30 days after the accepting date is the due date to effect payment. Payable at a fixed time after da

29、te E.g. “Pay 60 days after date.”means the due date will be 60 days after the issuing date. Payable at a fixed future date. E.g. “Pay on Sept.30,2008.” Payable at a fixed time after the occurrence of a specific event which is certain to happen E.g. Pay 3 months after the B/L date.”Elements of Bill o

30、f ExchangeuTenor(付款期限）Usance bill How to calculate the due date? If a bill is payable at a fixed time after sight, after date or after the happening of a specific event, the time of payment is calculated by counting in the date of payment but counting out（不算） the accepting date, the issuing date or

31、the date of happening of the specified event. After calculation, if the date of payment falls on a non-business day, the bill shall be payable on the succeeding business day.Elements of Bill of ExchangeuTenor(付款期限）Usance bill How to calculate the due date? If a bill is payable at a fixed time from a

32、 fixed date, then this fixed date should be counted in. If a bill is payable at a month or several months after sight or after date, the time of payment is calculated by the corresponding date of that month. If that day is not exist, then the last day of that month is the due date. The word “after”

33、should be understood to exclude the date mentioned and the word “from” should be understood to include the date mentioned.Elements of Bill of ExchangeuPayee:Payable to a specified person or his order or to bearer (three types of bill)(汇票抬头） payable to a specified person only or to a specified person

34、 not negotiable/transferable.E.g. Pay to Mr. White only.E.g. Pay to Mr. White not transferable.restrictive orderdemonstrative orderbearer order Payable to a specified person or some other person designated by him, without further words prohibiting transfer.E.g. Pay to Mr.White.E.g. Pay to Mr. White

35、or order. Payable to bearer with no specified person as a payee thereon. Any person holding a bearer order bill will become the owner of the bill.E.g. Pay to bearer.E.g. Pay to bearer or Mr. White.Elements of Bill of ExchangeuA Sum Certain in Money (汇票金额）Payable at fixed amount. There should be no “

36、about” or “or so” to modify the amount. e.g. If a bill is “payable at USD two thousand only”, it is a valid bill. If a bill is “payable at about USD two thousand”, it is an invalid bill.The amount in words and figures. The payable amount should be expressed both in words and figures. If they differ,

37、 the words have the priority over the figures.In money The bill should be made payable only in money other than in other kinds of physical goods or intangible services. E.g. “pay to the order of Mary White the sum of fifty pounds and give her a suit of clothes” is not accepted as bill of exchange.El

38、ements of Bill of ExchangeuDrawers Signature出票人签字出票人签字 “Any symbol executed or adopted by a party with present intention to authenticate a writing.” The drawers signature serves as a means of authenticating a bill of exchange. 签定，证实，使生效 The bill is invalid without signature. Forged or unauthorized s

39、ignature of the drawer makes the bill invalid, too.Elements of Bill of ExchangeuName and address of the drawee (付款人） must be clear and definite. usually guide by the word TouDate and place of issue(出票时间地点） date: to decide the date of presentation or the date of acceptance; to make sure maturity date

40、 if the bill is payable after date of issue; to determine the behavior ability of drawer. place: very important, whether the draft is valid or not depends on the local law of the issuding place.Elements of Bill of ExchangeuReasoning of issuing 出票依据 the reason of issuance, i.e according to which L/C

41、of which bank the bills of exchange are issued. (“Drawn under L/C No.569547 of Bank Brussels Lambert, 18 Rafles Place HEX 42-00 OUB Centre Singapare048616, Dated December 18,1998”)Elements of Bill of ExchangeuBill of exchange is drawn in setsof two 开立一式2份Elements of Bill of ExchangeAmong 10 elements

42、 of draft, there are 7 elements are necessary factors to make the draft valid according to our law. the word Exchange an unconditional order in writing payer payee a sum certain in money drawers signature date of issueActs on Bill of ExchangeIssue（出票）Endorsement（背书）Presentation（提示）Acceptance（承兑）Paym

43、ent（付款）Dishonour（拒付或退票Recourse（追索)Notice of Dishonour (拒付通知)Protest(拒绝证书)Guarantee(保证) Discounting(折扣)Issue（出票）To issue a draft = To draw a B/EAct of issue comprises two acts to be performed by the drawer. One act is to draw and sign a draft; another is to deliver it to the payee.Endorsement（背书）Endo

44、rsement is the signature of the endorser made on the back of bill of exchange.The aim of the endorsement is to transfer the draft from one person to another.Endorsement comprises two acts. One is to sign on the back of the draft, another is to deliver it to the endorsee. Must be made for the whole a

45、mount of the draft, and an endorsement for a partial amount will be considered as invalid endorsement.Must be written on the back side of the draft and an endorsement on other documents is invalid. Two excetion: draft is full and no space to make endorsement, it allows to add a stick which is consid

46、ered to be a part of draft for endorsement; if law allow copy draft is a part of draft, then endorsement could be written on the copy.背书人被背书人Endorsement（背书）n Four types of endorsement Blank endorsement: an endorsement in blank is one that shows an endorsers signature only and specifies no endorsee.I

47、t is also called a general endorsement. A draft so endorsed becomes payable to bearer.For exampleFor A Co., London(the endorser) Signature (of the endorser)Endorsement（背书）Special endorsement: A special endorsement is one that specifies an endorsee to whom or to whose order the draft is to be paid, i

48、n addition to the signature of an endorser. For examplePay to the order of B Co., London(the endorsee) For A Co., London(the endorser) Signature (of the endorser)Endorsement（背书）Restrictive endorsement: An endorsement is restrictive when it prohibits further transfer of the draft.Pay to ABC Bank only

49、-(the endorsee)For A Co.,London (the endorser)Signature (of the endorser)OrPay to ABC Bank not negotiable(the endorsee) For A Co.,London (the endorser) Signature (of the endorser)or Pay to ABC Bank not transferable(the endorsee) For A Co,.London (the endrser) Signature(of the endorser)or Pay to ABC

50、Bank not to order(the endorsee) For A Co.,London (the endorser) Signature(of the endorser)Endorsement（背书）Conditional endorsement: A conditional endorsement transfers ownership subject to a specified term and condition. For examplePay to the order of B Co. on delivery of B/L to Hong Kong Bank. For A

51、Co., LondonSignaturePresentation（提示）Presentment/Presentation is to be made by the holder to the person designated as drawee for payment if it is a sight bill and for acceptance and payment if it is a time bill. Presentation for paymentPresentation for acceptancesight billTim billPresentation for acc

52、eptancePresentation for paymentPresentation（提示）v As a general rule, a bill of exchange must be duly presented for payment, and if it is not so presented, the drawer and endorsers are discharged. This is a vitally important rule. duly按时discharge 解除债务Acceptance（承兑） Acceptance of a draft is a significa

53、tion by the drawee of his assent to the order given by the drawer. The drawee signs his name across the face of the bill that he will pay when it falls dueAcceptance Promise to payDelivering the billWriting word accepted”Date of acceptingSignature DraweeHolderAcceptance（承兑） The purpose of acceptance

54、: 1.Establish the liability of the parties 确定各方的债务责任 2. Present the bill for payment 便于提示付款 3. If necessary, give notice of dishonor 如果必要，作成拒付通知 Characteristics of Acceptance 1. The acceptor is the drawee. 2. The word “ACCEPTED”, the date of acceptance, and the place of payment and the acceptors sig

55、nature are written on the face of the draft. 3. An acceptance is a promise of payment.Acceptance（承兑） Presentation for acceptance is legally necessary in three cases: (1)where a bill is payable after sight, presentation for acceptance is necessary in order to fix the maturity of the instrument; (2)wh

56、ere a bill expressly stipulates that it must be presented for acceptance, and (3)where a bill is drawn payable elsewhere than at the residence or place of business of the drawee. Except in the three cases listed above, it is not obligatory to present a bill for acceptance. The holder may await the m

57、aturity of the bill and then present it for payment. Payment（付款）Act of payment is performed when a bill of exchange is paid. A bill is discharged by payment in due course only when such payment is made by or on behalf of the drawee or the acceptor.discharged =解除付款业务payment in due course=正当付款,按正常程序付款

58、on behalf of=代表某人利益 payment in due course refers to: Payment should be made by or on behalf of the drawee or the acceptor and not by the drawer or any endorser. The payment made by the drawer or any endorser is not a final payment because he may claim payment from the drawee or the accetor. Payment

59、should be made on or after the maturity date of the bill and can not be made in advance.Payment（付款） payment in due course refers to: Payment should be made to the holder and if the bill has been transferred, the payer will check the endorsements or at least the sequence of the endorsements before ma

60、king payment. Payment should be made in good faith, without knowing that the holders title thereto is defective. In short, payment in due course means payment made on or after the maturity of the bill to the holder thereof in good faith and without notice that his title to the bill is defective. Whe